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Show rtfi rout THE DAILY RECOID Office of the Attorney- General State of Utah - at that' - 027 1, 1973 AUGUST REQUESTED BY: 73- time"" all offenses which carried a possible sentence than six months were classified in Utah as felonies. Counties are now required to provide counsel for indigents charged with Class A misdemeanors under the new penal code, which took effect July 1, .1973, since they carry a possible sentence of more than six months. of OPINION No. more Harris, Cache County Attorney; Roger S. Dutson, Roy City Attorney; Robert L. Newey, B. H. "The terms of the legislative enactment of Chapter 64 limited its purpose to those cases in which the penalty to be imposed could exceed confinement for. more than six months in Vernon B. Romney, Attorney General David L. Wilkinson, Chief Assistant Attorney General a Are counties required to provide indigent defendants with (and pay for) legal counsel? 1. QUESTIONS: 1. are of the opinion that it should be left to the Legislature, if it so desires,mis-to expand the system of assigned counsel to demeanor cases and to provide for the expenditure of public funds for that purpose." Id. at 75.2 CONCLUSION See dpinion. See opinion. 2. ... jailor prison. "We 2. Who has the responsibility of providing counsel for indigents charged with violation of a city' or town ordinance which carries a sentence1 of less than six months? CONCLUSIONS: . The Utah Supreme Court in Hortencio v. Fillis, 25 Utah 2d 73, 475 P. 2d 1011 (1970) dispelled any illusion that counties must provide funds for the defense of indigents charged with misdemeanors which carry a possible sentence of less than six months, when it said: Weber County Attorney PREPARED BY; WEDNESDAY, AUGUST 8 ,1978 i the opinion of this office that the county is to assume the not required by Utah Code Ann. SS counsel for indigents financial responsibility of providing ordinance which carry charged with violation of city or town a sentence of less than six months, 3 although recent Supreme Court rulings compel the appointment of counsel at public expense in such cases. It is OPINION In 1963 the Sixth Amendment to the United States was canvassed in the decision of Gideon v. Wainwriqht, 372 U.S. 335, 83 S.Ct. 792, 9 L.EdTZd 799 (1963) . In that case, the United States Supreme Court held that an indigent in a felony action has a right to be represented by appointed counsel. The Court said, "The right of one charged with a crime to counsel may not be deemed fundamental and 77-64- -1 1. Constitution essential to fair trials in other countries, but Id. at 344. (Emphasis added.) it Although the holding of the Utah Supreme Court in Hortencio v. Fillis. supra, that indigents have no constitutional right to counsel at public expense in misdemeanor cases was overruled by Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972) (See footnote 4), the language describing 2 the intent of the legislature unaffected. is in ours." demanding of it it enacted Chapter 64 was which seemingly prior opinions conflict with the opinions expressed herein is hereby superseded. 3 This decision placed a great burden on the legal profession, when valuable services without recompense. Any language contained in United States Supreme Court in Argersinger v. Hamlin. 407 U.S. 25, 32 L.Ed.2d'530, 92 S.Ct. 2006 (1972), expanded the constitutional right to counsel to all criminal cases in which tl.e accused may be imprisoned: 4 The . 1 in Under Utah Code Ann. SS 76-3-20- and 204.3 (as amended 4.2 "We the violation of such an ordinance would be considered a Class B or Class C misdemeanor. In order to "remove the burden of affording counsel for the impecunious defendants in criminal cases from the tired shoulders of the legal profession and placing it upon society, where it has always rightfully belonged," Washington County he U tali v. Dav, 22 Utah 2d 6, 10 447 P.2d 189 ( 19 66 Legislature enacted in 1965 Chapter 64 of Title 77 (Utah Code 1973) Ann.) 1 of Chapter further stated: The Court "Under the rule every judge will 64 Id. "Assigned counsel provides: shall represent each indigent person who is under arrest for or charged with a crime in which the penalty to be imposed could be confinement for more than six months in either jail or prison, if: (1) The defendant (2) The court, on requests its it, or own motion 5 407 U.S. 25 at 40. 