09 LC
29 3885S
The House Committee on Judiciary Non-civil offers the following substitute to SB
42:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 12 of Title 17 of the Official Code of Georgia Annotated, the
"Georgia Indigent Defense Act of 2003," so as to extensively revise said Act; to
reconstitute the Georgia Public Defender Standards Council with new membership;
to change the powers and duties of the council and provide that it shall be an
advisory body to the Georgia Public Defender Agency and the Office of
Alternative Defense Counsel; to provide for the Georgia Public Defender Agency
as an agency of the state; to provide for its director and the powers and duties
and operations of the agency and the director; to provide that the director
shall have the control and management of the agency and shall exercise
supervision with respect to circuit public defenders and carry out other duties
formerly vested in the council; to provide for procedures for the removal of a
circuit public defender from office; to change provisions relating to the
utilization of third-year law students; to provide for the Office of Alternative
Defense Counsel to manage cases in which a circuit or assistant public defender
or capital defender division has a conflict of interest; to provide for duties
and responsibilities of the office, annual accounting, and budgeting; to provide
for an executive director and powers and duties of the executive director; to
provide for other related matters; to amend Title 15 and Code Section 36-32-1 of
the Official Code of Georgia Annotated, relating to courts and municipal courts,
respectively, so as to conform cross-references; 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
12 of Title 17 of the Official Code of Georgia Annotated, the 'Georgia Indigent
Defense Act of 2003,' is amended by revising Code Sections 17-12-1 through
17-12-10.1, which Code sections relate to the Georgia Public Defender Standards
Council and its director and operations, as follows:
"17-12-1.
(a)
This chapter shall be known and may be cited as the 'Georgia Indigent Defense
Act of 2003.'
(b)
The Georgia Public Defender Standards Council shall be an
independent
agency
advisory
body within the executive branch of state
government.
(c)
The Georgia
Public Defender Agency shall be an independent agency within the executive
branch of state government.
(d)
The council,
agency, and office shall be responsible
for assuring that adequate and effective legal representation is provided,
independently of political considerations or private interests, to indigent
persons who are entitled to representation under this chapter.
17-12-2.
As
used in this chapter, the term:
(1)
'Agency' means the Georgia Public Defender Agency under the direction of the
director.
(1)(2)
'Assistant public defender' means an attorney who is employed by any circuit
public defender.
(2)(3)
'Circuit public defender' means the head of a public defender office providing
indigent defense representation within any given judicial circuit of this
state.
(3)(4)
'Circuit public defender office' means the office of any of the several circuit
public defenders.
(4)(5)
'Council' means the Georgia Public Defender Standards Council.
(5)(6)
'Director' means the director of the Georgia Public Defender
Agency
Standards
Council.
(7)
'Executive director' means the director of the Office of Alternative Defense
Counsel.
(6)(8)
'Indigent person' or 'indigent defendant' means:
(A)
A person charged with a misdemeanor, violation of probation, or a municipal or
county offense punishable by imprisonment who earns less than 100 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;
(B)
A juvenile charged with a delinquent act or a violation of probation punishable
by detention whose parents earn less than 125 percent of the federal poverty
guidelines unless there is evidence that the juvenile or his or her parents have
other resources that might reasonably be used to employ a lawyer without undue
hardship on the juvenile, his or her parents, or the parent's dependents;
and
(C)
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, his or her
dependents, or, in the case of a juvenile, his or her parents or the parent's
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.
(7)(9)
'Legislative oversight committee' means the Legislative Oversight Committee for
the Georgia Public Defender
Standards
Council
Agency and the
Office of Alternative Defense
Counsel.
(10)
'Office' means the Office of Alternative Defense Counsel.
(8)(11)
'Public defender' means an attorney who is employed in a circuit public defender
office or who represents an indigent person pursuant to this
chapter.
17-12-3.
(a)
There is created the Georgia Public Defender Standards Council to be composed of
15 members.
(b)
Effective July
1, 2009, the council shall be reconstituted as a new advisory body. The members
serving on the council immediately prior to July 1, 2009, shall cease to serve
on that date, but such prior members shall be eligible for reappointment to
succeed themselves or to fill another position on the
council. Ten members of the council shall
be appointed as follows:
(1)
Two members shall be appointed by the Governor,
four members
shall be appointed by the Lieutenant
Governor, and
four members shall be appointed by 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. Except as provided in paragraph
(3.1) 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 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 this 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
in
2009:
(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, one person
who resides in judicial administration district 7, and one person who resides in
judicial administration district 8;
and
(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, 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 7 and one person who resides in
judicial administration district 8, except that on and after July 1, 2008, the
Lieutenant Governor shall make such appointments; 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, except that on and after July 1, 2008, the
Speaker of the House of Representatives shall make such
appointments;
(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, one person
who resides in judicial administration district 9, and one person who resides in
judicial administration district 10;
and
(iii)
The Speaker of the House of Representatives shall appoint
one person who
resides in judicial administration district 1, one person who resides in
judicial administration district 2, 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, except that on and after July 1, 2008, the
Lieutenant Governor shall make such appointments; 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, except that on and after July 1, 2008, the
Speaker of the House of Representatives shall make such
appointments;
(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 1, one person who resides in
judicial administration district 2, one
person who resides in judicial administration district
7,
and one person who resides in judicial administration district 8;
and
(iii)
The Speaker of the House of Representatives shall appoint
one person who
resides in judicial administration district 3, one person who resides in
judicial administration district 4, 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, except that on and after July 1, 2008, the
Lieutenant Governor shall make such appointments; 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, except that on and after July 1, 2008, the
Speaker of the House of Representatives shall make such
appointments;
(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 3, one person who resides in
judicial administration district 4, 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, one person
who resides in judicial administration district 5, and one person who resides in
judicial administration district
6;
and
(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, except that on and after July 1, 2008, the
Lieutenant Governor shall make such appointments; 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, except that on and after July 1, 2008, the
Speaker of the House of Representatives shall make such appointments;
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, 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 3
and,
one person who resides in judicial administration district
4;,
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 5 and one person who resides in
judicial administration district 6, except that on and after July 1, 2008, the
Lieutenant Governor shall make such appointments; 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, except that on and after July 1, 2008, the
Speaker of the House of Representatives shall make such
appointments.
All
subsequent appointments shall continue on, with the entire cycle starting over
again as specified in subparagraph (A) of this paragraph;
(3)
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;
(3.1)
Four members of the council shall be county commissioners who have been elected
and are serving as members of a county governing authority in this state. The
county commissioner councilmembers shall be appointed by the Governor on or
before July 1,
2008
2009,
and shall be from different geographic regions of this state. The Governor may
solicit recommendations for such appointees from the Association County
Commissioners of Georgia. Each county commissioner councilmember shall serve
terms of four years; provided, however, that the initial appointments shall be
for one, two, three, and four years, respectively, as designated by the Governor
for each appointment, and thereafter, such members shall serve terms of four
years. A county commission councilmember shall be eligible to serve so long as
he or she retains the office by virtue of which he or she is serving on the
council;
(4)
Except as provided in paragraph (3.1) of this subsection, all initial
appointments shall be made to become members of the council on July 1,
2003
2009,
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), (2), and (3.1) of
this subsection shall be filled by the appointing authority, and such appointee
shall serve the balance of the vacating member's 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
(e) of Code Section 17-12-20.
(c)
In making the appointments for ten members of the council as provided in
paragraph (2) of subsection (b) of this Code section, 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 Attorneys' Council of the
State of Georgia, as well as from the public and other interested organizations
and individuals within this 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 attorney's office, or an employee of the Prosecuting
Attorneys' 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.
17-12-4.
(a)
The
council
agency:
(1)
Shall be a legal entity;
(2)
Shall have perpetual existence;
(3)
May contract;
(4)
May own property;
(5)
May accept funds, grants,
services,
and gifts from any public or private source, which shall be used to defray the
expenses incident to implementing its purposes;
(6)
May adopt and use an official seal;
(7)
May establish a principal office;
(8)
May hire such administrative and clerical personnel as may be necessary and
appropriate to fulfill its purposes; and
(9)
Shall have such other powers, privileges, and duties as may be reasonable and
necessary for the proper fulfillment of its purposes.
