Section 15-12-5

Determination of indigency and provision of defense counsel generally.

(a) Judicial role in determining indigency. - The trial judge first having cognizance of a criminal or juvenile proceeding in his court shall determine if an accused person or petitioner for postconviction relief is an indigent defendant. Upon appeal from a trial court to the state appellate courts, the trial judge or the presiding circuit judge shall determine if the appellant is an indigent defendant. In any proceeding initiated originally in a state appellate court or in any case appealed to a state appellate court without a determination of indigency, the presiding judge or chief justice of the appellate court shall determine if the appellant or petitioner is an indigent defendant.

(b) Criteria for determining indigency. - In determining indigency, the judge shall recognize ability to pay as a variable depending on the nature, extent and liquidity of assets, the disposable net income of the defendant, the nature of the offense, the effort and skill required to gather pertinent information and the length and complexity of the proceedings.

(c) Investigation of indigency. - In determining the fact of indigency a judge may require an investigation and report by a district attorney, public defender, sheriff, probation officer or other officer of the court. Provided, further, that the trial court judge shall, in all cases requiring a determination of indigency, require the accused to execute an affidavit of substantial hardship on a form approved by the Supreme Court. The completed affidavit of substantial hardship and the subsequent order of the court either denying or granting court appointed counsel to the accused shall become a part of the official court record in the case.

(d) Provision of defense counsel. - The judge making a determination of indigency shall provide legal representation for the indigent defendant. To the extent possible, judges shall provide continuity in legal representation.

(Acts 1975, No. 1205, p. 2384, §9-102; Acts 1981, No. 81-717, p. 1204, §1.)