DEFENSE OF INDIGENTS
Rules promulgated under the Defense of Indigents Act (Act No. 309) passed by the General Assembly and approved by the Governor on June 17, 1969, were adopted by this Court on January 1, 1970. By Order of this Court dated September 20, 1972, the Rules were amended and now read as follows:
(a) Every person arrested for the commission of a crime within the jurisdiction of the Court of General Sessions, every juvenile to be brought before any court on any charge for which he may be imprisoned, and every person charged with the violation of a probationary sentence shall be taken as soon as practicable before the Clerk of the Court of General Sessions in the county where the charges are preferred, or such other officer or officers as may be designated by the resident judge of the circuit, for the purpose of securing to the accused the right to counsel.
In cases involving criminal charges within the jurisdiction of magistrates' courts, municipal courts, or other courts with like jurisdiction, if a prison sentence is likely to be imposed following any conviction, the presiding judge of the court in which the matter is to be determined shall inform the accused as provided in Rule 2 when the case is called for disposition. The procedures concerning juveniles, as provided in Rule 1 and Rule 2 hereof, shall continue to be followed.
(b) The officer before whom the arrested person is taken shall:
(1) Inform the accused of the charges against him and of the nature of the charges.
(2) Advise the accused of his right to counsel and of his right to the appointment of counsel by the court, if the accused is financially unable to employ counsel.
(3) If the accused represents that he is financially unable to employ counsel, take his application for the appointment of counsel or for the services of the Public Defender where the latter is available in the county.
Upon examination of a completed Affidavit of Indigency (Form II), the officer designated to make a determination of indigency shall determine if the accused is indigent. If that officer is unable to make this determination, the final determination whether the accused is indigent shall be made by a judge of the court in which the matter is to be heard.
For purposes of this rule, a person is indigent if that person is financially unable to employ counsel. In making a determination whether a person is indigent, all factors concerning the person’s financial condition should be considered including income, debts, assets and family situation. A presumption that the person is indigent shall be created if the person’s net family income is less than or equal to the Poverty Guidelines established and revised annually by the United States Department of Health and Human Services and published in the Federal Register. Net income shall mean gross income minus deductions required by law.
(c) If application for counsel is approved for the accused, the Clerk of Court or other officer shall immediately notify the Office of Public Defender, if one exists in the county, and the Public Defender shall immediately thereafter enter upon the representation of the accused. If there is no Public Defender for the county, then the Clerk of Court or other officer shall immediately notify the court, or such person as the resident judge may designate, of the request for counsel and appointment of counsel shall be made immediately with prompt notification thereof to the accused and counsel so appointed.
The initial designation of the Public Defender of appointment of counsel to represent an accused shall be subject to review by the court if it subsequently appears that the accused is in fact financially able to employ counsel, has obtained counsel of his own, or for other good cause shown.
If counsel shall have been retained and partially paid for his services in either the trial or appeal stages, no reimbursement may be had from indigent funds. However, upon the completion of the trial stage, the defendant may be brought before the designated officer of the county for the purpose of a redetermination of indigency. Upon a finding of indigency, and upon the appointment of counsel, the fees and costs of representation may be had from indigent funds as prescribed in these rules.
(d) The appointment of private counsel pursuant to Section V of the Act shall be made or confirmed in a written order, showing the date and time of the appointment; which shall be filed with the Clerk of Court, with copies thereof provided to the accused and to the appointed counsel. Where representation is by a Public Defender, he shall file with the Clerk of Court a written certificate setting forth the date and time at which he undertook such representation, and shall keep and report the hours in court and hours out of court and extraordinary expenses incurred applicable to each case for which representation is made.
(e)(1) Trial counsel, whether retained, appointed, or Public Defender, shall continue representation of an accused until final judgment, including any proceeding on direct appeal, except as hereinafter provided.
(2) During the trial stage, trial counsel may be relieved only for good cause upon written petition to and by written order of the trial judge. In all cases where relief from representation is sought by trial counsel, a copy of the petition shall be served on the accused and the prosecuting attorney. The Public Defender also shall be served when relief is sought by retained or appointed counsel. If trial counsel is relieved for good cause, the trial court shall immediately appoint substitute counsel.
(3) After conviction of an accused who has been represented by appointed counsel or Public Defender, the Office of Appellate Defense shall represent the accused until final judgment. After serving and filing a Notice of Appeal for an accused who desires to appeal, appointed counsel and Public Defenders shall be automatically relieved as appellate counsel for the accused, without obtaining leave to withdraw as provided in Rule 264, SCACR. However, the Public Defender or appointed counsel shall assist in representing the accused in any manner necessary to properly perfect the appeal or as otherwise requested by the Office of Appellate Defense.
(4) When an accused who desires to appeal claims to be indigent at the conclusion of the trial, his retained counsel must first serve and file a Notice of Appeal as required by Rule 203, SCACR. The accused shall then request a determination of his indigency status from the Office of Appellate Defense. If the Office of Appellate Defense determines that the accused is not indigent, retained counsel shall continue representation of the accused during the appeal, unless granted leave to withdraw under Rule 264, SCACR.
If the Office of Appellate Defense determines that the accused is indigent, it will represent the accused until final judgment, including any proceeding on direct appeal, without retained trial counsel's obtaining leave to withdraw under Rule 264, SCACR. However, retained counsel shall assist in representing the accused in any manner necessary to properly establish the indigency of the accused and properly perfect the appeal, including but not limited to obtaining an affidavit of indigency from the accused, obtaining a Court Order declaring the accused's indigency from either the trial judge or the Chief Administrative Judge of the Circuit, and in any other manner requested by the Office of Appellate Defense.
