SB318 By Senator Whatley RFD Finance and Taxation General Fund Rd 1 15-MAR-17

SYNOPSIS: Under existing law, appointed indigent defense counsel representing an indigent in a trial court or during an appeal is paid a fee based on the number of hours reasonably spent working on the case, computed at the rate of $70 per hour.

This bill would increase the rate of the fee paid to appointed indigent counsel for representation of an indigent in a trial court or during an appeal to a rate of not lower than $125 per hour.

This bill would also increase the caps on total fees indigent counsel can charge the state for representing an indigent to a level commensurate with the increase in the rate of fee paid for indigent representation in a trial or appeals court.

A BILL TO BE ENTITLED AN ACT

Relating to indigents; to amend Sections 15-12-21 and 15-12-22, Code of Alabama 1975, to increase the rate of the fee paid to appointed indigent counsel for the representation of an indigent in a trial court or during an appeal to a rate of not lower than $125 per hour; to increase the caps on total fees indigent counsel may charge for representing an indigent to a level commensurate with the increase in the rate of fee paid for indigent representation during trial or appeal.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 15-12-21 and 15-12-22, Code of Alabama 1975 are amended as follows:

§15-12-21.

"(a) If it appears to the trial court that an indigent defendant is entitled to counsel, that the indigent defendant does not expressly waive the right to assistance of counsel, and that the indigent defendant is not able financially or otherwise to obtain the assistance of counsel through another indigent defense system for the circuit, the court shall appoint counsel to represent and assist the defendant. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the indigent defendant to the best of his or her ability.

"(b) If it appears to the trial court in a delinquency case, need of supervision case, or other judicial proceeding in which a juvenile is a party, that the juvenile is entitled to counsel and that the juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for the juvenile. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile to the best of his or her ability.

"(c) If it appears to the trial court that the parents, guardian, or custodian of a juvenile who is a party in a judicial proceeding, are entitled to counsel and the parties are unable to afford counsel, upon request, the court shall appoint counsel to represent and assist the parents, guardian, or custodian. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the parties to the best of his or her ability.

"(d) If the appropriate method for providing indigent defense services is by appointed counsel in a case described in subsections (a), (b), and (c), including cases tried de novo in circuit court on appeal from a juvenile proceeding, appointed counsel shall be entitled to receive for their services a fee to be approved by the trial court. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the a rate of seventy dollars ($70) not lower than one hundred and twenty five dollars ($125) per hour for time reasonably expended on the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:

"(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee.

"(2) Except for cases covered by subdivision (1), in cases where the original charge is a Class A felony, the total fee shall not exceed four thousand dollars ($4,000) seven thousand dollars ($7,000).

"(3) In cases where the original charge is a Class B felony, the total fee shall not exceed three thousand dollars ($3,000) five thousand five hundred dollars ($5,500).

"(4) In cases where the original charge is a Class C or Class D felony, the total fee shall not exceed two thousand dollars ($2,000) three thousand five hundred dollars ($3,500).

"(5) In juvenile cases, the total fee shall not exceed two thousand five hundred dollars ($2,500) four thousand five hundred dollars ($4,500).

"(6) In all other cases, the total fee shall not exceed one thousand five hundred dollars ($1,500) two thousand five hundred ($2,500).

"Counsel shall also be entitled to be reimbursed for any nonoverhead expenses reasonably incurred in the representation of his or her client, with any expense in excess of three hundred dollars ($300) subject to advance approval by the trial court as necessary for the indigent defense services and as a reasonable cost or expense. Reimbursable expenses shall not include overhead expenses. Fees and expenses of all experts, investigators, and others rendering indigent defense services to be used by counsel for an indigent defendant shall be approved in advance by the trial court as necessary for the indigent defense services and as a reasonable cost or expense. Retrials of any case shall be considered a new case for billing purposes. Upon review, the director may authorize interim payment of the attorney fees or expenses, or both.

