The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

Chapter 163: Public Defenders

• Subchapter 001: GENERAL PROVISIONS

• § 5201. Definitions

  In this chapter, the term:

  (1) “Detain” means to have in custody or otherwise deprive of freedom of action.

  (2) “Expenses,” when used with reference to representation under this chapter, includes the expenses of investigation, other preparation, and trial.

  (3) “Needy person” means a person who at the time his or her need is determined is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of representation or who is otherwise unable to employ an attorney.

  (4) “Serious crime” includes:

  (A) a felony;

  (B) a misdemeanor the maximum penalty for which is a fine of more than $1,000.00 or any period of imprisonment unless the judge, at the arraignment but before the entry of a plea, determines and states on the record that he or she will not sentence the defendant to a fine of more than $1,000.00 or a period of imprisonment if the defendant is convicted of the misdemeanor; and

  (C) an act that, but for the age of the person involved, would be a serious crime.

  (5) “Serious crime” does not include the following misdemeanor offenses unless the judge at arraignment but before the entry of a plea determines and states on the record that a sentence of imprisonment or a fine over $1,000.00 may be imposed on conviction:

  (A) [Repealed.]

  (B) Big game violations (10 V.S.A. § 4518)

  (C) Simple assault by mutual consent (13 V.S.A. § 1023(b))

  (D) Bad checks (13 V.S.A. § 2022)

  (E) Petit larceny (13 V.S.A. § 2502)

  (F) Theft of services under $500.00 (13 V.S.A. § 2582)

  (G) Retail theft under $900.00 (13 V.S.A. § 2577)

  (H) Unlawful mischief (13 V.S.A. § 3701(c))

  (I) Unlawful trespass (13 V.S.A. § 3705(a))

  (J) Disorderly conduct (13 V.S.A. § 1026)

  (K) Possession of cannabis—first offense (18 V.S.A. § 4230(a)(1))

  (L) Violation of municipal ordinances (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 118, § 18, eff. Oct. 1, 1973; 1975, No. 254 (Adj. Sess.), § 25; 1995, No. 21, § 2; 2007, No. 108 (Adj. Sess.), § 2; 2015, No. 147 (Adj. Sess.), § 8, eff. May 31, 2016.)

• § 5202. Construction with other laws

  The protections provided by this chapter do not exclude any protection or sanction that the law otherwise provides. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5203. Federal courts

  This chapter applies only to representation in or with respect to the courts of this State. It does not prohibit the Defender General, the Deputy Defender General, or public defenders from representing a needy person in a federal court of the United States, if:

  (1) the matter arises out of or is related to an action pending or recently pending in a court of criminal jurisdiction of the State;

  (2) representation is under a plan of the U.S. District Court as required by the Criminal Justice Act of 1964 (18 U.S.C. § 3006A); or

  (3) representation is in or with respect to a matter arising out of or relating to immigration status. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1987, No. 183 (Adj. Sess.), § 22; 2017, No. 177 (Adj. Sess.), § 2.)

• § 5204. Court rules

  The Supreme Court shall make such rules as shall further the intent and purposes of this chapter. Those rules shall be controlling in all courts of this State. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5205. Court assigned attorneys

  (a) The Supreme Court shall prescribe reasonable rates of compensation for the services of attorneys, assigned under sections 5272 or 5274 of this title, who have not entered into a contract with the Defender General to provide assigned counsel services.

  (b) The Defender General shall enter into contract with a member of the bar to serve as assigned counsel coordinator, who shall determine those expenses, necessary to representation, for which assigned counsel shall be reimbursed. The Defender General may not supervise the duties of the assigned counsel coordinator, but the assigned counsel coordinator shall consult with the Defender General concerning the assigned counsel budget.

  (c) The Defender General may enter into contracts, as provided by section 5253 of this title, with attorneys to provide assigned counsel services. Payment and expenses of assigned counsel, and of the assigned counsel coordinator, shall be made from funds appropriated to the Office of the Defender General for the compensation of assigned counsel. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1981, No. 146 (Adj. Sess.), § 1, eff. April 8, 1982.)