(f) Where a Defender Corporation is established in a county and representation of a defendant is by an attorney other than the Public Defender, no claim for reimbursement of such appointed counsel shall be submitted to the State Treasurer, but he shall be paid out of other available funds.
(g) (1) The application for counsel fees and/or expenses under the terms of this Act shall be made on such forms as prescribed and furnished by the South Carolina Court Administration. Vouchers for fees or expenses should be submitted upon the completion of each stage of representation, trial and appeal stages, respectively. No voucher for fees or expenses except where specifically permitted by written order of the court shall be submitted prior to the completion of a state of representation.
After the completion of services in a state of representation, appointed counsel or public defenders must submit their voucher for fees and/or expenses within thirty (30) days after such completion to the Clerk of Court of the county in which the services were performed.
(2) Vouchers submitted for fees must show with specificity the hours of in-court and out-of-court time, with an explanation as to the nature of each entry.
Necessary expenses which must be approved by the trial judge by written order, prior to their being incurred, are fees of expert witnesses, costs of scientific tests or exhibits for trial demonstration, costs of psychiatric examinations, and extraordinary travel expenses. The cost of long distance telephone calls should be submitted on the voucher. No other expenses may be submitted for reimbursement from the fund. All claims for expense against the defense fund must be shown on the voucher and must be accompanied by an original or copy of the bills documenting such claim.
Appointed counsel or public defenders involved in representation of defendants against whom the death penalty is sought are subject to the provisions of these Rules of the Defense of Indigents Act except as contravened by the special provisions of Act 555 of 1978.
(3) The court reporter's fee for providing the transcript of the trial proceeding may be reimbursed only after direct submission, by the court reporter, of a letter of transmittal showing the case name and number, the nature of the proceeding, the reporter's name, address, and social security number, a copy of the written request for transcript, a copy of the order of appointment of the requesting party as counsel and a completed court reporter's bill (Form SCCA DI-4). The providing of transcripts and billing rates are to conform to the guidelines set out in Rule 508, SCACR, and are applicable to state court reporters as well as independent court reporters.
Only the cost of one original or one copy of any transcript per defendant, regardless of the number of counsel, may be reimbursed out of the defense fund.
(4) After April 15, 1978, no local reproduction or printing of a transcript or brief for the purpose of an appeal may be reimbursed out of the defense fund. For the purpose of appeal, the transcript and brief should be prepared for reproduction, and forwarded to the Clerk of the Supreme Court. Such papers should be accompanied by a letter of transmittal showing the attorney's name, a return address, a copy of the order of appointment of that attorney as counsel and a copy of the Notice of Appeal.
Upon approval of the papers as submitted, printing, filing and service as required by South Carolina Appellate Court Rules will be administratively accomplished, with a copy returned to the attorney submitting the papers. Any appeal papers not in compliance with South Carolina Appellate Court Rules may be returned for revision.
(5) In cases in which the death penalty is sought, one original of the trial proceeding should be prepared immediately by the court reporter and submitted to the Clerk of the Supreme Court for the purpose of the automatic review by the Supreme Court. Upon such provision to the Clerk, copies of the transcript will be provided to defendant's counsel and no original or copy of a transcript in a case in which the death penalty is sought, otherwise provided to appointed counsel or a public defender by a court reporter, may be paid for out of the defense fund.
(6) In any trial or appeal in which an indigent defendant intends to represent himself, no expenses related to his representation may be paid from the defense fund without his having first appeared before the court, or such designated officer, for the purpose of a determination of indigency and his having obtained a written order of the court finding that defendant competent to represent himself.
Where an indigent defendant represents himself, after first obtaining leave of court, expenses of representation at trial or appeal must be submitted to Court Administration in conformity with these Rules and the Defense of Indigents Act except that any vouchers or court reporter's bills submitted must be accompanied by written evidence of defendant's compliance with this Rule. In any trial or appeal wherein representation is by the defendant himself, no fees of counsel may be allowed.
In post-conviction relief matters, expenses related to representation and fees of appointed counsel may be paid where permitted and as prescribed in these Rules and the Defense of Indigents Act. No defendant representing himself in a post-conviction relief matter may receive fees for representation but may be reimbursed for expenses allowed by these rules and statutes.
(h) In any case in which more than one attorney is appointed to represent a defendant, the combined fees paid to such attorneys shall not exceed the maximum amounts as provided by statute relating to indigent representation.
In all cases of multiple appointed counsel for single defendants, no single defendant is entitled to have the cost of more than one original or one copy of any transcript paid for from the defense fund regardless of the number of counsel.
In cases involving several defendants represented by appointed counsel who are tried together and who intend to appeal jointly, arrangements should be made, where possible, to share the transcripts between defendants and attorneys.
In any case in which a defendant represented by appointed counsel and a defendant represented by retained counsel intend to appeal jointly, the procedures for the provision of transcripts and printing, and the payment of the costs thereof, shall be pursuant to these Rules and the Defense of Indigents Act. The Office of Court Administration shall thereafter apportion an estimated amount of that cost and shall be reimbursed by the defendant who had retained counsel.
(i) The forms in Appendix A of Part VI shall be furnished by the Clerk of the Supreme Court to the office of the Clerk of Court in each county for use in administering the provisions of the Act as implemented by these Rules.
Amended by Order dated January 29, 2009, effective April 29, 2009, by Order of the same date.