06 LC 29
2393S
The
House Committee on Judiciary Non-civil offers the following substitute to SB
503:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 21A of Title 15 and Title 17 of the Official Code of Georgia
Annotated, relating respectively to judicial accounting and criminal procedure,
so as to change certain provisions relating to the Georgia Public Defender
Standards Council and the provision of legal services to indigent persons; to
clarify that the application fee for indigent defense services is not a
prerequisite to obtaining legal services; to provide that such fee may be paid
as a condition of probation; to define an indigent person with respect to the
federal poverty level; to provide for staggered terms for the councilmembers of
the Georgia Public Defender Standards Council; to change certain provisions
relating to the standards created by the Georgia Public Defender Standards
Council; to change certain provisions relating to guidelines for determining
indigency; to change certain provisions relating to the budget of the council;
to provide that public defenders shall not be authorized to utilize a badge,
shield, or similar item; to change certain provisions relating to public
defenders; to change certain provisions relating to contracting with the
Department of Administrative Services for personnel paid by local governments;
to change certain provisions relating to the budget for the Office of the
Georgia Capital Defender; to provide for related matters; to provide for an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
21A of Title 15 of the Official Code of Georgia Annotated, relating to judicial
accounting, is amended by striking subsections (b) and (e) of Code Section
15-21A-6, relating to additional filing fees and application fee for free legal
services, and inserting in lieu thereof the following:
"(b)
Any person who applies for or receives legal defense services under Chapter 12
of Title 17 shall pay the entity providing the services a single fee of $50.00
for the application for, receipt of, or application for and receipt of such
services. The application fee may not be imposed if the payment of the fee is
waived by the court. The court shall waive the fee if it finds that the
applicant is unable to pay the fee or that hardship will result if the fee is
charged. If
the application fee required by this subsection has not been paid or waived at
the time the defendant is sentenced, the court shall impose such fee as a
condition of
probation."
"(e)
A public entity other than an entity providing legal defense services under
Chapter 12 of Title 17 may charge, in addition to any other fee or surcharge
authorized by law, a $50.00 application fee unless waived by the court for
inability to pay or hardship.
If the
application fee required by this subsection has not been paid or waived at the
time the defendant is sentenced, the court shall impose such fee as a condition
of probation. Any such fee shall be
retained by the entity providing the services or used as otherwise provided by
law and shall not be subject to payment to the authority or deposit into the
state
treasury."
SECTION
2.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended in Chapter 10, relating to sentence and punishment, by adding a new Code
section to read as follows:
"17-10-8.1.
In
any case in which a defendant receives legal defense services pursuant to
Chapter 12 of Title 17 where the defendant has not paid the application fee
required by Code Section 15-21A-6 and the court has not waived such fee at the
time of sentencing, the court shall impose such fee as a condition of
probation."
SECTION
3.
Said
title is further amended by striking Code Section 17-12-2, relating to
definitions, and inserting in lieu thereof the following:
"17-12-2.
As
used in this chapter, the term:
(1)
'Assistant public defender' means an attorney who is employed by any circuit
public defender or conflict defender office.
(2)
'Circuit public defender' means the head of a public defender office providing
indigent defense representation within any given judicial circuit of this
state.
(3)
'Circuit public defender office' means the office of any of the several circuit
public defenders.
(4)
'Council' means the Georgia Public Defender Standards Council.
(5)
'Indigent
person' or 'indigent defendant' means:
(A)
A person charged with a misdemeanor, violation of probation, or a municipal,
county, or juvenile offense punishable by imprisonment who earns or, in the case
of a juvenile, whose parents earn, less than 125 percent of the federal poverty
guidelines unless there is evidence that the person has other resources that
might reasonably be used to employ a lawyer without undue hardship on the person
or his or her dependents; and
(B)
A person charged with a felony who earns or, in the case of a juvenile, whose
parents earn, less than 150 percent of the federal poverty guidelines unless
there is evidence that the person has other resources that might reasonably be
used to employ a lawyer without undue hardship on the person or his or her
dependents.
In
no case shall a person whose maximum income level exceeds 150 percent of the
federal poverty level or, in the case of a juvenile, whose household income
exceeds 150 percent of the federal poverty level be an indigent person or
indigent defendant.
(6)
'Public defender' means an attorney who is employed in a circuit public defender
office or conflict defender office or who represents an indigent person pursuant
to this
chapter."
SECTION
4.
Said
title is further amended by striking Code Section 17-12-3, relating to the
Georgia Public Defender Standards
Counciĺs
creation and membership, and inserting in lieu thereof the
following:
"17-12-3.
(a)
There is created the Georgia Public Defender Standards Council to be composed of
11 members.
(b)
Ten
members
The
membership of the council shall be
appointed as follows:
(1)
Two members shall be appointed by the Governor, the Lieutenant Governor, the
Speaker of the House of Representatives, the Chief Justice of the Supreme Court
of Georgia, and the Chief Judge of the Georgia Court of Appeals as further set
forth in paragraph (2) of this subsection. The members of the council shall be
individuals with significant experience working in the criminal justice system
or who have demonstrated a strong commitment to the provision of adequate and
effective representation of indigent defendants.