• § 5206. Appointment of counsel by court; use of uncounseled convictions

  (a) Prior to any decision regarding the appointment of counsel under the provisions of subdivisions 5201(4)(B) and (5) of this title, the judge shall inquire of the prosecutor whether a term of imprisonment or a fine over $1,000.00 will be sought.

  (b) At the request of the prosecutor or on the judge’s own motion, at any time prior to the commencement of trial and if there is a change of circumstances or new information, the judge may vacate the commitment to not sentence the defendant to a fine of not more than $1,000.00 or to a period of incarceration upon conviction. If the judge vacates the commitment, the judge shall inform the defendant of the right to apply for the appointment of counsel at State expense.

  (c) A prior uncounseled criminal conviction of a crime listed in subdivisions (A) through (L) of subdivision (5) of section 5201 of this title in which counsel was denied and the defendant was otherwise entitled to appointed counsel under this subchapter, shall not be used to subject that defendant to the enhanced statutory penalty for a subsequent conviction for the same offense.

  (d) Notwithstanding subdivision 5201(4)(B) of this title, a needy person who is charged with an offense which provides for a felony penalty for the next subsequent conviction for the same offense shall be entitled to counsel under this chapter. (Added 1995, No. 21, § 3.)

• Subchapter 002: NOTICE AND NATURE OF RIGHTS

• § 5231. Right to representation, services, and facilities

  (a) A needy person who is being detained by a law enforcement officer without charge or judicial process, or who is charged with having committed or is being detained under a conviction of a serious crime, is entitled:

  (1) To be represented by an attorney to the same extent as a person having his or her own counsel; and

  (2) To be provided with the necessary services and facilities of representation. Any such necessary services and facilities of representation that exceed $1,500.00 per item must receive prior approval from the court after a hearing involving the parties. The court may conduct the hearing outside the presence of the State, but only to the extent necessary to preserve privileged or confidential information. This obligation and requirement to obtain prior court approval shall also be imposed in like manner upon the Attorney General or a State’s Attorney prosecuting a violation of the law.

  (b) The attorney, services and facilities, and court costs shall be provided at public expense to the extent that the person, at the time the court determines need, is unable to provide for the person’s payment without undue hardship. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1995, No. 178 (Adj. Sess.), § 63; 2009, No. 33, § 34.)

• § 5232. Particular proceedings

  Counsel shall be assigned under section 5231 of this title to represent needy persons in any of the following:

  (1) extradition proceedings;

  (2) habeas corpus and other proceedings wherein the person is confined in a penal or mental institution in this state and seeks release therefrom; or

  (3) proceedings arising out of a petition brought in a juvenile court when the court deems the interests of justice require representation of either the child or his or her parents or guardian or both, including any subsequent proceedings arising from an order therein. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5233. Extent of services

  (a) A needy person who is entitled to be represented by an attorney under section 5231 of this title is entitled:

  (1) to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing the person’s own counsel would be entitled to be represented by an attorney and including revocation of probation or parole;

  (2) to be represented in any appeal; and

  (3) to be represented in any other postconviction proceeding which may have more than a minimal effect on the length or conditions of detention where the attorney considers:

  (A) the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and

  (B) the allegations and other factual contentions to have evidentiary support, or likely to have evidentiary support after a reasonable opportunity for further investigation and discovery.

  (b) A needy person’s right to a benefit under this section is not affected by having provided a similar benefit at the person’s own expense, or by having waived it, at an earlier stage. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 2003, No. 157 (Adj. Sess.), § 10, eff. June 8, 2004; 2015, No. 137 (Adj. Sess.), § 6, eff. May 25, 2016.)

• § 5234. Notice of rights; representation provided

  (a) If a person who is being detained by a law enforcement officer without charge or judicial process, or who is charged with having committed or is being detained under a conviction of a serious crime, is not represented by an attorney under conditions in which a person having his or her own counsel would be entitled to be so represented, the law enforcement officer, magistrate, or court concerned shall:

  (1) Clearly inform him or her of the right of a person to be represented by an attorney and of a needy person to be represented at public expense; and

  (2) If the person detained or charged does not have an attorney and does not knowingly, voluntarily and intelligently waive his or her right to have an attorney when detained or charged, notify the appropriate public defender that he or she is not so represented. This shall be done upon commencement of detention, formal charge, or post-conviction proceeding, as the case may be. As used in this subsection, the term “commencement of detention” includes the taking into custody of a probationer or parolee.

