The Florida Senate

27.52  Determination of indigency.--

(1)(a)  The determination of indigency for purposes of appointing the public defender or conflict attorney shall be made by the court, and may be made at any stage of the proceedings. Before appointing the public defender or a conflict attorney, the court shall consider a completed affidavit that contains the financial information required under paragraph (f) and shall make a preliminary determination of indigency, pending verification by the indigency examiner.

(b)  An accused person, or if applicable a parent or legal guardian of an accused minor or an accused adult tax-dependent person, asserting indigency and requesting representation by the public defender or a conflict attorney, shall file with the court a completed affidavit containing the financial information required under paragraph (f) and stating that the affidavit is signed under oath and under penalty of perjury.

(c)  Each person who requests the appointment of the public defender or a conflict attorney shall pay to the clerk of the court an application fee of $40, as ordered by the court, at the time the financial affidavit is filed, or within 7 days thereafter. If not paid within 7 days, the application fee shall be assessed at sentencing or at the final disposition of the case. The application fee shall be assessed for each affidavit filed against a defendant who requests appointment of the public defender or a conflict attorney. A defendant who is found to be indigent may not be refused counsel for failure to pay the application fee.

(d)  If the court finds that the accused person applying for representation appears to be indigent based upon the financial affidavit required under paragraph (f), the court shall appoint the public defender or a conflict attorney to provide representation. If the application fee is not paid prior to the disposition of the case, the clerk shall advise the sentencing judge of this fact and the court shall:

1.  Assess the application fee as part of the sentence or as a condition of probation; or

2.  Assess the application fee pursuant to s. 938.29.

If the indigency examiner finds discrepancies between the financial affidavit and the examiner's investigation of assets, the indigency examiner shall submit the information to the court and the court shall determine whether the public defender or conflict attorney shall continue representation. The defendant may be heard regarding the information discovered by the indigency examiner. If the court, based on the information provided, determines that the defendant is not indigent, the court shall order that the public defender or conflict attorney discontinue representation. Notwithstanding any provision of law or local order to the contrary, the clerk of the court shall assign the first $40 of any court assessed fees or costs that are paid by an indigent defendant to the Indigent Criminal Defense Trust Fund as payment for the application fee. In no event should a person who is found to be indigent be refused counsel for failure to pay the fee.

(e)  All application fees shall be transferred monthly by the clerk of the court to the Indigent Criminal Defense Trust Fund, administered by the Justice Administrative Commission, to be used to supplement the general revenue funds appropriated by the Legislature to the public defenders. The clerk of the court may retain 2 percent of application fees collected monthly for administrative costs prior to remitting the remainder to the Justice Administrative Commission.

(f)  The affidavit must contain the following financial information and calculations as to the accused person's income:

1.  Net income.--Total salary and wages, minus deductions required by law, including court-ordered support payments.

2.  Other income.--Including, but not limited to, social security benefits, union funds, veterans' benefits, workers' compensation, other regular support from absent family members, public or private employee pensions, unemployment compensation, dividends, interest, rent, trusts, and gifts.

3.  Assets.--Including, but not limited to, cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a boat or a motor vehicle or in other tangible property.

(g)  The income of an accused minor or an accused adult tax-dependent person who is substantially supported by a parent or parents or by a guardian, or who continues to be claimed as a dependent for tax purposes, shall include the income of that dependent person's parent or parents or guardian, except a parent or guardian who has an adverse interest in the proceeding.

(h)  In addition to the financial information, the affidavit must contain the following statement:  "I,  (name of accused person) , agree to report any change in my financial situation to the court or to the indigency examiner."

(2)(a)  After reviewing the affidavit and questioning the accused person, the court shall make one of the following determinations:

1.  The accused person is indigent.

2.  The accused person is not indigent.

(b)  An accused person, or an accused minor's or accused adult tax-dependent person's parent or guardian, is indigent if:

1.  The income of the person is equal to or below 250 percent of the then-current federal poverty guidelines prescribed for the size of the household of the accused by the United States Department of Health and Human Services or if the person is receiving Aid to Families with Dependent Children (AFDC), poverty-related veterans' benefits, or Supplemental Security Income (SSI); or

2.  The person is unable to pay for the services of an attorney without substantial hardship to his or her family.

(c)  In determining whether a defendant is indigent, the court shall determine whether any of the following facts exist, and the existence of any such fact creates a presumption that the defendant is not indigent:

1.  The defendant has been released on bail in the amount of $5,000 or more.

2.  The defendant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property.

3.  The defendant retained private counsel immediately before or after filing the affidavit asserting indigency pursuant to subsection (1).

(d)  A nonindigent parent or legal guardian of an accused minor or an accused adult tax-dependent person shall furnish the minor or dependent person with the necessary legal services and costs incident to a delinquency proceeding or, upon transfer of such person for criminal prosecution as an adult pursuant to chapter 985, a criminal prosecution, in which the person has a right to legal counsel under the Constitution of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to furnish legal services and costs under this section does not bar the appointment of legal counsel pursuant to s. 27.53. When the public defender, a special assistant public defender appointed pursuant to s. 27.53(2), or appointed private legal counsel is appointed to represent an accused minor or an accused adult tax-dependent person in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian shall be liable for the fees and costs of such representation even if the person is a minor being tried as an adult. Liability for the costs of such representation may be imposed in the form of a lien against the property of the nonindigent parents or legal guardian of the accused minor or accused adult tax-dependent person, which lien is enforceable as provided in s. 27.561 or s. 938.29. The court shall determine the amount of the obligation; and, in determining the amount of the obligation, the court shall follow the procedure outlined by this section.

(3)  If the trial court determines, within 2 years after the determination of indigency, that any accused was erroneously or improperly determined to be indigent, the state attorney shall, in the name of the state, proceed against such accused for the reasonable value of the services rendered to the accused and including all costs paid by the state or county in his or her behalf. Any amount recovered shall be remitted to the board of county commissioners of the county wherein the accused was tried. The funds shall be deposited in the fine and forfeiture fund of that county and be used to defray the expenses incurred by the county with respect to the defense of defendants in criminal prosecutions.

History.--s. 3, ch. 63-409; s. 1, ch. 70-57; s. 4, ch. 73-334; s. 1, ch. 77-99; s. 1, ch. 77-378; s. 8, ch. 79-164; s. 3, ch. 80-376; s. 1, ch. 81-273; s. 139, ch. 95-147; s. 1, ch. 96-232; s. 4, ch. 97-107; s. 28, ch. 97-271; s. 6, ch. 98-280.