(b)
The council
shall establish auditing procedures as may be required in connection with the
handling of public funds. The state
auditor shall be authorized and directed to make an annual audit of the
transactions of the
council
agency
and to make a complete report of the same to the General Assembly. The annual
audit shall disclose all moneys received by the
council
agency
and all expenditures made by the
council
agency
by revenue source, including all programs and special projects itemized in the
General Appropriations Act. The annual audit shall include an itemization by
revenue source of encumbered and reserved money. Revenue sources shall include
each county governing authority's expenditures which are made pursuant to Code
Sections 17-12-31 and 17-12-32 and city or county expenditures which are made
pursuant to subsection (d) of Code Section 17-12-23. The state auditor shall
also make an audit of the affairs of the
council
agency
at any time when requested to do so by
a majority
of the council
the
director or by the Governor or General
Assembly.
(c)
The council may not provide compensation from its funds to any administrative or
clerical personnel employed by the council if the personnel are then receiving
retirement compensation from any retirement or pension fund created by Title 47
to provide compensation for past services as a judicial officer, prosecuting
attorney, indigent defense attorney, court officer, or law enforcement officer
except for county or municipal retirement funds.
17-12-5.
(a)
To be eligible for appointment as the director, a candidate shall be a member in
good standing of the State Bar of Georgia with at least seven years' experience
in the practice of law. The director shall be selected on the basis of training
and experience and such other qualifications as the
council
Governor
deems appropriate. The director shall be appointed by the Governor and shall
serve at the pleasure of the Governor.
(b)(1)
The director shall work with and provide support services and programs for
circuit public defender offices and other attorneys representing indigent
persons in criminal or juvenile cases in order to improve the quality and
effectiveness of legal representation of such persons and otherwise fulfill the
purposes of this chapter. Such services and programs shall include, but shall
not be limited to, technical, research, and administrative assistance;
educational and training programs for attorneys, investigators, and other staff;
assistance with the representation of indigent defendants with mental
disabilities; assistance with the representation of juveniles; assistance with
death penalty cases; and assistance with appellate advocacy.
(2)
The director may establish divisions within the
office
agency
to administer the services and programs as may be necessary to fulfill the
purposes of this chapter. The director shall establish a mental health advocacy
division and the Georgia capital defender division.
(3)
The director may hire and supervise such staff employees and may contract with
outside consultants on behalf of the
office
agency
as may be necessary to provide the services contemplated by this
chapter.
(c)
The director shall have and may exercise the following power and
authority:
(1)
With the
advice of the council, the
The
power and authority to take or cause to be taken any or all action necessary to
perform any indigent defense services or otherwise necessary to perform any
duties, responsibilities, or functions which the
council
agency
is authorized by law to perform or to exercise any power or authority which the
council
agency
is authorized by law to exercise;
and
(2)
With the
advice of the council, the
The
power and authority to make, promulgate, enforce, or otherwise require
compliance with any and all rules, regulations, procedures, or directives
necessary to perform any indigent defense services, to carry into effect the
minimum standards and procedures promulgated by the
council
agency,
or otherwise necessary to perform any duties, responsibilities, or functions
which the
council
agency
is authorized by law to
perform.
or to
exercise any power or authority which the council is authorized by law to
exercise; and
(3)
The power and authority to assist the council in the performance of its duties,
responsibilities, and functions and the exercise of its power and
authority.
(d)
The director shall:
(1)
With the
advice of the council, prepare
Prepare
and submit
to the
council a proposed
the
budget for the
council
agency.
The director shall also prepare and submit an annual report containing pertinent
data on the operations, costs, and needs of the
council
agency
and such other information as the
council
Governor
may require;
(2)
With the
advice of the council, develop
Develop
such rules, policies, procedures, regulations, and standards as may be necessary
to carry out the provisions of this chapter and comply with all applicable laws,
standards, and
regulations,
and submit these to the council for
approval;
(3)
Administer and coordinate the operations of the
agency
council and
supervise compliance with rules, policies, procedures, regulations, and
standards adopted by the
council;
(4)
Maintain proper records of all financial transactions related to the operation
of the
council
agency;
(5)
At the director's discretion, solicit and accept on behalf of the
council
agency
any funds,
services, training, or educational
opportunities that may become available
from any source, including government, nonprofit, or private grants, gifts, or
bequests;
(6)
Coordinate the services of the
council
agency
with any federal, county, or private programs established to provide assistance
to indigent persons in cases subject to this chapter and consult with
professional bodies concerning the implementation and improvement of programs
for providing indigent services;
(7)
Provide for the training of attorneys and other staff involved in the legal
representation of persons subject to this chapter;
(8)
Attend all council
meetings,
except those meetings or portions thereof that address the question of
appointment or removal of the
director;
(9)
Ensure that the expenditures of the
council
agency
are not greater than the amounts budgeted or available from other revenue
sources;
(10)
Hire, with
the pending approval of the council, a
mental health advocate who shall serve as director of the division of the office
of mental health advocacy;
(11)
Hire, with
the pending approval of the council, the
capital defender who shall serve as the director of the division of the office
of the Georgia capital defender;
(12)
Evaluate each circuit public defender's job performance
and
communicate his or her findings to the
council;
and
(13)
Establish
auditing procedures as may be required in connection with the handling of public
funds;
Perform
other duties as the council may assign.
(14)
Prepare annually a report of the agency's activities in order to provide the
General Assembly, the Governor, and the Supreme Court of Georgia with an
accurate description and accounting of the preceding year's expenditures and
revenue, including moneys received from cities and county governing authorities.
Such report shall include a three-year cost projection and anticipated revenues
for all programs defined in the General Appropriations Act;
(15)
Provide to the General Assembly, the Governor, and the Supreme Court of Georgia
a detailed analysis of all grants and funds, whether public or private, applied
for or granted, together with how and in what manner the same are to be utilized
and expended; and
(16)
Prepare and submit a budget estimate for the agency necessary for fulfilling the
purposes of this chapter to the director of the Office of Planning and Budget in
accordance with Code Section 45-12-78.
17-12-6.
(a)
The council shall assist the
public
defenders throughout the state
agency and the
office in their efforts to provide
adequate legal defense to
the
indigent
defendants.
Assistance
may
shall
include:
(1)
The preparation and distribution of a basic defense manual and other educational
materials;
(2)
The preparation and distribution of model forms and documents employed in
indigent defense;
(3)
The promotion of and assistance in the training of indigent defense
attorneys;
(4)
The provision of legal research assistance to public defenders; and
(5)
The provision of such other assistance to public defenders as may be authorized
by law.
(b)
The
council
agency:
(1)
Shall be the fiscal
officer,
through the director, for the circuit
public defender offices and shall account for all moneys received from each
governing authority;
and
(2)
Shall collect, maintain, review, and publish records and statistics for the
purpose of evaluating the delivery of indigent defense representation in
Georgia;
and
(3)
Shall not reimburse any attorney representing a defendant in a conflict of
interest case on behalf of the agency if such attorney fails to submit a request
for reimbursement more than 45 days after the month in which such acts
occurred.
17-12-7.
(a)
All members of the council shall at all times act in the best interest of
indigent defendants who are receiving legal representation under the provisions
of this
chapter;
provided, however, that unless pursuant to court order or subpoena, no member of
the council shall intentionally assist any party involved in a civil action
against the council, agency, or office in connection with providing indigent
defense services. Members of the council shall not file any civil action
against the state for any law related to providing indigent defense
services.
(b)
All members of the council shall be entitled to vote on any matter coming before
the council unless otherwise provided by law or by rules adopted by the council
concerning conflicts of interest.
(c)
Each member of the council shall serve
until a
successor has been appointed. Removal of council members shall be for cause and
shall be in accordance with policies and procedures adopted by the
council
at the
pleasure of the appointing
authority.