  (b) Upon commencement of any later judicial proceeding relating to the same matter, the presiding officer shall clearly inform the person so detained or charged of the right of a needy person to be represented by an attorney at public expense.

  (c) Information given to a person by a law enforcement officer under this section is effective only if it is communicated to a person in a manner meeting standards under the constitution of the United States relating to admissibility in evidence against him or her of statements of a detained person.

  (d) Information meeting the standards of subsection (c) of this section and given to a person by a law enforcement officer under this section gives rise to a rebuttable presumption that the information was effectively communicated if:

  (1) It is in writing or otherwise recorded;

  (2) The recipient records his or her acknowledgment of receipt and time of receipt of the information; and

  (3) The material so recorded under subdivisions (1) and (2) of this subsection is filed with the court next concerned. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 109, § 8, eff. 30 days from April 25, 1973.)

• § 5235. Notice to public defender

  If a law enforcement officer, magistrate, or court determines that a person is entitled to be represented by an attorney at public expense, the officer, magistrate, or court, as the case may be, shall promptly notify the appropriate public defender. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5236. Determination of financial need

  (a) The determination whether a person covered by sections 5231-5234 of this title is a needy person shall be deferred until his or her first appearance in court or in a suit for payment or reimbursement under section 5255 of this title, whichever occurs earlier. Thereafter, the court shall determine, with respect to each proceeding, whether the person is a needy person. As used in this section, an appeal is a separate proceeding. The determination of need, for purposes of an appeal, shall be based on a separate application submitted on or after the date of the order appealed from, except that an appeal from a proceeding under 33 V.S.A. chapter 51, 52, or 53 is not a separate proceeding and does not require a separate application.

  (b) In determining whether a person is a needy person and the extent of his or her ability to pay, the court may consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents as specified in rules of the Supreme Court adopted pursuant to section 5204 of this title. Release on bail does not necessarily disqualify a person from being a needy person. In each case, the person, subject to the penalties for perjury, shall certify in writing or by other record such information relating to ability to pay as the Supreme Court prescribes.

  (c) A determination of whether a person is a needy person under this section shall be made by the clerk of the court, or any other judicial officer of the court. After review of the initial determination by the presiding judge of the trial court the applicant, the State, or the Office of the Defender General may appeal the determination to a single Justice of the Supreme Court of this State, in accordance with the rules of the Supreme Court.

  (d) In determining whether a person is a needy person under this section and the extent of the person’s ability to pay, the clerk of court or the judicial officer who is making that determination may require the applicant to provide proof of income at a time to be determined by the clerk or judicial officer.

  (e)(1) The Commissioner of Taxes or the Commissioner’s designee, when requested by the clerk of court or the judicial officer, shall furnish the requester with a nonspecific report of the adjusted gross income as shown on the Vermont tax return of the applicant or, in the case of a joint return, the applicant and the applicant’s spouse as it relates to the federal poverty income guidelines in effect as of December 31 of the year for which the tax information is requested. Such report shall only identify whether the income of the applicant (or the applicant and the applicant’s spouse in the case of a joint return) is at or below the federal poverty income guidelines applicable to family size or is within the following percentages of those guidelines:

  101-124%

  125-150%

  151-175%

  176-200%, or

  over 200%

  (2) Information furnished to the requester shall be made available to the applicant and the court.

  (f) Any financial information furnished or disclosed under subsections (d) and (e) of this section shall be confidential and available for review only by the clerk or judicial officer or the person submitting the financial information. In the event of an appeal, any identifying information shall be confidential and not made part of the public record.

