Section 977.07. Determination of indigency.

 

(1)  

(a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06 . No determination of indigency is required for a person who is entitled to be represented by counsel under s. 48.23 , 51.60 , 55.105 , or 938.23 .

(b) For referrals not made under ss. 809.30 , 974.06 , and 974.07 , a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3. , 1983 stats., for these determinations. Subject to the provisions of par. (bn) , those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

(bn) Notwithstanding par. (b) , if the state public defender board determines that standards under s. 977.02 (3) are not being met or that there is a pattern of improper denial of indigency findings in a county, the state public defender board shall transfer indigency determination authority in the county to the state public defender. In addition, if less than 100 percent of the cases at the trial level are assigned to private bar attorneys in a county, the public defender board may transfer indigency determination authority in the county to the state public defender.

(c) For all referrals made under ss. 809.107 , 809.30 , 974.06 (3) (b) and 974.07 (11) , except a referral of a person who is entitled to be represented by counsel under s. 48.23 , 51.60 , 55.105 , or 938.23 , a representative of the state public defender shall determine indigency. For referrals made under ss. 809.107 , 809.30 and 974.06 (3) (b) , except a referral of a person who is entitled to be represented by counsel under s. 48.23 , 51.60 , 55.105 , or 938.23 , the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the person's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

(d) If the representative of the state public defender or the county designee determines that a person is indigent or if no determination of indigency is required as provided in par. (a) , the case shall be referred to or within the office of the state public defender for assignment of counsel under s. 977.08 .

(2m)  If the person is found to be indigent in full or in part, the person shall be promptly informed of the state's right to payment or recoupment under s. 48.275 (2) , 757.66 , 938.275 (2) , 973.06 (1) (e) , or 977.076 (1) , and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent in part, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. This subsection does not apply to persons who have paid under s. 977.075 (3m) .

1977 c. 29 ; 1979 c. 175 s. 53 ; 1979 c. 356 ; 1981 c. 20 s. 1833 , 2202 (41) (a) ; Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 29 ; 1987 a. 27 , 61 , 399 ; 1991 a. 39 ; 1993 a. 16 , 451 , 491 ; 1995 a. 27 , 77 ; 2001 a. 16 ; 2005 a. 293 ; 2007 a. 20 , 97 ; 2009 a. 164 . Cross-reference: See also ch. PD 3 , Wis. adm. code. Judicial Council Note, 1984: Sub. (1) (c) is amended by dispensing with redeterminations of indigency unless the notice under s. 809.30 (2) (b) indicates that the defendant's financial circumstances have materially improved or the district attorney timely requests a redetermination under s. 809.30 (2) (d). The intent is to limit the cost and delay associated with indigency redeterminations to cases in which there is reason to believe that the defendant no longer qualifies for public defender assistance. [Re order effective July 1, 1985] The defendant must prove an inability to afford counsel by a preponderance of the evidence. State v. Buelow, 122 Wis. 2d 465 , 363 N.W.2d 255 (Ct. App. 1984). A determination of indigency by the public defender is not the end of a court inquiry of the right to counsel. State v. Dean, 163 Wis. 2d 503 , 471 N.W.2d 310 (Ct. App. 1991). In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App 90 , 242 Wis. 2d 782 , 625 N.W.2d 913 , 00-2138 . Under Dean , a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169 , 266 Wis. 2d 438 , 669 N.W.2d 182 , 02-1313 . The procedures set forth in Dean suggest that the inherent power of the circuit court shall be exercised to cover situations when a defendant cooperated with the SPD's financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy was in fact indigent. The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. A defendant in this position carries the burden of submitting proof to the circuit court to enable it to make such an assessment. State v. Kennedy, 2008 WI App 186 , 315 Wis. 2d 507 , 762 N.W.2d 412 , 08-0435 . The state public defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide by telephone that information necessary for the public defender to assess the need to make an indigency determination in person under s. 977.07 (1) for an inmate who has requested counsel and claims indigency. 78 Atty. Gen. 133 .