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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.