The
These
members shall serve terms of four
years;
provided, however, that the members appointed from the even-numbered judicial
administration circuits shall serve initial terms of six years and thereafter
shall serve terms of four
years;
(2)
The members appointed pursuant to paragraph (1) of this subsection shall be
chosen so that each of the ten judicial administration districts in the state is
represented and so that each appointing authority shall rotate the particular
judicial administration district for which he or she is responsible for
appointing. The appointments shall be as follows:
(A)
For the initial appointments:
(i)
The Governor shall appoint one person who resides in judicial administration
district 1 and one person who resides in judicial administration district
2;
(ii)
The Lieutenant Governor shall appoint one person who resides in judicial
administration district 3 and one person who resides in judicial administration
district 4;
(iii)
The Speaker of the House of Representatives shall appoint one person who resides
in judicial administration district 5 and one person who resides in judicial
administration district 6;
(iv)
The Chief Justice of the Supreme Court of Georgia shall appoint one person who
resides in judicial administration district 7 and one person who resides in
judicial administration district 8; and
(v)
The Chief Judge of the Georgia Court of Appeals shall appoint one person who
resides in judicial administration district 9 and one person who resides in
judicial administration district 10;
(B)
For the first subsequent council appointments:
(i)
The Governor shall appoint one person who resides in judicial administration
district 3 and one person who resides in judicial administration district
4;
(ii)
The Lieutenant Governor shall appoint one person who resides in judicial
administration district 5 and one person who resides in judicial administration
district 6;
(iii)
The Speaker of the House of Representatives shall appoint one person who resides
in judicial administration district 7 and one person who resides in judicial
administration district 8;
(iv)
The Chief Justice of the Supreme Court of Georgia shall appoint one person who
resides in judicial administration district 9 and one person who resides in
judicial administration district 10; and
(v)
The Chief Judge of the Georgia Court of Appeals shall appoint one person who
resides in judicial administration district 1 and one person who resides in
judicial administration district 2;
(C)
For the second subsequent council appointments:
(i)
The Governor shall appoint one person who resides in judicial administration
district 5 and one person who resides in judicial administration district
6;
(ii)
The Lieutenant Governor shall appoint one person who resides in judicial
administration district 7 and one person who resides in judicial administration
district 8;
(iii)
The Speaker of the House of Representatives shall appoint one person who resides
in judicial administration district 9 and one person who resides in judicial
administration district 10;
(iv)
The Chief Justice of the Supreme Court of Georgia shall appoint one person who
resides in judicial administration district 1 and one person who resides in
judicial administration district 2; and
(v)
The Chief Judge of the Georgia Court of Appeals shall appoint one person who
resides in judicial administration district 3 and one person who resides in
judicial administration district 4;
(D)
For the third subsequent council appointments:
(i)
The Governor shall appoint one person who resides in judicial administration
district 7 and one person who resides in judicial administration district
8;
(ii)
The Lieutenant Governor shall appoint one person who resides in judicial
administration district 9 and one person who resides in judicial administration
district 10;
(iii)
The Speaker of the House of Representatives shall appoint one person who resides
in judicial administration district 1 and one person who resides in judicial
administration district 2;
(iv)
The Chief Justice of the Supreme Court of Georgia shall appoint one person who
resides in judicial administration district 3 and one person who resides in
judicial administration district 4; and
(v)
The Chief Judge of the Georgia Court of Appeals shall appoint one person who
resides in judicial administration district 5 and one person who resides in
judicial administration district 6; and
(E)
For the fourth subsequent council appointments:
(i)
The Governor shall appoint one person who resides in judicial administration
district 9 and one person who resides in judicial administration district
10;
(ii)
The Lieutenant Governor shall appoint one person who resides in judicial
administration district 1 and one person who resides in judicial administration
district 2;
(iii)
The Speaker of the House of Representatives shall appoint one person who resides
in judicial administration district 3 and one person who resides in judicial
administration district 4;
(iv)
The Chief Justice of the Supreme Court of Georgia shall appoint one person who
resides in judicial administration district 5 and one person who resides in
judicial administration district 6; and
(v)
The Chief Judge of the Georgia Court of Appeals shall appoint one person who
resides in judicial administration district 7 and one person who resides in
judicial administration district 8.
All
subsequent appointments shall continue on, with the entire cycle starting over
again as specified in subparagraph (A) of this paragraph;
(3)
In addition,
there
the eleventh
member shall be one circuit public
defender who shall serve on the council. After the initial appointments as set
forth in paragraph (4) of this subsection, the circuit public defender to serve
on the council shall be elected by a majority vote of all the circuit public
defenders. The circuit public defender councilmember shall serve terms of two
years;
(4)
All initial appointments shall be made to become members of the council on July
1, 2003, and their successors shall become members of the council on July 1
following their appointment.