  (g) A person who knowingly violates subsection (f) of this section shall be fined not more than $500.00, and shall be liable in a civil action for any damages resulting from improper disclosure. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1987, No. 266 (Adj. Sess.); 1991, No. 231 (Adj. Sess.), § 1; 1993, No. 60, § 57; 1995, No. 178 (Adj. Sess.), § 62; 1997, No. 45, §§ 1, 2, eff. June 19, 1997; 1997, No. 139 (Adj. Sess.), § 3; 1997, No. 156 (Adj. Sess.), § 25, eff. April 29, 1998; 2013, No. 131 (Adj. Sess.), § 108.)

• § 5237. Waiver

  A person who has been appropriately informed under section 5234 of this title may waive in writing, or by other record, any right provided by this chapter, if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person’s age, education, and familiarity with the English language, and the complexity of the crime involved. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5238. Co-payment and reimbursement orders

  (a) On or before June 1 of each year, the Defender General shall calculate an average direct cost per case of representation extended in the preceding calendar year by category of case. The categories of cases for which calculations are made shall be: felonies; misdemeanors; postconviction and miscellaneous criminal-related proceedings, including violations of probation, extraditions, and habeas corpus; juvenile proceedings, not including juvenile delinquency proceedings; and appeals. The calculations shall be based on all representation supported by the budget of the Defender General whether provided by public defenders, contractors or assigned counsel. The administrative costs of running the Office of Defender General shall not be included in the calculation.

  (b) The court shall require any person assigned counsel pursuant to section 5236 of this title to pay for all or part of the cost of representation based upon his or her ability to pay. Unless the person and cohabiting family members are found to be financially unable to pay, in all cases the court shall order a minimum payment of $50.00. This assignment fee shall be paid within 60 days of assignment of counsel. If the court finds that the income of the person and cohabiting family members for the past year equaled or exceeded 125 percent of the federal poverty level applicable to their family size, the balance to be paid by the person found eligible, when added to the minimum assignment fee, shall be equal to the amount calculated according to the following chart:

  Income as a percentage	Defendant’s percentage of
  of federal poverty level	average direct cost per case
  applicable to family size	for category of case
  125-150%	25%
  151-175	50
  176-200	75
  over 200	100

  (c) The amount to be paid under subsection (b) of this section shall be divided by the court between a co-payment and reimbursement amount. A separate payment amount shall be calculated for each proceeding. If a defendant is charged with more than one related offense, the court may impose one payment amount calculated based on the category of case for the offense with the highest possible punishment.

  (d) To the extent that the court finds that the eligible person has income or assets available to enable payment of an immediate co-payment, it shall order such a co-payment to cover in whole or in part the amount of the costs of representation to be borne by the eligible person. The co-payment shall be paid to the clerk of the court. Any portion of the co-payment not paid to the clerk may be included in a reimbursement order.

  (e) The remainder of the amount to be paid by the person found eligible shall be ordered to be paid in a reimbursement order. Unless the court extends the time because the eligible person is incarcerated or good cause is shown, the reimbursement amount shall become due 60 days from the date of the order.

  (f) A person who may be or has been ordered to pay all or part of the cost of representation by co-payment or reimbursement order may at any time petition the court making the order for remission of all of the amount or any part thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardships on the defendant or the defendant’s immediate family or that the circumstances of case disposition and the interests of justice so require, the court may remit all or part of the amount due or modify the method of payment.

  (g) A juvenile shall not be ordered to pay any part of the cost of representation.

  (h) A copayment or reimbursement order under this section shall be made by the clerk of the court or any other judicial officer of the court. The applicant, the State, or the Office of the Defender General may appeal the order to a single Justice of the Supreme Court of this State, in accordance with the rules of the Supreme Court. (Added 1991, No. 231 (Adj. Sess.), § 2; amended 1993, No. 60, § 57a; 1995, No. 77 (Adj. Sess.), § 9, eff. Mar. 21, 1996; 2011, No. 128 (Adj. Sess.), § 38; 2015, No. 133 (Adj. Sess.), § 2, eff. May 25, 2016.)

• § 5239. Public Defender Special Fund

  (a) The Public Defender Special Fund is hereby created. All co-payments, reimbursements, and assignment fees paid by persons receiving representation under this chapter, as well as all amounts recovered pursuant to section 5255 of this title and 23 V.S.A. § 1210(j), shall be deposited in the Fund.