(d)
Unless otherwise provided in this article, a quorum shall be a majority of the
members of the council who are then in office, and decisions of the council
shall be by majority vote of the members
present,
except that a majority of the entire council must approve the appointment or
removal of the chairperson or removal of a circuit public defender for cause
pursuant to Code Section 17-12-20 and an alternative delivery system pursuant to
Code Section 17-12-36 and other matters as set forth in Code Section
17-12-36.
(e)
The council shall meet at least quarterly and at such other times and places as
it deems necessary or convenient for the performance of its duties.
(f)
The council shall elect a chairperson and such officers from the members of the
council as it deems necessary and shall adopt such rules for the transaction of
its business as it desires. The chairperson and officers shall serve for a term
of two years and may be removed without cause by a vote of two-thirds of the
members of the entire council and for cause by a majority vote of the entire
council. The chairperson shall retain a vote on all matters except those in
which the chairperson has a conflict of interest or the removal of the
chairperson for cause. The council shall keep and maintain minutes of all
council meetings.
(g)
The members of the council shall receive no compensation for their services but
shall be reimbursed for their actual expenses incurred in the performance of
their duties as members of the council. Any expenses incurred by the council
shall be paid from the general operating budget of the
council
agency.
17-12-8.
(a)
The council
shall serve in an advisory capacity only, and council approval shall not be
required for any action by the director, executive director, the agency, or the
office unless such approval is specifically required under this
chapter.
(b)
Subject to fiscal considerations as dictated by the director or executive
director, as appropriate, the
The
council shall approve the development and improvement of programs which provide
legal representation to indigent persons
and
juveniles.
(b)(c)
The council shall approve
and
implement programs, services, rules,
policies, procedures, regulations, and standards as may be necessary to fulfill
the purposes and provisions of this chapter and to comply with all applicable
laws governing the rights of indigent persons accused of violations of criminal
law or Chapter
11 of Title 15, subject to fiscal considerations as dictated by the director or
executive director.
(c)(d)
All rules, regulations, policies, and standards that are
promulgated
recommended
by the council
and adopted,
with or without changes, by the director or executive director, as
appropriate, shall be publicly available
for review and shall be posted on the
council's
agency's or
office's
website, as
applicable. Each rule, regulation,
policy, and standard shall identify the date upon which such rule, regulation,
policy, and standard took effect.
17-12-9.
The
council
agency
shall be authorized to conduct or approve for credit or reimbursement, or both,
basic and continuing legal education courses or other appropriate training
programs for the circuit public defenders or their staff members. The
council
agency,
in accordance with such rules as
it
the
director shall adopt, shall be authorized
to provide reimbursement, in whole or in part, for the actual expenses incurred
by
any
circuit public
defender
defenders
or their staff members in attending any approved course or training program from
funds as may be appropriated or otherwise made available to the
council
agency.
The circuit public defenders or their staff members shall be authorized to
receive reimbursement for actual expenses incurred in attending approved courses
or training programs. The
council
director
shall adopt rules governing the approval of courses and training programs for
credit or reimbursement as may be necessary to administer this Code section
properly.
17-12-10.
(a)
The council shall prepare annually a report of its activities in order to
provide the General Assembly, the Governor, and the Supreme Court of Georgia
with an accurate description and accounting of the preceding year's expenditures
and revenue, including moneys received from cities and county governing
authorities. Such report shall include a three-year cost projection and
anticipated revenues for all programs defined in the General Appropriations
Act.
(b)
The council shall provide to the General Assembly, the Governor, and the Supreme
Court of Georgia a detailed analysis of all grants and funds, whether public or
private, applied for or granted, together with how and in what manner the same
are to be utilized and expended.
(c)
The council,
director, and executive director shall
each
prepare annually a report in order to provide the General Assembly and the
Governor with information on
the
council's assessment
their
assessments of the delivery of indigent
defense services, including, but not limited to, the costs involved in operating
each program and each governing authority's indigent person verification system,
methodology used, costs expended, and savings realized.
17-12-10.1.
(a)
There is created the Legislative Oversight Committee for the Georgia Public
Defender
Standards
Council
Agency and
Office of Alternative Defense Counsel
which shall be composed of eight persons: three members of the House of
Representatives appointed by the Speaker of the House of Representatives, three
members of the Senate appointed by the Senate Committee on Assignments or such
person or entity as established by Senate rule, and one member of the House of
Representatives and one member of the Senate appointed by the Governor. The
members of such committee shall be selected within ten days after the convening
of the General Assembly in each odd-numbered year and shall serve until their
successors are appointed.
(b)
The Speaker of the House of Representatives shall appoint a member of such
committee to serve as chairperson, and the Senate Committee on Assignments or
such person or entity as established by Senate rule shall appoint one member of
the committee to serve as vice chairperson during each even-numbered year. The
Senate Committee on Assignments or such person or entity as established by
Senate rule shall appoint a member of such committee to serve as chairperson,
and the Speaker of the House of Representatives shall appoint one member to
serve as vice chairperson during each odd-numbered year. Such committee shall
meet at least three times each year and, upon the call of the chairperson, at
such additional times as deemed necessary by the chairperson.
(c)
It shall be the duty of such committee to review and evaluate:
(1)
Information on new programs submitted by the
council,
agency, or office;
(2)
Information on rules, regulations, policies, and standards proposed by the
council,
agency, or office;
(3)
The strategic plans for the
council
agency and
office;
(4)
Program evaluation reports and budget recommendations of the
council
agency and
office;
(5)
The fiscal impact of fees and fines on counties;
(6)
The reports submitted pursuant to Code Section 15-21A-7 in order to identify,
among other things, opportunities to reduce or consolidate fees, fines, and
surcharges; and
(7)
Such other information or reports as deemed necessary by such
committee.
(d)
The council
and,
director, and
executive director shall cooperate with
such committee and provide such information or reports as requested by the
committee for the performance of its functions.
(e)
The council shall submit its budget estimate to the director of the Office of
Planning and Budget in accordance with subsection (a) of Code Section
45-12-78.
(f)(e)
The legislative oversight committee shall make an annual report of its
activities and findings to the membership of the General Assembly and the
Governor within one week of the convening of each regular session of the General
Assembly. The chairperson of such committee shall deliver written executive
summaries of such report to the members of the General Assembly prior to the
adoption of the General Appropriations Act each year.
(g)(f)
The members of such committee shall receive the allowances authorized for
legislative members of legislative committees. The funds necessary to pay such
allowances shall come from funds appropriated to the House of Representatives
and the Senate.
(h)(g)
The legislative oversight committee shall be authorized to request that a
performance audit of the
council
agency or
office be conducted."
SECTION
2.
Said
chapter is further amended by revising subsection (a) of Code Section 17-12-11,
relating to mental health advocacy division, duties, responsibilities, and
management, as follows:
"(a)
The mental health advocacy division shall represent in any court in this state
indigent persons found not guilty by reason of insanity at the time of the crime
or found mentally incompetent to stand trial and shall be the successor to the
office of mental health advocacy created by Article 4 of this chapter as it
existed on June 30, 2008. Any assets or resources of the office of mental
health advocacy shall be transferred to the
council
agency.
The mental health advocacy division office shall serve all counties of this
state."
SECTION
3.
Said
chapter is further amended by revising subsection (a) of Code Section 17-12-12,
relating to Georgia capital defender division and duties, responsibilities, and
management, as follows:
"(a)
The Georgia capital defender division shall represent all indigent persons
charged with a capital felony for which the death penalty is being sought in any
court in this state and shall be the successor to the Office of the Georgia
Capital Defender created by Article 6 of this chapter as it existed on June 30,
2008. Any assets or resources of the Office of the Georgia Capital Defender
shall be transferred to the
council
agency.
The Georgia capital defender division shall serve all counties of this
state."
SECTION
4.
Said
chapter is further amended by repealing Code Sections 17-12-12.1 and 17-12-13,
relating to the capital defender division and effective date, respectively,
which read as follows:
"17-12-12.1.