"(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, not to exceed 90 days, counsel shall submit a bill for services rendered to the office. The bill shall be accompanied by a certification by the trial court that counsel provided representation to the indigent defendant, that the matter has been concluded, and that to the best of his or her knowledge the bill is reasonable based on the defense provided. The trial court need not approve the items included on the bill or the amount of the bill, but may provide any information requested by the office or the indigent defense advisory board relating to the representation. The bill for compensation of appointed counsel shall be submitted to the office. After review and approval, the office shall recommend to the Comptroller that the bill be paid. The office may forward the bill to the indigent defense advisory board for review and comment prior to approval. The Comptroller shall remit payment in a timely manner not to exceed 90 days from submission. In the event that payment is not made within 90 days of submission, counsel shall be entitled to receive interest at a rate of six percent until such payment is issued.

§15-12-22.

"(a) In all criminal cases wherein an indigent defendant has an appeal which lies directly to an appellate court and the indigent defendant expresses his or her desire to appeal, the court shall cause to be entered upon its minutes a recital of notice of appeal.

"(b) If it appears that the indigent defendant desires to appeal and is unable financially or otherwise to obtain the assistance of counsel on appeal and the indigent defendant expresses the desire for assistance of counsel, the trial court shall appoint counsel to represent and assist the indigent defendant on appeal, through the indigent defense system for such cases. The presiding judge of the court to which the appeal is taken shall have authority to appoint counsel through the indigent defense system for such cases in the event the trial court fails to appoint and in the event it becomes necessary to further provide for counsel. It shall be the duty of the counsel, as an officer of the court and as a member of the bar, to represent and assist the indigent defendant in the appeal.

"(c) If appointed counsel is the appropriate method option selected for an indigent defendant for the appeal from a decision in any trial court proceeding, he or she the appointed counsel shall be entitled to receive for his or her services a fee to be approved by the office.

The amount of the fee shall be based on the number of hours spent by the counsel in working on the appeal.

"(1) The amount of the fee shall be based on the number of hours reasonably spent by the attorney in working on the prosecution of the appeal and shall be computed at the a rate of seventy dollars ($70) not lower than one hundred and twenty five dollars ($125) per hour for time reasonably expended in the prosecution of representing the indigent during the appeal, and any subsequent petition for writ of certiorari.

"(2) The total fees awarded to any one attorney in any appeal and any subsequent petition for writ of certiorari, shall not, however, exceed two thousand five hundred dollars ($2,500) three thousand five hundred dollars ($3,500), and shall be in addition to any fees awarded on the trial court level. In those cases where the state takes a pretrial appeal, appointed counsel shall be entitled to bill separately for services on the pretrial and post-trial appeals, up to two thousand five hundred dollars ($2,500) three thousand five hundred dollars ($3,500)for each appeal. In those cases where a petition for writ of certiorari is filed in the Alabama Supreme Court, counsel shall be entitled to bill separately for all services rendered after the Court of Criminal Appeals or the Court of Civil Appeals overrules the application for rehearing, or after the decision of the Court of Criminal Appeals or the Court of Civil Appeals in the case of a pretrial appeal, up to a separate limit of two thousand five hundred dollars ($2,500) three thousand five hundred dollars ($3,500). Notwithstanding the foregoing provisions of this subdivision, the maximum amounts set forth above in this subdivision may be waived by the appropriate appellate court and the director for good cause shown. Counsel shall also be entitled to be reimbursed for any nonoverhead expenses reasonably incurred in the representation of his or her client, with any expense in excess of three hundred dollars ($300) subject to advance approval by the appellate court as necessary for the indigent defense services and as a reasonable cost or expense and shall be paid directly by the office upon submission from the attorney. Reimbursable expenses shall not include overhead expenses. Fees and expenses of all experts, investigators, and others rendering indigent defense services to be used by counsel for an indigent defendant shall be approved in advance by the appellate court as necessary for the indigent defense services and as a reasonable cost or expense. Upon review, the director may authorize interim payment of the attorney fees or expenses, or both.

"(3) Within a reasonable time after the disposition of the appeal, not to exceed 90 days, counsel shall submit a bill for services rendered to the office for review and approval and, if approved, the office shall recommend the bill for payment by the Comptroller. The Comptroller shall remit payment in a timely manner."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Indigents

Courts

Attorneys

Trial Court

Appeals Court

Fees

Code Amended