  (b) The Special Fund created by subsection (a) of this section shall be organized and managed as follows:

  (1) The Fund shall be managed on the State Central Accounting System under the control of the Commissioner of Finance and Management with the actual monies held under the authority and responsibility of the State Treasurer.

  (2) [Repealed.]

  (3) All interest earned by the Fund shall be credited to the General Fund.

  (4) All monies to be expended from the Fund shall be appropriated annually by the General Assembly, or allocated pursuant to the authority granted by the General Assembly to the Commissioner of Finance and Management with regard to excess receipts.

  (5) Expenditures from the Fund shall not exceed available revenues, except that the Commissioner of Finance and Management may anticipate receipts to the Fund and issue warrants based thereon, and in so doing may establish limits on expenditures in anticipation of receipts.

  (6) All cash balances in the Fund at the end of the fiscal year shall be carried forward and remain in the Fund unspent until authorized by the General Assembly.

  (7) All monies remaining in the Fund when it is terminated shall revert to the General Fund.

  (8) Any negative cash balance in the Fund at the end of a fiscal year shall be carried forward and applied against the Fund’s receipts for the next fiscal year. (Added 1991, No. 231 (Adj. Sess.), § 3, eff. May 28, 1992; amended 1993, No. 60, § 58, eff. May 28, 1993; 1993, No. 210 (Adj. Sess.), § 55, eff. June 17, 1994; 1995, No. 77 (Adj. Sess.), § 10, eff. Mar. 21, 1996; 2009, No. 67 (Adj. Sess.), § 85, eff. Feb. 25, 2010; 2011, No. 56, § 8, eff. May 31, 2011.)

• § 5240. Collection of reimbursements

  (a) If persons receiving representation under this chapter fail to make reimbursement on the date specified in the court order, the Court Administrator shall refer the uncollected reimbursement orders to the Commissioner of Taxes, and the Commissioner is authorized to proceed to collection in the name of the State.

  (b) The Commissioner is authorized to use setoff debt collection, as provided in 32 V.S.A. §§ 5931-5940, for collecting reimbursements.

  (c) The Commissioner of Taxes is authorized to contract with private collection agencies for the sole purpose of collection of reimbursements imposed by judicial order, and such order shall be deemed reasonable notice of the debt. The Commissioner may agree to pay a collection agency a fixed rate or a percentage of the amount actually collected and remitted to the State. Notwithstanding 32 V.S.A. § 502, the Commissioner may charge against such collections any cost of such collections.

  (d) If a person provided representation under this chapter is convicted of a crime in the matter for which representation was provided, the sentence shall include an order to pay any reimbursements ordered and unpaid. The order shall be enforced as a condition of probation, supervised community sentence, or parole if the convicted person is sentenced to probation, supervised community sentence, or imprisonment and later placed on parole.

  (e) The amount specified to be paid by a reimbursement order shall be considered a fine, forfeiture, or penalty for purposes of section 7171 of this title and may be collected as provided in that section. (Added 1991, No. 231 (Adj. Sess.), § 4, eff. May 28, 1992; amended 2011, No. 128 (Adj. Sess.), § 39.)

• § 5241. Ineffective assistance claim

  (a) No action shall be brought for professional negligence against a criminal defense attorney under contract with or providing ad hoc legal services for the Office of the Defender General unless the plaintiff has first successfully prevailed in a claim for postconviction relief based upon ineffective assistance of counsel in the same or a substantially related matter. Failure to prevail in a claim for postconviction relief based upon ineffective assistance of counsel under contract with or providing ad hoc legal services for the Office of the Defender General shall bar any claim against the attorney based upon the attorney’s representation in the same or a substantially related matter.

  (b) In the performance of duties pursuant to a contract with or providing ad hoc legal services to the Office of the Defender General, an attorney shall have the benefit of immunity to the same extent as an attorney employed by the Defender General. (Added 2011, No. 100 (Adj. Sess.), § 1; amended 2015, No. 58, § E.203, eff. June 11, 2015; 2017, No. 177 (Adj. Sess.), § 3.)