(a)
If there is a conflict of interest such that the Georgia capital defender
division is unable to defend any indigent person accused of a capital felony for
which the death penalty is being sought, the director shall determine and
appoint counsel to represent the defendant. The director shall establish the
contractual agreement with the defendant's counsel for payment of representing
the defendant, and, when feasible and prudent, a flat fee structure shall be
utilized.
(b)
A maximum of two attorneys shall be paid by the council pursuant to a
contractual agreement or at an hourly rate established by the council with state
funds appropriated to the council. State funds shall be appropriated to the
council for use by the Georgia capital defender division for the first
$150,000.00 paid for each death penalty case. Funding for attorney's fees and
expenses between $150,000.01 and $250,000.00 for each death penalty case shall
be paid through state appropriations for 75 percent of such attorney's fees and
expenses, and the county governing authority where the indictment was returned
shall pay 25 percent of such attorney's fees and expenses. Funding for all
attorney's fees and expenses in excess of $250,000.00 for each death penalty
case shall be paid through state appropriations for 50 percent of such
attorney's fees and expenses, and the county governing authority where the
indictment was returned shall pay 50 percent of such attorney's fees and
expenses.
(c)
The council, with the assistance of the Georgia capital defender division, shall
establish guidelines for all expense requests for cases in which the death
penalty is sought, including, but not limited to, attorney's fees, expert
witness fees, investigative fees, travel and accommodation expenses, and copy
and transcription costs.
(d)
A county governing authority may provide supplemental compensation to counsel
appointed pursuant to this Code section.
17-12-13.
This
article shall become effective on December 31, 2003, except as specified in Code
Section 17-12-3."
SECTION
5.
Said
chapter is further amended by revising Code Section 17-12-20, relating to
selection and removal of circuit public defenders, as follows:
"17-12-20.
(a)
On and after July 1, 2008, there is created in each judicial circuit in this
state a circuit public defender supervisory panel to be composed of seven
members. The Lieutenant Governor, the Speaker of the House of Representatives,
and the chief judge of the superior court of the circuit shall each appoint one
member. The Governor shall appoint four members, two of which shall be members
of the governing authority of the counties within the judicial circuit for which
such member is appointed to serve. A member of a governing authority shall be
eligible to serve so long as he or she retains the office by virtue of which he
or she is serving on the panel. Other than the county commissioner, members of
the circuit public defender supervisory panel 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. A prosecuting attorney as defined in
paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney's
office, or an employee of the Prosecuting Attorneys' Council of the State of
Georgia shall not serve as a member of the circuit public defender supervisory
panel after July 1, 2005. On and after July 1, 2008, no employees of the
council
agency
shall serve as a member of the circuit public defender supervisory panel.
Members of the circuit public defender supervisory panel shall reside in the
judicial circuit in which they serve. The circuit public defender supervisory
panel members shall serve for a term of five years. Any vacancy for an
appointed member shall be filled by the appointing authority.
(b)(1)
By majority vote of its membership, the circuit public defender supervisory
panel shall annually elect a chairperson and secretary and determine a quorum
for the transaction of business. The chairperson shall conduct the meetings and
deliberations of the panel and direct all activities. The secretary shall keep
accurate records of all the meetings and deliberations and perform such other
duties as the chairperson may direct. The panel may be called into session upon
the direction of the chairperson or by the
council
director.
(2)
By majority vote of its membership, the circuit public defender supervisory
panel shall appoint the circuit public defender in the circuit as provided in
this article. The first such appointments shall be made to take office on
January 1, 2005, for terms of up to four years. The initial appointments shall
be for a term of up to four years. A circuit public defender may be appointed
for successive terms but shall not be reappointed if he or she was removed
pursuant to subsection (c) of this Code section.
(c)
A circuit public defender may be removed for cause
by a
majority vote of the council and may be removed without cause by a vote of
two-thirds of the members of the entire
council
as provided in
Code Section 17-12-20.1.
(d)
A circuit public defender supervisory panel may convene at any time during its
circuit public defender's term of office and shall convene at least semiannually
for purposes of reviewing the circuit public defender's job performance and the
performance of the circuit public defender office. The council and circuit
public defender shall be notified at least two weeks in advance of the convening
of the circuit public defender supervisory panel. The circuit public defender
shall be given the opportunity to appear before the circuit public defender
supervisory panel and present evidence and testimony. The chairperson shall
determine the agenda for the semiannual review process, but, at a minimum, such
review shall include information collected pursuant to subsection (c) of Code
Section 17-12-24, usage of state and local funding, expenditures, and budgeting
matters. The chairperson shall make an annual report on or before
the
thirtieth day of September
30
of each year concerning the circuit public defender supervisory panel's findings
regarding the job performance of the circuit public defender and his or her
office to the
council
director
on a form provided to the panel by the
council
director.
If at any time the circuit public defender supervisory panel finds that the
circuit public defender is performing in a less than satisfactory manner or
finds information of specific misconduct, the circuit public defender
supervisory panel may by majority vote of its members adopt a resolution seeking
review of
their
its
findings and remonstrative action by the
council
director.
Such resolution shall specify the reason for such request. All evidence
presented and the findings of the circuit public defender supervisory panel
shall be forwarded to the
council
director
within 15 days of the adoption of the resolution.
The council
shall initiate action on the circuit public defender supervisory panel's
resolution at its next regularly scheduled meeting and take final action within
60 days thereafter. The council shall notify the circuit public defender
supervisory panel, in writing, of any actions taken pursuant to submission of a
resolution under this subsection.
(e)
If a vacancy occurs for the position of circuit public defender, the chief judge
of the superior court of the circuit shall appoint an interim circuit public
defender to serve until the circuit public defender supervisory panel has
appointed a replacement. The circuit public defender supervisory panel shall
appoint a replacement circuit public defender within three months of the
occurring of the vacancy. The replacement circuit public defender shall not be
any individual who has been removed
by the
council pursuant to subsection (c) of this
Code section."
SECTION
6.
Said
chapter is further amended by adding a new Code section to read as
follows:
"17-12-20.1.
(a)
Whenever the director determines that an investigation of a circuit public
defender should be made as a result of a finding by the director that the
circuit public defender is performing in a less than satisfactory manner or
finds information of specific misconduct, the director shall notify the Governor
and the circuit public defender. The circuit public defender may agree to a
voluntary suspension or may resign. Within 30 days of such notice, the Governor
shall appoint two circuit public defenders and a member of the council who shall
constitute a committee to conduct an investigation of the circuit public
defender. The members of any such committee shall receive no compensation for
their services but shall be reimbursed for any expenses directly incurred in
connection with the investigation from funds available to the agency in the
discretion of the director. The committee shall make a report and
recommendation regarding the circuit public defender to the Governor within 30
days from the date of the appointment of the committee.
(b)
If the committee by majority vote recommends the suspension of the circuit
public defender, the Governor shall be authorized to suspend the circuit public
defender for a period of up to 90 days. The Governor may extend such period of
suspension once for an additional 30 days. If the committee by majority vote
recommends the removal of the circuit public defender, he or she may appeal to
the council for a final
determination."
SECTION
7.
Said
chapter is further amended by revising Code Section 17-12-22, relating to
provision of counsel in event of a conflict of interests, as
follows:
"17-12-22.
"17-12-22.
(a)
The council shall establish a procedure for providing legal representation in
cases where the circuit public defender office has a conflict of interest. Such
procedure may include, but shall not be limited to, the appointment of
individual counsel on a case-by-case basis or the utilization of another circuit
public defender office when feasible. It is the intent of the General Assembly
that the council consider the most efficient and effective system to provide
legal representation where the circuit public defender office has a conflict of
interest.
(b)
The circuit public defender shall establish a method for identifying conflicts
of interest at the earliest possible opportunity
in accordance
with rules and regulations established by the
agency. If there is a conflict of
interest such that the circuit public defender office cannot represent a
defendant
and an
attorney who is not employed by the circuit public defender office is appointed,
such attorney shall have a contractual relationship with the council to
represent indigent persons in conflict of interest cases, and such relationship
may include, but shall not be limited to, a flat fee
structure, the
Office of Alternative Defense Counsel shall provide legal representation as
provided for in Article 5 of this
chapter.