77-64- -1. s or otherwise, t Respectfully submitted, It is axiomatic as a principle of statutory construction that all sections of Chapter 64 be read so as to avoid any inconsistency in the chapter as a whole. In light of this axiom, section 2 compels the conclusion that the language of section 1 was intended to apply to those criminal cases in which the penalty would be confinement for more than six months. Section 1 thus fulfilled the requirements of Gideon v. Wainwriqht. supra, at the time of its enactment since 860 - Larry Joe Wilkins, 1951 S. W. Temple SLCto Zions Frsc Natnl Bk; equip - Michael L. Adderly, 2665 to Zions Frst - Richard D. Clarke, 1545 Claybrne Ave. SLC to Brasher 856 S. 8550 W. Mgna Natnl Bk; empr - Arnold Lombardi, 1642 S. 35 E. Bntfl to Barlow Coach 857 & Trlr Sales; 858 1570 - Max A. E. SLC. empr Carson, 4075 S. to Cyctetown; mtrey 859 - Marsha p. Fluke, 4155 Laurel Grn Dr. Grngr to Zions Frst Natnl Bk; equip j Vernon b. romney Attorney General VBRDLWas Financing Statements - Ste en L. Martin, 3320 Scott Ct. SLC to Martin, Harold J. Jr.; boat 861 925 W Mbl Homes; empr - R. Dean Jones, 3838 S. 2980 E. SLC to Vly Bk & Trst Co; furn 922 923 - Nell L. Mahlum, 803 Vine St. Mry to Natnvd Fin Corp; hh; 924 - John M. Sherwood, 240 E. Ramona SLC to Paclfc Fin; equip furn of Until such time as the legislature-provideotherwise, would appear that the cost of providing counsel in such it cases must be born by the city or town whose ordinance is alleged to have been violated. Since all fines collected upon conyiction of such an ordinance go to the city or town in question, this result would appear to be equitable. so orders, and the defendant does not affirmatively reject of record the oppoxtunity to be represented." 855 trial light of this holding it appears that when an with violation of a city or town ordinance, is charged indigent (formerly u misdemeanor but after July 1, 1973, a Class B or Class C misdemeanor (see footnote 1)). a choice must be made before the trial is begun to determine whether or not imprisonment is to be sought. If imprisonment is to be sought, defense counsel must be appointed by the court if the court is to later impose a jail sentence. The question of who bears the financial burden, if any, of the appointment of such counsel in said misdemeanor cases is not covered in Utah Code Ann. liberty or other serious criminal sanction." 64 the In Provide counsel for every indigent person unable to employ counsel who faces the possibility of the deprivation of his of Chapter announce today, knew when permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity ot the offense and therefore know when t6 name a lawyer to represent the accused before the trial starts." (1) 2 we a misdemeanor starts that no imprisonment may be imposed, even though local law provides: "The legislature of the state of Utah hereby declares the following to be minimum standards to be provided by each county for the defense of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts and various administrative bodies of the state of Utah: Section a knowing intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Id. 407 U.S. 37. and (Supp. 1973). Section hold, therefore, that absent 932 - Keith S. Kemp, 1760 - Richard N. Bacca, 823 Blaine Ave. SLC to Frst Secur Bk of Ut; empr Genessee Ave. 926 - Carl A. 5055 S. SLCto 933 - David A. E. 13th S. SLC furn Fischer, 4736 Natnl Fin Co; 929 - Robertson, Rhoda, 4551 4985 S. Krns to Atristc W. furn W. Crpts; equip 930 - Del Vona McNeil, 1737 Hollywd Ave. Trst Co; trlr SLC to Vly Bk to pacifc Fin Jorgensen, 2475 to Paclfc Fin; ' 934 - Joy A. Ctist, 1868 W. 4960 S. SLC to Frd Mtr Crdt Co; gds & - 953 - Dave R. Walker, S. SLC to Vly 1573 E. 3080 & Trst Bk So; equip 954 - LaVell Bracken, 4379 Albright Dr. SLC TrstCo; machn to Vly Bk & 955 - Glenna Studham, 1036 Navajo St. SLC of Main; furn to Centry Fin Co - John W.' White, 4167 S. Orchrd Dr. Bntfl to Comnrcl Crdt Pin Inc; furn 956 - KayF. 3130 E. SLC 948 - Thomas G. Wander Lane SLC 957. - Robert L. Burdick, 51H Leisure Lane SLC to Intrlk Thrf furn 947 - Keith Andrews, 538 Stewart St. SLC to Tracy Clns Bk & Trst Co; boat 931 SLC furn 95.3 Pin Inc; furn Pillard, to 4653 Commrcl (rdt furn Armitage, 3317 S. to Intrlk Thrft; |