40-14-202 - Appointment by court. - Tennessee Statutes

40-14-202. Appointment by court.

(a)  In all felony cases, if the accused is not represented by counsel and the court determines by the manner provided in subsection (b) that the accused is an indigent person who has not competently waived the right to counsel, the court shall appoint to represent the accused either the public defender, if there is one for the county, or, in the absence of a public defender, a competent attorney licensed in this state. The court may call upon any legal aid agency operating in conjunction with an accredited college of law to recommend attorneys for appointment under the provisions of this part. The court may, upon its own motion or upon application of counsel appointed under this section, name additional attorneys to aid and assist in the defense. Each appointment of counsel shall be denoted by an appropriate entry upon the minutes of the court, which shall state the name of counsel and the date of counsel's appointment, but failure of the court to make such a minute entry shall not in any way invalidate the proceeding if an attorney was in fact appointed. Upon the appointment of an attorney under this section, no further proceeding shall be had until the attorney so appointed has had sufficient opportunity to prepare the case. If the court should determine that the accused is not an indigent person, the court shall then advise the accused with respect to the accused's right to counsel and afford the accused an opportunity to acquire counsel.

(b)  Whenever an accused informs the court that the accused is financially unable to obtain the assistance of counsel, it is the duty of the court to conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance of counsel and, thereafter, make a finding as to the indigency of the accused. All statements made by the accused seeking the appointment of counsel shall be by sworn testimony in open court or written affidavit sworn to before the judge.

(c)  When making a finding as to the indigency of an accused, the court shall take into consideration:

     (1)  The nature of the services to be rendered;

     (2)  The usual and customary charges of an attorney in the community for rendering like or similar services;

     (3)  The income of the accused regardless of source;

     (4)  The poverty level income guidelines compiled and published by the United States department of labor;

     (5)  The ownership or equity in any real or personal property;

     (6)  The amount of the appearance or appeal bond, whether the party has been able to obtain release by making bond, and, if the party obtained release by making bond, the amount of money paid and the source of the money; and

     (7)  Any other circumstances presented to the court which are relevant to the issue of indigency.

(d)  If a social service agency services the criminal justice system of the judicial district, and the court has reasonable cause to believe the accused has the financial resources to employ counsel, the court shall order the agency to conduct an investigation into the financial affairs of the accused and report its findings directly to the court. The court shall consider the contents of the agency's report in making its determination and the report shall be made a part of the record in the cause.

(e)  If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is financially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of the court any sum that the court determines the accused is able to pay. The sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused.

(f)  The clerk of the court shall collect all moneys paid by an accused pursuant to this section. When the accused fails to comply with the orders of the court, the clerk shall notify the court of the accused's failure to comply. At the conclusion of the proceedings in the trial court, the court shall order the clerk to pay to the attorney of record any funds that the clerk collected from the accused. The clerk of the court shall receive a commission of five percent (5%) of the moneys collected for the clerk's services in collecting, handling and making payment pursuant to the order of the court; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the commission shall be ten percent (10%).

(g)  Counsel who receives payment pursuant to the terms of this section, and who makes application for additional funds for expenses incurred and services rendered, shall report the payment in a report to the court to be made a part of the record in the cause.

(h)  No court shall appoint a member of the general assembly as counsel for an indigent defendant unless the judge of the court certifies that no other equally competent attorney is available to represent the defendant. If the judge so certifies, it shall not be considered a conflict of interest for the member to represent the defendant or to be compensated for the representation in the same manner and amount as other court appointed attorneys.

(i)  (1)  Every accused who informs the court that the accused is financially unable to obtain the assistance of counsel shall be required to complete the uniform affidavit of indigency.

     (2)  It is a Class A misdemeanor for any person to intentionally or knowingly misrepresent, falsify or withhold any information required by an affidavit of indigency.

(j)  Before and during the trial of a criminal matter, the cover sheets that reflect the total fees and expenses paid to defense counsel and that reflect the total amount paid for expert services from public funds for the use in representing an indigent criminal defendant or prosecuting a criminal defendant are a public record. In addition, a record of the total amount paid to an expert from public funds is a public record if the expert has offered evidence and is known to the public because of testimony on the record. Before and during the trial of a criminal matter, detailed attorney fees and expense claims, motions and orders dealing with the authorization of expert services and detailed time sheets of undisclosed experts shall be sealed and unavailable for public inspection.

[Acts 1965, ch. 217, § 4; 1979, ch. 354, §§ 1, 2; T.C.A., § 40-2017; Acts 1986, ch. 878, §§ 1, 7; 1992, ch. 892, § 1; 1995, ch. 456, § 8; 1996, ch. 865, § 1; 1998, ch. 876, § 1.]