(c)
Attorneys who seek appointment in conflict cases shall have such experience or
training in the defense of criminal cases as is necessary in light of the
complexity of the case to which he or she is appointed and shall meet such
qualifications, regulations, and standards for the representation of indigent
defendants as are established by the
council."
SECTION
8.
Said
chapter is further amended by revising subsection (d) of Code Section 17-12-23,
relating to representation by circuit public defenders, as follows:
"(d)
A city or county may contract with the circuit public defender office
or the Office
of Alternative Defense Counsel for the
provision of criminal defense for indigent persons accused of violating city or
county ordinances or state laws. If a city or county does not contract with the
circuit public defender office, the city or county shall be subject to all
applicable rules, regulation, policies, and standards adopted by the
council
agency
for representation of indigent persons in this state."
SECTION
9.
Said
chapter is further amended by revising subsections (a) and (c) of Code Section
17-12-24, relating to operations of circuit public defenders, as
follows:
"(a)
The circuit public
defender,
or
any other person or entity providing indigent defense
services,
or
using
the system established pursuant to Code Section 17-12-80 shall determine if a
person or juvenile arrested, detained, or charged in any manner is an indigent
person entitled to representation under this chapter."
"(c)
The circuit public defender shall keep and maintain appropriate records, which
shall include the number of persons represented, including cases assigned to
alternative
defense counsel or other counsel based on
conflict of interest; the offenses charged; the outcome of each case; the
expenditures made in carrying out the duties imposed by this chapter; and any
other information requested by the
council
agency.
Failure to maintain accurate records may be grounds for suspension or removal
from office."
SECTION
10.
Said
chapter is further amended by revising Code Section 17-12-26, relating to budget
estimates, as follows:
"17-12-26.
The
council shall prepare and submit to the director of the Office of Planning and
Budget its budget estimate necessary for fulfilling the purposes of this chapter
in accordance with Code Section 45-12-78. The council shall be authorized to
seek, solicit, apply for, and utilize funds from any public or private source to
use in fulfilling the purposes of this
chapter.
Reserved."
SECTION
11.
Said
chapter is further amended by revising paragraph (2) of subsection (a) and
subsection (b) and by repealing subsection (h) of Code Section 17-12-27,
relating to public defender staff, as follows:
"(2)
Subject to funds being appropriated by the General Assembly or otherwise
available, additional assistant public defenders as may be authorized by the
council
director.
In authorizing additional assistant public defenders, the
council
director
shall consider the caseload, present staff, and resources available to each
circuit public defender and shall make authorizations as will contribute to the
efficiency of individual circuit public defenders and the effectiveness of
providing adequate legal defense for indigent defendants.
(b)
Each assistant public defender appointed pursuant to subsection (a) of this Code
section shall be classified based on education, training, and experience. The
jobs of assistant public defenders and the minimum qualifications required for
appointment or promotion to each job shall be established by the
council
agency
based on education, training, and experience and in accordance with the
provisions of Code Sections 17-12-30 and 17-12-34."
"(h)
Notwithstanding the provisions of subsection (g) of this Code section, an
employee of a local public defender office who was an employee of the office on
June 30, 2004, and who becomes a circuit public defender or an employee of a
circuit public defender office before July 1, 2005, may elect, with the consent
of the former employer and the consent of the council, to remain an employee of
the entity for which the employee worked as a local public defender; and such
entity shall be his or her employer for all purposes, including, without
limitation, compensation and employee benefits. The right to make an election
pursuant to this subsection shall expire on July 1, 2005. The council shall
reimburse the appropriate entity for compensation, benefits, and employer
contributions under the federal Social Security Act, but the total payment from
the council to the entity on behalf of the employee shall not exceed the amount
otherwise payable to or for the employee under the circumstance where the
employee had become a state employee."
SECTION
12.
Said
chapter is further amended by revising subsection (a) of Code Section 17-12-28,
relating to circuit public defender investigators, as follows:
"(a)
Subject to the provisions of this Code section, the circuit public defender in
each judicial circuit is authorized to appoint one investigator to assist the
circuit public defender in the performance of his or her official duties in the
preparation of cases for trial. Subject to funds being appropriated by the
General Assembly or otherwise available, the circuit public defender in each
judicial circuit may appoint additional investigators as may be authorized by
the
council
director.
In authorizing additional investigators, the
council
director
shall consider the caseload, present staff, and resources available to each
circuit public defender and shall make authorizations as will contribute to the
efficiency of individual circuit public defenders and the effectiveness of
circuit public defenders throughout the state in providing adequate legal
defense for indigent defendants."
SECTION
13.
Said
chapter is further amended by revising subsection (a) of Code Section 17-12-29,
relating to circuit public defender personnel, as follows:
"(a)
Each circuit public defender is authorized to employ administrative, clerical,
and paraprofessional personnel as may be authorized by the
council
director
based on funds appropriated by the General Assembly or otherwise available;
provided, however, that each circuit public defender shall be authorized not
less than two such personnel. In authorizing administrative, clerical, and
paraprofessional personnel, the
council
director
shall consider the caseload, present staff, and resources available to each
circuit public defender and shall make authorizations as will contribute to the
efficiency of individual circuit public defenders in providing effective
criminal defense for indigent defendants."
SECTION
14.
Said
chapter is further amended by revising paragraphs (1) through (5) of subsection
(c) of Code Section 17-12-30, relating to classification and compensation of
public defender staff, as follows:
"(c)(1)
The
council
director
shall establish salary ranges for each state paid position authorized by this
article or
any other provision of law. Salary ranges
shall be similar to the state-wide and senior executive ranges adopted by the
State Merit System of Personnel Administration and shall provide for minimum,
midpoint, and maximum salaries not to exceed the maximum allowable salary. In
establishing the salary ranges, all amounts will be rounded off to the nearest
whole dollar. The
council
director
may, from time to time, revise the salary ranges to include across-the-board
increases which the General Assembly may from time to time authorize in the
General Appropriations Act.
(2)
The circuit public defender shall fix the compensation of each state paid
employee appointed pursuant to this article in accordance with the job to which
the person is appointed and the appropriate salary range.
(3)
All salary advancements shall be based on quality of work, training, and
performance. The salary of state paid personnel appointed pursuant to this
article may be increased at the first of the calendar month following the annual
anniversary of the person's appointment. No employee's salary shall be advanced
beyond the maximum established in the applicable pay range.
(4)
Any reduction in salary shall be made in accordance with the salary range for
the position and the policies, rules, or regulations adopted by the
council
director.
(5)
The compensation of state paid personnel appointed pursuant to this article
shall be paid in equal installments by the
council
agency
as provided by this subsection from funds appropriated for such purpose. The
council
director
may authorize employees compensated pursuant to this Code section to participate
in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title
45."
SECTION
15.
Said
chapter is further amended by revising Code Section 17-12-32, relating to local
government contracts for personnel, as follows:
"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
office
may contract with the
council
agency
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
council
agency
such funds as may be necessary to cover the compensation, benefits, travel, and
other expenses for such personnel."
SECTION
16.
Said
chapter is further amended by revising Code Section 17-12-36, relating to
alternative service delivery systems, and Code Section 17-12-37, relating to
effective date, as follows:
"17-12-36.
(a)
The council
may permit a
A
judicial circuit composed of a single county
to
may
continue in effect an alternative delivery system
to the one
set forth in this article if:
if approved to
do so under the law in effect prior to July 1, 2009.
(1)
The delivery system:
(A)
Has a full-time director and staff and had been fully operational for at least
two years on July 1, 2003; or
(B)
Is administered by the county administrative office of the courts or the office
of the court administrator of the superior court and had been fully operational
for at least two years on July 1, 2003;
(2)
The council, by majority vote of the entire council, determines that the
delivery system meets or exceeds its rules, regulations, policies, and
standards, including, without limitation, caseload standards, as the council
adopts;
(3)
The governing authority of the county comprising the judicial circuit enacts a
resolution expressing its desire to continue its delivery system and transmits a
copy of such resolution to the council not later than September 30, 2004;
and
(4)
The governing authority of the county comprising the judicial circuit enacts a
resolution agreeing to fully fund its delivery system.