• Subchapter 003: OFFICE OF DEFENDER GENERAL

• § 5251. Creation of office

  The Office of Defender General is established. The Office shall consist of the Defender General who shall be the head of the Office, a Deputy Defender General, if one is appointed in accordance with subsection 5253(e) of this title, and such public defenders and deputy public defenders selected by the Defender General and within the limits of funds and staffing authorized by the General Assembly. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 266 (Adj. Sess.), § 2; 1981, No. 146 (Adj. Sess.), § 2, eff. April 8, 1982; 1987, No. 183 (Adj. Sess.), § 23.)

• § 5252. Appointment; compensation

  (a) The Defender General shall be appointed by the Governor subject to the advice and consent of the Senate.

  (b) There shall be included in the qualifications for appointment that the Defender General shall be an attorney-at-law who has been engaged in the practice of law or as a judge in the State of Vermont for a period of at least five out of the 10 years preceding his or her appointment. Further, he or she shall be an attorney or judge who has spent a substantial part of his or her last five years in the practice of criminal law or presiding over the adjudication of criminal cases.

  (c) The Defender General shall be appointed for a term of four years and until his or her successor is appointed and qualified.

  (d) [Repealed.] (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 266 (Adj. Sess.), § 3; 1975, No. 227 (Adj. Sess.), § 5, eff. April 7, 1976; 1977, No. 109, § 33(g).)

• § 5253. Powers and duties

  (a) The Defender General has the primary responsibility for providing needy persons with legal services under this chapter. He or she shall have also the duty of providing legal services to those persons in the custody of the Commissioner of Corrections. He or she may provide these services personally, through public defenders employed under subsection 5254(a) of this title, or through attorneys-at-law as provided by subsection (b) of this section. No other official or agency of the State may supervise the Defender General or assign him or her duties in addition to those prescribed by this chapter. He or she may not practice law other than in the performance of his or her duties under this chapter or engage in any other occupation, except as provided in section 5203 of this title.

  (b) When necessary or appropriate, the Defender General may contract for the services of investigators or additional attorneys-at-law to provide services to needy persons covered by this chapter or to carry out any other function of the Office of Defender General provided that:

  (1) the services performed shall meet the professional standards that this chapter prescribes for services performed by the Office of the Defender General;

  (2) the services are subject to the supervision and control of the Defender General, except as otherwise provided in section 5205 involving contracts providing for representation in cases involving conflict of interest; and

  (3) the services contracted under this subsection shall be approved by the Secretary of Administration.

  (c) The Defender General shall supervise the training of all public defenders, and for this purpose he or she may establish a training course.

  (d) The Defender General shall consult and cooperate with interested professional groups with respect to the causes of crime, the development of effective means for discouraging crime, the rehabilitation of convicted criminals, the administration of criminal justice, and the administration of the Office of the Defender General.

  (e) The Defender General may appoint a Deputy Defender General with the approval of the Governor, remove the Deputy at his or her pleasure, and shall be responsible for the Deputy’s acts. The Deputy shall perform such duties as the Defender General shall direct, and in the absence or disability of the Defender General perform the duties of the Defender General. In case a vacancy occurs in the Office of the Defender General, the Deputy shall assume and discharge the duties of such office until the vacancy is filled. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 77, § 42; 1973, No. 266 (Adj. Sess.), § 4; 1981, No. 146 (Adj. Sess.), § 3, eff. April 8, 1982; 1987, No. 183 (Adj. Sess.), § 24.)

• § 5254. Personnel designation and expenditures

  (a) The Defender General, Deputy Defender General, public defenders, and deputy public defenders shall be exempt from the classified State service.

  (b) Clerical and office staff in the Office of the Defender General and in all local offices shall be hired by the Defender General. Clerical and office staff shall be State employees paid by the State, and shall receive those benefits and compensation available to classified State employees who are similarly situated, unless otherwise covered by the provisions of a collective bargaining agreement setting forth the terms and conditions of employment, negotiated pursuant to the provisions of 3 V.S.A. chapter 27. Clerical and office staff employed by the Office of the Defender General shall not be part of the classified service as set forth in 3 V.S.A. chapter 13.

