§15-12-5. Determination of indigency and provision of defense services.

(a) Judicial role in determining indigency. The trial judge shall determine, in accordance with the policies and procedures established by the Office of Indigent Defense Services, if a person in his or her court is an indigent defendant, any time appropriate or necessary. Upon appeal from the trial court to the state appellate court, the trial judge who presided over the proceedings on appeal shall determine if the appellant is an indigent defendant in accordance with the policies and procedures established by the Office of Indigent Defense Services. If an indigency determination is necessary in any proceeding initiated originally in a state appellate court , the presiding judge or chief justice of the appellate court shall determine if the appellant or petitioner is an indigent defendant.

(b) Criteria for determining indigency. In determining indigency, the judge shall recognize ability to pay as a variable depending on the nature, extent and liquidity of assets, the disposable net income of the defendant, the nature of the offense, the effort and skill required to gather pertinent information and the length and complexity of the proceedings. The director may by rules provide for additional documentation of indigency, including, but not limited to, tax returns, asset statements, or other similar documentation as necessary.

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

(d) Provision of defense services. The judge making a determination of indigency shall provide indigent defense services for the indigent defendant through an indigent defense system provided for the circuit; however, if no indigent defense system exists, then the judge may provide indigent defense services otherwise in accordance with Act 2011-678. To the extent possible, judges shall provide continuity in legal representation.

(Acts 1975, No. 1205, p. 2384, §9-102; Acts 1981, No. 81-717, p. 1204, §1; Act 2011-678, p. 1862, §6.)