(b)
A judicial circuit composed of a single county may request an alternative
delivery system only one time; provided, however, that if such judicial
circuit's request for an alternative delivery system was disapproved on or
before December 31, 2004, such judicial circuit may make one further request on
or before September 1, 2005. The council shall allow such judicial circuit to
have a hearing on such judicial circuit's request.
(c)
The council shall make a determination with regard to continuation of an
alternative delivery system not later than December 1, 2005, and if the council
determines that such judicial circuit's alternative delivery system does not
meet the standards as established by the council, the council shall notify such
judicial circuit of its deficiencies in writing and shall allow such judicial
circuit an opportunity to cure such deficiencies. The council shall make a
final determination with regard to continuation of an alternative delivery
system on or before December 31, 2005. Initial and subsequent approvals of
alternative delivery systems shall be by a majority vote of the entire
council.
(d)
Any circuit whose alternative delivery system is disapproved at any time shall
be governed by the provisions of this article other than this Code
section.
(e)(b)
In the event an alternative delivery system is
approved,
the council
in operation,
the director shall annually review the
operation of such system and determine whether such system is meeting the
standards as established by the
council
director
and is eligible to continue operating as an approved alternative delivery
system. In the event the
council
director
determines that such system is not meeting the standards as established by the
council
director,
the
council
director
shall provide written notice to such system of the deficiencies and shall
provide such system an opportunity to cure such deficiencies.
(f)(c)
In the event an alternative delivery system is
approved
in
operation, it shall keep and maintain
appropriate
records,
which shall include the number of persons represented; the offenses charged; the
outcome of each case; the expenditures made in providing services; and any other
information requested by the
council
director.
(g)(d)
In the event the
council
director
disapproves an alternative delivery system
either in
its initial application or
on
annual review, such system may appeal such decision to the Supreme Court of
Georgia under such rules and procedures as shall be prescribed by the Supreme
Court.
(h)(e)
An approved alternative delivery system shall be paid by the
council
agency,
from funds available to the
council
agency,
in an amount equal to the amount that would have been allocated to the judicial
circuit for the minimum salary of the circuit public defender, the assistant
circuit public defenders, the investigator, and the administrative staff,
exclusive of benefits, if the judicial circuit was not operating an alternative
delivery system.
17-12-37.
This
article shall become effective on January 1, 2005; provided, however, that the
council and the circuit public defender selection panels shall be authorized to
take administrative actions as may be necessary or appropriate to prepare for
and phase-in full implementation of this article on or after December 31,
2003."
SECTION
17.
Said
chapter is further amended by revising Code Sections 17-12-41 through 17-12-45,
which Code sections relate to assistance by third-year law students or staff
instructors and the effective date of this article, as follows:
"17-12-41.
An
authorized third-year law student or staff instructor, when under the
supervision of a circuit public defender
or attorney
employed by the office, may assist in
criminal proceedings within this state as if admitted and licensed to practice
law in this state except that all pleadings and other entries of record
must
shall
be signed by a circuit public defender or
by his or
her duly appointed assistant
attorney
employed by the office and that, in the
conduct of a trial or other criminal proceeding, a circuit public defender or
his or her
duly appointed assistant must
attorney
employed by the office shall be physically
present.
17-12-42.
A
third-year law student or staff instructor may be authorized to assist a circuit
public defender
or attorney
employed by the office in such form and
manner as the judge of the court may prescribe, taking care that the
requirements of this article and the good moral character of the third-year law
student or staff instructor are properly certified by the dean of the law
school.
17-12-43.
As
to each third-year law student or staff instructor authorized to assist a
circuit public defender
or attorney
employed by the office, there shall be
kept on file
in the
office of the
with
the clerk of the court in the county where
such authority is to be exercised the dean's certificate, the student's and
instructor's oaths, and the judge's order as contemplated under Code Section
17-12-42. The authority to assist a circuit public defender
or attorney
employed by the office as allowed under
this Code section shall extend for no longer than 18 months. If during this
period any change occurs in the status of the student or instructor at the law
school in which he or she was enrolled or employed, that is, if the student
ceases his or her enrollment, is suspended, or is expelled or if the instructor
ceases his or her employment or is released by the school, any such authority
shall terminate and be revoked.
17-12-44.
Any
third-year law student or staff instructor authorized to assist a circuit public
defender or
attorney employed by the office under this
article
is
shall
not
be
required to possess the qualifications for appointment to the office of circuit
public defender or appointment as an assistant circuit public defender as
provided in
Article 1
of this chapter.
17-12-45.
This
article shall become effective on January 1,
2005."
SECTION
18.
Said
chapter is further amended by revising paragraph (1) of Code Section 17-12-50,
relating to definitions for recovery of attorney's fees and costs, as
follows:
"(1)
'Paid in part' means payment by a county or municipality for a part of the cost
of the provision of indigent defense services pursuant to a contract with a
circuit public defender office
or the Office
of Alternative Defense Counsel as set
forth in subsection (d) of Code Section 17-12-23. The term shall not include
payment by a county or municipality for office space and other supplies as set
forth in Code Section 17-12-34."
SECTION
19.
Said
chapter is further amended by revising subsection (c) of Code Section 17-12-51,
relating to repayment of attorney's fees as a condition of probation, as
follows:
"(c)
If a defendant who is represented by a public defender, who is paid for entirely
by the state, enters a plea of nolo contendere, first offender, or guilty or is
otherwise convicted, the court may impose as a condition of probation repayment
of all or a portion of the cost for providing legal representation and other
costs of the defense if the payment does not impose a financial hardship upon
such defendant or such defendant's dependent or dependents. Such defendant shall
make such payment through the probation department to the Georgia Public
Defender
Standards
Council
Agency or the
Office of Alternative Defense Counsel, as
applicable, for payment to the general
fund of the state treasury."
SECTION
20.
Said
chapter is further amended by revising Code Section 17-12-80, relating to
determination of indigency, as follows:
"17-12-80.
(a)
In order to retain funding as provided in Code Sections 15-21-74 and 15-21A-6, a
governing authority shall verify that the applicant qualifies as an indigent
person. The governing authority shall establish the methodology for
verification and fund such process. The governing authority shall produce
auditable information to the
council
agency
to substantiate its verification process as requested by the
council or
its director.
(b)
The
council
director
shall establish rules and regulations to determine approval of an indigent
person verification system and shall annually provide written notification to
the Georgia Superior Court Clerks' Cooperative Authority as to whether or not a
governing authority has an approved indigent person verification
system.
(c)
The governing authority shall advise the circuit public defender, if applicable,
or the administrator of the indigent defense system for the jurisdiction of the
name of each person who has applied for legal services and provide identifying
information for those persons who are financially eligible for services within
one business day of such person's application for services."
SECTION
21.
Said
chapter is further amended by adding a new Article 5 to read as
follows:
"ARTICLE
5
17-12-100.
(a)
The Office of Alternative Defense Counsel is hereby created and shall be an
independent agency within the executive branch of state government.
(b)
The office shall be responsible for assuring that adequate and effective legal
representation is provided, independently of political considerations or private
interests, to indigent persons who are entitled to representation under this
chapter in circumstances where the agency has a conflict of interest in
providing legal representation. For purposes of this article, a conflict of
interest may include, but need not be limited to, circumstances in which a
circuit public defender or assistant public defender represents a codefendant or
a person who is a witness in the case or other circumstances identified in the
Georgia rules of professional conduct as creating a conflict of interest. Case
overload, lack of resources, and other similar circumstances shall not
constitute a conflict of interest.
(c)
The Governor shall appoint a person to serve as executive director of the office
at the pleasure of the Governor. To be eligible for appointment as executive
director, a candidate shall be a member in good standing with the State Bar of
Georgia with at least five years of experience in the practice of law. The
executive director shall not engage in the private practice of law.