The initial
appointees from the even-numbered judicial administration circuits shall serve
until June 30, 2009. Notwithstanding the
provisions of paragraph (3) of this subsection, the initial member representing
the circuit public defenders shall be made by the Supreme Court of Georgia. The
person representing the circuit defender position on the initial council shall
be engaged on a full-time basis in the provision of criminal defense to the
indigent;
(5)
Any vacancy for a member appointed pursuant to paragraphs (1) and (2) of this
subsection shall be filled by the appointing
authority, and
such appointee shall serve the balance of the vacating
membeŕs
unexpired term; and
(6)
Any vacancy for a member appointed pursuant to paragraph (3) of this subsection
shall be the successor to the circuit public defender as set forth in subsection
(d) of Code Section 17-12-20.
(c)
In making these appointments, the appointing authorities shall seek to identify
and appoint persons who represent a diversity of backgrounds and experience and
shall solicit suggestions from the State Bar of Georgia, state and local bar
associations, the Georgia Association of Criminal Defense Lawyers, the councils
representing the various categories of state court judges in Georgia, and the
Prosecuting
Attorneyś
Council of the State of Georgia, as well as from the public and other interested
organizations and individuals within the state. The appointing authorities
shall not appoint a prosecuting attorney as defined in paragraph (6) of Code
Section 19-13-51, any employee of a prosecuting
attorneýs
office, or an employee of the Prosecuting
Attorneyś
Council of the State of Georgia to serve on the council.
(d)
This Code section shall become effective on July 1, 2003, for purposes of making
the initial appointments to the
council."
SECTION
5.
Said
title is further amended by striking paragraph (8) of subsection (b) of Code
Section 17-12-8, relating to approval by the Georgia Public Defender Standards
Council of programs for representation of indigents and development of
standards, and inserting in lieu thereof the following:
"(8)
Standards for
determining
indigence and for assessing and collecting
the costs of legal representation and related
services;"
SECTION
6.
Said
title is further amended by striking subsection (a) of Code Section 17-12-24,
relating to guidelines for determining indigency, and inserting in lieu thereof
the following:
"(a)
The council
shall establish guidelines for determining the financial eligibility of persons
claiming indigence, and the circuit public
defender and any other person or entity providing indigent defense services
shall use
the guidelines to determine the financial
eligibility of any person or juvenile arrested, detained, or charged in any
manner in
accordance with the definition of an indigent person set forth in Code Section
17-12-2 that would entitle him or her to
representation under this
article
chapter."
SECTION
7.
Said
title is further amended by striking subsection (b) of Code Section 17-12-26,
relating to the budget of the council, and inserting in lieu thereof the
following:
"(b)
The budget of the council shall include the budget of all circuit public
defenders and other offices and entities, including conflict defender offices
and appointed attorneys providing indigent defense representation under the
authority of this article and the
multicounty
public defender office
Office of the
Georgia Capital Defender and the office of
the mental health
advocate."
SECTION
8.
Said
title is further amended by striking subsection (g) of Code Section 17-12-27,
relating to the appointment of assistant public defenders, salary, and
promotions, and inserting a new subsection (g) to read as follows:
"(g)
All full-time state paid employees of the office of the circuit public defender
shall be state employees in the unclassified service of the State Merit System
of Personnel Administration with all benefits of such appointed state employees
as provided by law.
A circuit
public defender, assistant public defender, or local public defender may be
issued an employee identification card by his or her employing agency; provided,
however, no employer of any such public defender shall issue nor shall any
public defender display, wear, or carry any badge, shield, card, or other item
that is similar to a law enforcement
officeŕs
badge or that could be reasonably construed to indicate that the public defender
is a peace officer or law enforcement
official."
SECTION
9.
Said
title is further amended by striking Code Section 17-12-32, relating to
contracting with the Department of Administrative Services for personnel paid by
local governments, and inserting in lieu thereof the following:
"17-12-32.
The
governing authority of any county or municipality within the judicial circuit
which provides additional personnel for the office of circuit public defender
may contract with the
Department
of Administrative Services
council
to provide such additional personnel in the same manner as is provided for state
paid personnel in this article. Any such personnel shall be considered state
employees and shall be entitled to the same fringe benefits as other state paid
personnel employed by the circuit public defender pursuant to this article. The
governing authority of such county or municipality shall transfer to the
department
council
such funds as may be necessary to cover the compensation, benefits, travel, and
other expenses for such
personnel."
SECTION
10.
Said
title is further amended by striking Code Section 17-12-124, relating to the
budget for the Office of the Georgia Capital Defender, and inserting in lieu
thereof the following:
"17-12-124.
The
council shall prepare an annual budget showing all anticipated expenses of the
office for the following fiscal year, which shall be the same as the fiscal year
of this state. The budget shall be submitted by the capital defender to the
council and for Fiscal Year 2005
and
thereafter shall include the proposed
budget for representation of all indigent persons accused of a capital felony
for which the death penalty is or is likely to be
sought."
SECTION
11.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
12.
All
laws and parts of laws in conflict with this Act are repealed.