April 1, 2003
 
 
 
 Administrative Order No. 2003-03
 
 Appointment of Counsel for 
 Indigent Criminal Defendants
                                                     
 
      In cases in which the defendant may lack the financial means to retain counsel
 and the Supreme Court is granting leave to appeal, an inquiry into the defendant's
 financial status may be necessary.  Where the Court orders such an inquiry, it shall
 proceed in the manner outlined in this administrative order, effective immediately.
 
      The defendant must file, on a form developed by the State Court Administrative
 Office, an affidavit concerning present financial status.  The affidavit must be filed in
 the circuit court from which the case is being appealed.  The circuit court must provide
 the prosecuting attorney with a copy of the defendant's affidavit within 7 days.  The
 prosecuting attorney may challenge the defendant's asserted lack of financial means to
 retain counsel by filing an appropriate motion with the circuit court within 14 days after
 the prosecuting attorney receives the copy of the affidavit.  The circuit court may
 question the asserted lack of financial means on its own motion.  If such a motion is
 filed by the prosecuting attorney or if the issue is raised by the circuit court [sua
 sponte], the circuit court must conduct a hearing on the matter within 21 days after
 the motion is filed or the issue is raised.  The prosecuting attorney, the defendant, and
 an attorney appointed by the circuit court to represent the defendant must appear at the
 hearing.
 
      If such a motion is filed or if the issue is raised by the circuit court, the circuit
 court must determine whether the defendant lacks the financial means to retain counsel
 on the basis of (1) the defendant's present assets, employment, earning capacity, and
 living expenses; (2) the defendant's outstanding debts and liabilities, both secured and
 unsecured; (3) whether the defendant has qualified for, and is receiving, any form of
 public assistance; (4) the availability and convertibility, without undue financial
 hardship to the defendant or the defendant's family, of real or personal property owned
 by the defendant; (5) whether the defendant is incarcerated; and (6) any other
 circumstances that would affect the defendant's ability to pay the fee that ordinarily
 would be required to retain competent counsel.  If the defendant's lack of financial
 means appears to be temporary, the circuit court may order that the defendant repay, on
 appropriate terms, the expense of appointed counsel.
 
      If, after such a challenge or question, the circuit court determines that the
 defendant lacks the financial means to retain counsel, the circuit court must appoint
 counsel or continue the appointment of previously appointed counsel within 14 days
 after the hearing.  If there has not been such a challenge or question, the circuit court
 must appoint counsel or continue the appointment of previously appointed counsel
 within 28 days after the defendant files an affidavit concerning present financial status. 
 The circuit court must promptly forward to the Clerk of the Supreme Court a copy of
 the appointment order and must promptly provide counsel with any portion of the
 record that counsel requires.
 
      If the defendant does not file an affidavit concerning present financial status or if
 the circuit court determines that the defendant does not lack the financial means to
 retain counsel, the circuit court must promptly notify the Clerk of this Court.
 
      Administrative Order No. 1972-4, 387 Mich xxx (1972) is rescinded.
 
      Staff Comment: Administrative Order No. 2003-03 replaces Administrative
 Order No. 1972-4, 387 Mich xxx (1972), and simplifies the form of order used when
 the Supreme Court directs the appointment of counsel.  Administrative Order No.
 2003-03 is not intended as a substantive or procedural change in the process for
 appointment of appellate counsel in the Supreme Court.
 
           The staff comment is published only for the benefit of the bench and bar
      and is not an authoritative construction by the Court.