(d)
The executive director shall collect, maintain, review, and publish records and
statistics for the purpose of evaluating the delivery of indigent defense
representation in indigent defendant conflict of interest cases in
Georgia.
17-12-101.
(a)
On and after January 1, 2010, the office shall provide legal representation in
cases involving conflicts of interest for circuit public defender offices as
determined pursuant to policies, rules, or regulations of the
agency.
(b)
The office shall provide legal representation for indigent persons by either
contracting with licensed attorneys and investigators pursuant to Code Section
17-12-102 or by utilizing the office's own staff attorneys and
investigators.
17-12-102.
(a)(1)
On and after January 1, 2010, the office may contract, where feasible, without
prior approval of the court, for the provision of attorney services for conflict
of interest cases described in Code Section 17-12-101. Such contract may be by
the establishment of an alternative defense counsel division in those circuits
where the volume of cases may warrant a separate alternative defense counsel
division. To provide for adequate legal representation of indigent persons, the
office may contract, where feasible, without prior approval of the court, for
the provision of investigative services for conflict of interest cases described
in Code Section 17-12-101.
(2)
The office shall establish, where feasible, a list of approved contract
attorneys to serve as counsel and a list of approved investigators to provide
investigative services in such cases.
(3)
As a condition of placement on the approved list, the contracting attorney or
investigator shall agree to provide services based on the terms to be
established in a contract at either a fixed fee or the hourly rate for
reimbursement set by the executive director. Terms of the contract shall be
negotiated between the executive director and the contract attorney or
investigator. Contracts made with an attorney shall specify that the services
shall be provided subject to the Georgia rules of professional
conduct.
(4)
Attorneys who seek to be a contracting attorney shall have such experience or
training in the defense of criminal cases as is necessary in light of the
complexity of the case to which he or she is appointed and shall meet such
qualifications, regulations, and standards for the representation of indigent
defendants as are established by the council.
(b)
Contracts made pursuant to this Code section shall provide for reasonable
compensation and reimbursement for expenses necessarily incurred, to be fixed
and paid from funds appropriated therefor. The office shall review the bills
submitted for reimbursement by any contract attorney or investigator and may
approve or deny the payment of such bills in whole or in part based on the terms
set forth in the contract negotiated between the executive director and the
contract attorney or investigator.
17-12-103.
(a)
The office:
(1)
Shall be a legal entity;
(2)
Shall have perpetual existence;
(3)
May contract;
(4)
May own property;
(5)
May accept funds, grants, and gifts from any public or private source, which
shall be used to defray the expenses incident to implementing its
purposes;
(6)
May adopt and use an official seal;
(7)
May establish a principal office;
(8)
May hire such administrative and clerical personnel as may be necessary and
appropriate to fulfill its purposes; and
(9)
Shall have such other powers, privileges, and duties as may be reasonable and
necessary for the proper fulfillment of its purposes.
(b)
The state auditor shall be authorized and directed to make an annual audit of
the transactions of the office and to make a complete report of the same to the
General Assembly. The annual audit shall disclose all moneys received by the
office and all expenditures made by the office by revenue source, including all
programs and special projects itemized in the General Appropriations Act. The
annual audit shall include an itemization by revenue source of encumbered and
reserved money. The state auditor shall also make an audit of the affairs of
the office at any time when requested to do so by the executive director or by
the Governor or General Assembly.
17-12-104.
(a)
If there is a conflict of interest such that the Georgia capital defender
division or the office is unable to defend any indigent person accused of a
capital felony for which the death penalty is being sought, the executive
director shall determine and appoint counsel to represent the defendant. The
executive director shall establish the contractual agreement with the
defendant's counsel for payment of representing the defendant, and, when
feasible and prudent, a flat fee structure shall be utilized.
(b)
A maximum of two attorneys shall be paid by the office pursuant to a contractual
agreement or at an hourly rate established by the executive director with state
funds appropriated to the office. State funds shall be appropriated to the
office for use by the Georgia capital defender division for the first
$150,000.00 paid for each death penalty case. Funding for attorney's fees and
expenses between $150,000.01 and $250,000.00 for each death penalty case shall
be paid through state appropriations for 75 percent of such attorney's fees and
expenses, and the county governing authority where the indictment was returned
shall pay 25 percent of such attorney's fees and expenses. Funding for all
attorney's fees and expenses in excess of $250,000.00 for each death penalty
case shall be paid through state appropriations for 50 percent of such
attorney's fees and expenses, and the county governing authority where the
indictment was returned shall pay 50 percent of such attorney's fees and
expenses.
(c)
The office, with the assistance of the Georgia capital defender division, shall
establish guidelines for all expense requests for cases in which the death
penalty is sought, including, but not limited to, attorney's fees, expert
witness fees, investigative fees, travel and accommodation expenses, and copy
and transcription costs.
(d)
A county governing authority may provide supplemental compensation to counsel
appointed pursuant to this Code section.
17-12-105.
(a)
When representing an indigent person, the attorney under contract with the
office shall:
(1)
Counsel and defend such person at every stage of the proceedings;
(2)
Prosecute any direct or interlocutory appeal before or after conviction that the
executive director and the contract attorney consider to be in the interest of
justice; and
(3)
Submit reimbursement requests within 45 days after the month the costs were
accrued. Failure to comply with this paragraph shall void the office's
obligation to reimburse such attorney for services rendered.
(b)
In no case shall the executive director or a contract attorney be required to
prosecute any appeal or other remedy unless the executive director and contract
attorney are satisfied that there is arguable merit to the
proceeding.
17-12-106.
(a)(1)
The executive director shall work with and provide support services and programs
for the office and other attorneys representing indigent persons in criminal or
juvenile cases in order to improve the quality and effectiveness of legal
representation of such persons and otherwise fulfill the purposes of this
article. Such services and programs shall include, but shall not be limited to,
technical, research, and administrative assistance; educational and training
programs for attorneys, investigators, and other staff; assistance with the
representation of indigent defendants with mental disabilities; assistance with
the representation of juveniles; assistance with death penalty cases; and
assistance with appellate advocacy.
(2)
The executive director may establish divisions within the office to administer
the services and programs as may be necessary to fulfill the purposes of this
article.
(3)
The executive director may hire and supervise such staff employees and may
contract with outside consultants on behalf of the office as may be necessary to
provide the services contemplated by this article.
(b)
The executive director shall have and may exercise the following powers and
authorities:
(1)
The power and authority to take or cause to be taken any or all action necessary
to perform any indigent defense services or otherwise necessary to perform any
duties, responsibilities, or functions which the office is authorized by law to
perform or to exercise any power or authority which the office is authorized by
law to exercise; and
(2)
With the advice of the council, the power and authority to make, promulgate,
enforce, or otherwise require compliance with any and all rules, regulations,
procedures, or directives necessary to perform any indigent defense services and
to carry into effect the minimum standards and procedures promulgated by the
office or otherwise necessary to perform any duties, responsibilities, or
functions which the office is authorized by law to perform.
(c)
The executive director shall:
(1)
With the advice of the council, prepare and submit the budget for the office.
The executive director shall also prepare and submit an annual report containing
pertinent data on the operations, costs, and needs of the office and such other
information as the Governor may require;
(2)
With the advice of the council, develop such rules, policies, procedures,
regulations, and standards as may be necessary to carry out the provisions of
this article and comply with all applicable laws, standards, and
regulations;
(3)
Administer and coordinate the operations of the office;
(4)
Maintain proper records of all financial transactions related to the operation
of the office;
(5)
At the executive director's discretion, solicit and accept on behalf of the
office any funds, services, training, or educational opportunities that may
become available from any source, including government, nonprofit, or private
grants, gifts, or bequests;
(6)
Coordinate the services of the office with any federal, county, or private
programs established to provide assistance to indigent persons in cases subject
to this chapter and consult with professional bodies concerning the
implementation and improvement of programs for providing indigent
services;
(7)
Provide for the training of attorneys and other staff involved in the legal
representation of persons subject to this chapter;
(8)
Attend all council meetings;
(9)
Ensure that the expenditures of the office are not greater than the amounts
budgeted or available from other revenue sources;
(10)
Establish auditing procedures as may be required in connection with the handling
of public funds;
(11)
Evaluate office staff's job performance;
(12)
Prepare annually a report of the office's activities in order to provide the
General Assembly, the Governor, and the Supreme Court of Georgia with an
accurate description and accounting of the preceding year's expenditures and
revenue, including moneys received from cities and county governing authorities.