  (c) The Deputy Defender General shall be entitled to compensation at an annual rate that does not exceed an amount $500.00 less than the salary of the Defender General. The public defenders and deputy public defenders shall be entitled to compensation at annual rates not to exceed an amount $1,000.00 less than the salary of the Defender General.

  (d) The Defender General is responsible for assuming expenses for his or her office and all local offices. The entirety of expenditures shall not exceed those set in the annual budget of the Office of the Defender General and such expenditures shall be subject to the provisions of 32 V.S.A. § 702. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 77, § 41; 1973, No. 266 (Adj. Sess.), § 5; 1977, No. 109, § 14; 1983, No. 88, § 15; 1987, No. 183 (Adj. Sess.), § 25; 1997, No. 92 (Adj. Sess.), §§ 6a, 8; 2015, No. 58, § E.203.1.)

• § 5255. Recovery from defendant

  (a) The Defender General or Commissioner of Taxes, on behalf of the State, may recover reimbursement from each person who has received legal assistance or other benefit under this chapter:

  (1) To which the person was not entitled;

  (2) With respect to which the person was not a needy person when the person received it; or

  (3) With respect to which the person has failed to make the certification required by section 5236(b) of this title;

  and for which the person refuses to reimburse. Suit must be brought within six years after the date on which the aid was received.

  (b) The Defender General or the Commissioner of Taxes, on behalf of the State, may recover reimbursement from each person, other than a person covered by subsection (a) of this section, who has received legal assistance under this chapter and who, on the date on which suit is brought, is financially able to reimburse the State for it according to the standards of ability to pay applicable under subdivision 5201(3), section 5231, and subsection 5238(b) of this title, but refuses to do so. Suit must be brought within three years after the date on which the benefit was received. The amount of recovery shall be equal to the average cost per case for representation supported by the budget of the Defender General for the calendar year in which legal assistance was completed as determined by the Defender General, less any reimbursement or co-payment actually paid for representation.

  (c) Amounts recovered under this section shall be paid into the Public Defender Special Fund. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; 1991, No. 231 (Adj. Sess.), § 5, eff. May 28, 1992.)

• § 5256. Reports

  The Defender General shall submit an annual report of his or her activities to the House and Senate Committees on Judiciary showing the number of persons represented under this chapter, the crimes involved, the outcome of each case, and the expenditures totaled by kind made in carrying out the responsibilities imposed by this chapter. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 2011, No. 139 (Adj. Sess.), § 13, eff. May 14, 2012.)

• § 5257. Expenses

  The Defender General shall be reimbursed for all reasonable expenses, including mileage and other travel expense, lodging, and subsistence, incurred in carrying out his or her responsibilities under this chapter. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5258. Audit

  (a) In the 1995 audit and thereafter as appropriate, the auditor of accounts shall conduct an audit of the assignment of counsel to needy persons under section 5231 of this title, determination of financial need under section 5236 of this title, co-payment and reimbursement orders under section 5238 of this title and collection of reimbursements under section 5240 of this title.

  (b) The audit shall evaluate compliance with statutory and legal requirements and internal controls. If noncompliance is found, the auditor shall recommend that proper corrections be made. The auditor shall recommend uniform practice by the responsible agencies and the courts throughout the State. The auditor shall report his or her findings in accordance with 32 V.S.A. § 163(5).

  (c) The 1995 audit required by this section shall be funded in the amount of $5,000.00 from the special fund created under section 5239 of this title. (Added 1995, No. 21, § 5.)

• § 5259. Duty to investigate

  (a) The Defender General shall investigate issues related to the health, safety, and welfare of inmates in correctional facilities and shall receive the cooperation of all State agencies in carrying out this duty. Issues that require an investigation by the Defender General shall, at a minimum, include:

  (1) the death of an inmate;

  (2) a suicide attempt that requires more than 24 hours of emergency hospitalization; and

  (3) a critical incident that results in injury to an inmate from an assault, use of force, or accident in a correctional facility that requires more than 24 hours of emergency hospitalization.

