HB 379

To amend Section 15-12-21, 15-12-22, and 22-52-14 of the Code of Alabama 1975, relating to the payment of court appointed attorneys; to authorize the court to waive the maximum fee limit in certain cases; to remove the cap for appeals of capital murder convictions; and authorize the court to appoint an attorney to represent an incapacitated person prior to the filing of a petition; to amend Section 15-12-4, Code of 1975, relating to voluntary indigent defense advisory boards, to provide civil immunity for actions taken by the advisory board.

Section 1

Section 15-12-21 of the Code of Alabama 1975, is amended to read 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 rate of seventy dollars ($70) 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).

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

(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).

(5) In juvenile cases, the total fee shall not exceed two thousand five hundred dollars ($2,500). Notwithstanding the foregoing provisions of this subdivision, the maximum amount set forth above may be waived by the presiding judge or the director for good cause shown in juvenile dependency cases for guardians ad litem representing children. In the event the maximum fee is waived by the court, the judge shall enter a written order setting forth the factors he or she considered in making his or her determination that such a waiver was appropriate. In the event the maximum amount is waived by the director, the director shall forward to the Director of the Department of Finance a written memorandum setting forth the factors considered by the director in making his or her determination that such a waiver was appropriate.

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

(7) Notwithstanding the foregoing provisions, the maximum amount set forth above in subdivisions (2) and (3) may be waived by the trial court or the director for good cause shown when the case was adjudicated within five days of the date the case was scheduled to be tried before a jury. In the event the maximum amount is waived by the court, the court shall enter a written order setting forth the factors it considered in making its determination that such a waiver was appropriate. In the event the maximum amount is waived by the director, the director shall forward to the Director of the Department of Finance a written memorandum setting forth the factors considered by the director in making his or her determination that such a waiver was appropriate.

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."

Section 2

Section 15-12-22 of the Code of Alabama 1975, is amended to read as follows:

§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 selected for an indigent defendant for the appeal from a decision in any trial court proceeding, he or she 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 spent by the attorney in working on the prosecution of the appeal and shall be computed at the rate of seventy dollars ($70) per hour for time reasonably expended in the prosecution of 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), 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) 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). 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) Notwithstanding anything in this section to the contrary, there shall be no maximum amount of fees for services billed by an appointed attorney for the appeal of a capital murder conviction.

(3)(4)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 3

Section 22-52-14 of the Code of Alabama 1975, is amended to read as follows:

§22-52-14.

In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition, including any fees incurred for the preparation and filing of the petition, and any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed shall be set at the rates established by Section 15-12-21; and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge; and all other costs allowable by law shall be paid by the state general fund upon order of the probate judge; except, that if the petition is denied and the petitioner is not indigent and is not a law enforcement officer or other public official acting within the line and scope of his duties, all costs may be taxed against the petitioner, or if the petition is granted and the person sought to be committed is not indigent, the probate judge may order all costs paid from the estate of the person committed."

Section 4

This act shall become effective on October 1, 2018 following its passage and approval by the Governor, or its otherwise becoming law.