Such report shall include a three-year cost projection and anticipated revenues
for all programs defined in the General Appropriations Act;
(13)
Provide to the General Assembly, the Governor, and the Supreme Court of Georgia
a detailed analysis of all grants and funds, whether public or private, applied
for or granted, together with how and in what manner the same are to be utilized
and expended; and
(14)
Prepare and submit the office's budget estimate necessary for fulfilling the
purposes of this article to the director of the Office of Planning and Budget in
accordance with Code Section 45-12-78.
17-12-107.
(a)
The office:
(1)
Shall be the fiscal officer, through the executive director, for the office and
shall account for all moneys received from each governing authority;
and
(2)
Shall collect, maintain, review, and publish records and statistics for the
purpose of evaluating the delivery of indigent defense representation in
conflict of interest cases in Georgia.
(b)
The office shall be authorized to conduct or approve for credit or
reimbursement, or both, basic and continuing legal education courses or other
appropriate training programs for its staff members. The office, in accordance
with such rules as the executive director shall adopt, shall be authorized to
provide reimbursement, in whole or in part, for the actual expenses incurred by
staff members in attending any approved course or training program from funds as
may be appropriated or otherwise made available to the office. The staff
members shall be authorized to receive reimbursement for actual expenses
incurred in attending approved courses or training programs. The executive
director shall adopt rules governing the approval of courses and training
programs for credit or reimbursement as may be necessary to administer this
subsection properly."
SECTION
22.
Title
15 of the Official Code of Georgia Annotated, relating to courts, is amended by
revising subsections (e) and (g) of Code Section 15-6-76.1, relating to election
by clerks as to investing or depositing funds, as follows:
"(e)
When funds have been paid into the registry of the court and the order of the
court relating to such funds does not state that such funds shall be placed in
an interest-bearing trust account for the benefit of one or more of the parties,
the clerk shall deposit such funds in an interest-bearing trust account, and the
financial institution in which such funds are deposited shall remit, after
service charges or fees are deducted, the interest generated by said funds
directly to the Georgia Superior Court Clerks' Cooperative Authority by the last
day of the month following the month in which such funds were received for
distribution to the Georgia Public Defender
Standards
Council
Agency
for allotment to the circuit public defender offices. With each remittance, the
financial institution shall send a statement showing the name of the court, the
rate of interest applied, the average monthly balance in the account against
which the interest rate is applied, the service charges or fees of the bank or
other depository, and the net remittance. This subsection shall include, but
not be limited to, cash supersedeas bonds for criminal appeal, other supersedeas
bonds, and bonds or funds paid into the court registry in actions involving
interpleader, condemnation, and requests for injunctive
relief."
"(g)
Any interest earned on funds subject to this Code section or Code Section
15-7-49, 15-9-18, or 15-10-240 while in the custody of the Georgia Superior
Court Clerks' Cooperative Authority shall be remitted to the Georgia Public
Defender
Standards
Council
Agency."
SECTION
23.
Said
title is further amended by revising Code Section 15-7-49, relating to
remittance of interest from interest-bearing trust accounts, as
follows:
"15-7-49.
When
funds are paid into the court registry, the clerk shall deposit such funds in
interest-bearing trust accounts, and the interest from those funds shall be
remitted to the Georgia Superior Court Clerks' Cooperative Authority in
accordance with the provisions of subsections (c) through (i) of Code Section
15-6-76.1 for distribution to the Georgia Public Defender
Standards
Council
Agency."
SECTION
24.
Said
title is further amended by revising Code Section 15-9-18, relating to
remittance of interest from cash bonds, as follows:
"15-9-18.
Whenever
the sheriff transfers cash bonds to the clerk of the court, pursuant to Code
Section 15-16-27, the clerk shall deposit such funds into interest-bearing trust
accounts, and the interest from those funds shall be remitted to the Georgia
Superior Court Clerks' Cooperative Authority in accordance with the provisions
of subsections (c) through (i) of Code Section 15-6-76.1 for distribution to the
Georgia Public Defender
Standards
Council
Agency."
SECTION
25.
Said
title is further amended by revising Code Section 15-10-240, relating to
remittance of interest from funds, as follows:
"15-10-240.
When
funds are paid into the court registry, the clerk shall deposit such funds in
interest-bearing trust accounts, and the interest from those funds shall be
remitted to the Georgia Superior Court Clerks' Cooperative Authority in
accordance with the provisions of subsections (c) through (i) of Code Section
15-6-76.1 for distribution to the Georgia Public Defender
Standards
Council
Agency."
SECTION
26.
Said
title is further amended by revising subsection (b) of Code Section 15-16-27,
relating to deposit by sheriff of cash bonds and reserves of professional
bondspersons in interest-bearing accounts, as follows:
"(b)
The financial institution in which the funds are deposited shall remit, after
service charges or fees are deducted, the interest generated by such funds
directly to the Georgia Superior Court Clerks' Cooperative Authority in
accordance with the provisions of subsections (c) through (i) of Code Section
15-6-76.1 for distribution to the Georgia Public Defender
Standards
Council
Agency and the
Office of Alternative Defense Counsel.
With each remittance, the financial institution shall send a statement showing
the name of the county, deposits and withdrawals from the account or accounts,
interest paid, service charges or fees of the bank or other depository, and the
net remittance."
SECTION
27.
Said
title is further amended by revising subsection (c) of Code Section 15-21A-7,
relating to "court" defined and reporting and accounts system, as
follows:
"(c)
The authority shall, on a quarterly basis, make a detailed report and accounting
of all fines and fees collected and remitted by any court and shall submit such
report and accounting to the
General
Legislative
Oversight Committee for the Georgia Public Defender
Standards
Council
Agency,
the Office of Planning and Budget, the Chief Justice of the Supreme Court of
Georgia, the House Budget Office, and the Senate Budget Office no later than 60
days after the last day of the preceding quarter."
SECTION
28.
Code
Section 36-32-1 of the Official Code of Georgia Annotated, relating to
establishment of municipal court, is amended by revising subsections (f) and (g)
as follows:
"(f)
Any municipal court operating within this state and having jurisdiction over the
violation of municipal ordinances and over such other matters as are by specific
or general law made subject to the jurisdiction of municipal courts shall not
impose any punishment of confinement, probation, or other loss of liberty, or
impose any fine, fee, or cost enforceable by confinement, probation, or other
loss of liberty, as authorized by general law or municipal or county ordinance,
unless the court provides to the accused the right to representation by a
lawyer, and provides to those accused who are indigent the right to counsel at
no cost to the accused. Such representation shall be subject to all applicable
standards adopted by the Georgia Public Defender
Standards
Council
Agency
for representation of indigent persons in this state.
(g)
Any municipal court operating within this state that has jurisdiction over the
violation of municipal or county ordinances or such other statutes as are by
specific or general law made subject to the jurisdiction of municipal courts,
and that holds committal hearings in regard to such alleged violations, must
provide to the accused the right to representation by a lawyer, and must provide
to those accused who are indigent the right to counsel at no cost to the
accused. Such representation shall be subject to all applicable standards
adopted by the Georgia Public Defender
Standards
Council
Agency
for representation of indigent persons in this state."
SECTION
29.
This
Act shall become effective July 1, 2009, except that for purposes of making the
appointments called for by this Act, it shall become effective upon its approval
by the Governor or upon its becoming law without such approval.
SECTION
30.
All
laws and parts of laws in conflict with this Act are repealed.