  (b)(1) When an incident enumerated in subdivisions (a)(1)-(3) of this section occurs, the Department of Corrections shall notify the Defender General as soon as reasonably practicable.

  (2) The Commissioner shall report weekly to the Defender General regarding any critical incident that negatively impacts the health, safety, or welfare of an inmate, the conditions of confinement, or the adequacy of care provided to inmates.

  (c) In carrying out the duties under this section, the Defender General:

  (1) Shall be given reasonable unaccompanied access to the correctional facility and inmates and is authorized to speak with any relevant personnel from the Department of Corrections and other State agencies subject to the individual’s constitutional rights and to legitimate law enforcement concerns regarding preservation of a criminal investigation, if any.

  (2) Shall be given broad access to records concerning the incident and any inmates involved in the incident. In response to a request for records from the Defender General, the Commissioner of Corrections shall provide the records promptly and no subpoena or public records request shall be required. Records subject to this section include video or audio recordings.

  (d) The Defender General is authorized to protect the confidentiality of sources in the course of an investigation pursuant to this section. Work product generated in the course of representation of a client that contains confidential communication between an inmate and the Defender General shall not be discoverable and records of communications between inmates and the Defender General may be redacted.

  (e) Where appropriate, the Defender General shall report to the Department of Corrections and the Joint Committee on Corrections Oversight identifying any concerns and suggested policy changes that arise from an incident that resulted in an investigation. (Added 2013, No. 110 (Adj. Sess.), § 1, eff. April 22, 2014.)

• Subchapter 004: OFFICE OF PUBLIC DEFENDER

• § 5271. Offices established

  The Defender General may establish public defender offices to carry out his or her responsibilities under this chapter. Each public defender office shall be headed by a public defender selected by the Defender General within the limits of funds and staffing authorized by the General Assembly. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 266 (Adj. Sess.), § 6; 1981, No. 146 (Adj. Sess.), § 4, eff. April 8, 1982.)

• § 5272. Appointment; co-counsel; compensation

  Upon notification under section 5234 of this title or upon request by the person concerned, a public defender shall represent the person with respect to whom the notification is made. If the public defender assigned to the court’s jurisdiction is unable to represent the person, the court concerned shall assign an attorney to represent the person. Representation may include co-counsel or associate counsel in appropriate cases. Compensation of the appointed counsel shall be made from funds appropriated to the Office of the Defender General for the compensation of assigned counsel. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note; amended 1973, No. 77, § 43; 1981, No. 146 (Adj. Sess.), § 5, eff. April 8, 1982.)

• § 5273. Qualifications

  (a) The Deputy Defender General and a public defender must be licensed to practice law in this State and otherwise competent to counsel and defend a person charged with crime.

  (b) The Deputy Defender General and a public defender may not otherwise engage in the practice of criminal law, except as otherwise provided in section 5203 of this title. This limitation shall not apply to the assigned counsel coordinator or to attorneys providing services under contract pursuant to section 5253 of this title. (Added 1971, No 161 (Adj. Sess.), § 6, eff. date, see note; amended 1981, No. 146 (Adj. Sess.), § 6, eff. April 8, 1982; 1987, No. 183 (Adj. Sess.), § 26.)

• § 5274. Replacement

  At any stage, including appeal or other post-conviction proceedings, the Defender General or the court for good cause may assign a replacement attorney. The replacement attorney has the same functions with respect to the needy person as the attorney whom he or she replaces. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5275. Additional fees forbidden

  A person who represents a needy person under this chapter may not receive any fee for his or her services in addition to that provided under this chapter. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5276. Reports

  An attorney who is assigned by a court to represent a needy person under section 5272 or 5274 of this title shall report to the Defender General on his or her representation of the needy person, as prescribed by the Defender General. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)

• § 5277. Use of State facilities

  An attorney representing a person under this chapter is entitled to use any State technical services and facilities for the development or evaluation of evidence that are available to the prosecutor. (Added 1971, No. 161 (Adj. Sess.), § 6, eff. date, see note.)