GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2005

 

 

SESSION LAW 2005-250

SENATE BILL 592

 

 

AN ACT to make technical revisions to the law Governing indigent defense and entitlement to counsel.

 

The General Assembly of North Carolina enacts:

 

SECTION 1.  G.S. 7A-304(d)(1) reads as rewritten:

"(d)     (1)       In any criminal case in which the liability for costs, fines, restitution, attorneys' fees, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse such funds when paid in accordance with the following priorities:

a.         Sums in restitution to the victim entitled thereto;

b.         Costs due the county;

c.         Costs due the city;

d.         Fines to the county school fund;

e.         Sums in restitution prorated among the persons other than the victim entitled thereto;

f.          Costs due the State;

g.         Attorney's fees, including appointment fees assessed pursuant to G.S. 7A-455.1.

(2)       Sums in restitution received by the clerk of superior court shall be disbursed when:

a.         Complete restitution has been received; or

b.         When, in the opinion of the clerk, additional payments in restriction will not be collected; or

c.         Upon the request of the person or persons entitled thereto; and

d.         In any event, at least once each calendar year."

SECTION 2.  G.S. 7A-451(a) reads as rewritten:

"(a)      An indigent person is entitled to services of counsel in the following actions and proceedings:

(1)       Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;

(2)       A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;

(3)       A motion for appropriate relief under Chapter 15A of the General Statutes if the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment;

(4)       A hearing for revocation of probation;

(5)       A hearing in which extradition to another state is sought;

(6)       A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.

(7)       In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes;

(8)       In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible;

(9)       A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes;

(10)     Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.

(11)     A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes;

(12)     In the case of a juvenile alleged to be neglected abused, neglected, or dependent under Chapter 7A, Article 23 Subchapter I of Chapter 7B of the General Statutes;

(13)     A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes;

(14)     A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B-1101;

(15)     An action brought pursuant to Article 24B of Chapter 7A Article 11 of Chapter 7B of the General Statutes to terminate an indigent person's parental rights.

(16)     A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A-450.1, 7A-450.2, and 7A-450.3 shall not apply to this proceeding.

(17)     A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A-475 or G.S. 130A-145."

SECTION 3.  G.S. 7A-455.1 reads as rewritten:

"§ 7A-455.1.  Appointment fee in criminal cases.

(a)       Each person who requests the appointment of for whom counsel is appointed in a criminal case at the trial level shall pay to the clerk of court a nonrefundable an appointment fee of fifty dollars ($50.00) at the time of appointment. ($50.00). No fee shall be due if the court finds that the person is not entitled to the appointment of counsel. unless the person is convicted.

(b)       The appointment fee in this section is due regardless of the outcome of the proceedings. If paid in full at the time of appointment, the fifty dollars ($50.00) paid shall be credited against any amounts the court determines to be owed for the value of legal services rendered to the defendant. If not paid in full at the time of appointment, the The fifty-dollar ($50.00) fee shall be added to any amounts the court determines to be owed for the value of legal services rendered to the defendant and shall be collected in the same manner as attorneys' fees are collected for such representation. If the fee is not paid in full at the time of appointment, and no attorneys' fees are found due when the action is finally determined at the trial level, a judgment shall be entered, docketed, and indexed pursuant to G.S. 1-233 in the amount of fifty dollars ($50.00) and shall constitute a lien as prescribed by the general law of the State applicable to judgments.

(c)       The attorney representing the defendant when the action is finally determined at the trial level shall advise the court whether the appointment fee required by this section has been paid.

(d)       Inability, failure, or refusal to pay the appointment fee shall not be grounds for denying appointment of counsel, for withdrawal of counsel, or for contempt.

(e)       The appointment fee required by this section shall be assessed only once for each affidavit of indigency submitted by a defendant or other determination of indigency by the court, attorney appointment, regardless of the number of cases for to which an the attorney is appointed. was assigned. An additional appointment fee shall not be assessed for any additional cases thereafter assigned to an attorney if any cases for which a defendant was previously assessed an appointment fee are still pending. Nor shall an An additional appointment fee shall not be assessed if the charges for which an attorney was appointed are dismissed and subsequently refiled or if the defendant is appointed an attorney on appeal on a matter for which the defendant was assessed an appointment fee at the trial level.if the charges for which an attorney was appointed were reassigned to a different attorney.

(f)        Of each appointment fee collected under this section, the sum of forty-five dollars ($45.00) shall be credited to the Indigent Persons' Attorney Fee Fund and the sum of five dollars ($5.00) shall be credited to the Court Information Technology Fund under G.S. 7A-343.2. These fees shall not revert.

(g)       The Office of Indigent Defense Services shall adopt rules and develop forms to govern implementation of this section."

SECTION 4.  G.S. 15A-1343(e) reads as rewritten:

"(e)      Costs of Court and Appointed Counsel. - Unless the court finds there are extenuating circumstances, any person placed upon supervised or unsupervised probation under the terms set forth by the court shall, as a condition of probation, be required to pay all court costs and all fees and costs for appointed counsel or public defender counsel, public defender, or counsel employed by or under contract with the Office of Indigent Defense Services in the case in which he the person was convicted. The cost of fees and costs for appointed counsel or public defender counsel, public defender, or other counsel services shall be determined in accordance with rules adopted by the Office of Indigent Defense Services. The court shall determine the amount of those costs and fees to be repaid and the method of payment."

SECTION 5.  G.S. 35A-1245(c) reads as rewritten:

"(c)      A copy of the petition shall be served on the ward personally. If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent, the clerk shall appoint an attorney to represent the ward. ward in accordance with rules adopted by the Office of Indigent Defense Services."

SECTION 6.  This act is effective when it becomes law.

In the General Assembly read three times and ratified this the 28th day of July, 2005.

 

 

                                                        s/ Marc Basnight

                                                         President Pro Tempore of the Senate

 

 

                                                        s/ Richard T. Morgan

                                                         Speaker Pro Tempore of the House of Representatives

 

 

                                                        s/ Michael F. Easley

                                                         Governor

 

 

Approved 7:36 p.m. this 4th day of August, 2005