Miss. R. Crim. P. 7.3

As amended through October 31, 2024

Rule 7.3 - Determination of Indigency; Appointment of Counsel; Compensation

(a)Standard for Indigency. The term "indigent" as used in these Rules means a person who is financially unable to employ counsel.

(b)Affidavit or Sworn Testimony of Substantial Hardship. A defendant desiring to proceed as an indigent may complete an affidavit concerning the defendant's financial resources on a court-approved form. In lieu of an affidavit, or together with an affidavit, the defendant may be examined under oath regarding defendant's financial resources by the judge responsible for determining indigency. Before said questioning, the defendant shall be advised of the penalties for perjury as provided by law.

(c)Reconsideration. Following a determination of indigency or non-indigency, if there has been a material change in circumstances, the defendant, the appointed attorney, or the prosecutor may move for reconsideration.

(d)Order of Appointment. Whenever counsel is appointed, the court shall enter an order to that effect, a copy of which shall be provided to the defendant, the appointed attorney, and the prosecutor.

(e)Appointment of Public Defender. In counties or municipalities which have a public defender, the public defender shall represent all defendants entitled to appointed counsel whenever authorized by law and able to do so.

(f)Other Appointments. If the public defender is not appointed, a private attorney shall be appointed to the case. All criminal appointments shall be made in a manner fair and equitable to the members of the bar, taking into account the skill likely to be required in handling a particular case.

(g)Appointment of Counsel During Appeal Following Withdrawal. When prior counsel is permitted to withdraw, the trial or appellate court shall appoint new counsel for a defendant legally entitled to such representation on appeal.

(h)Compensation. A private attorney appointed to represent an indigent defendant is entitled to compensation for services rendered as provided by law. Other than compensation for services rendered as provided by law, no appointed counsel may request or accept any payment or promise of payment for assisting in the representation of a defendant.

(i)Expenses. Appointed counsel shall be entitled to reasonable and necessary expenses incurred in defense of an indigent client, including fees and expenses of expert or professional persons, provided that such expenses are approved in the sound discretion of the court. Extraordinary expenses, including expert expenses, shall be approved in advance by the court.

Miss. R. Crim. P. 7.3

Adopted eff. 7/1/2017.

Comment

Rule 7.3 establishes a procedure for the determination of indigency. In making a determination of indigency, the court should consider factors such as the defendant's income and sources of income; employment status; real or personal property owned; outstanding obligations; and the number and age(s) of any dependant(s). See Miss. Code Ann. § 25-32-9(1). The court shall not consider the fact that the defendant has been released on bond, or the financial ability of friends or relatives not legally responsible for the defendant.

Rule 7.3(e) establishes the rule for appointment of public defenders rather than private counsel in counties or municipalities that have a public defender's office. See Miss. Code Ann. § 25-32-9(1). When the public defender's office cannot represent an indigent defendant (e.g., when there is a conflict of interest or the public defender is unable to provide prompt and adequate representation), private counsel shall be appointed. See Miss. Code Ann. § 25-32-13.

Rule 7.3(g) provides for continuity of representation by requiring the trial or appellate court to appoint new counsel for a defendant legally entitled to such representation on appeal, when prior counsel is permitted to withdraw. See M.R.A.P. 6(b); Jones v. State, 355 So. 2d 89, 91 (Miss. 1978) ("An accused is not only entitled to counsel at trial, but he is entitled to counsel on appeal from a conviction on the merits. If he is indigent and unable to afford an attorney, then he is entitled to a court-appointed attorney at trial and on appeal.").

Rule 7.3(h) is consistent with existing law regarding the compensation of appointed counsel. See Miss. Code Ann. § 99-15-17. Rule 7.3(i) addresses the reimbursement of reasonable and necessary expenses to appointed counsel. See Miss. Code Ann. §§ 99-15-17, 99-15-21; Howell v. State, 989 So. 2d 372, 390 (Miss. 2008) (quoting Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984)) ("[a]n indigent's . . . right to defense expenses . . . is conditioned upon a showing that such expenses are needed to prepare and present an adequate defense"); Hansen v. State, 592 So. 2d 114, 125 (Miss. 1991) (State must pay for "non-legal personnel needed by the defense" on showing of "substantial need"); Wilson v. State, 574 So. 2d 1338, 1341 (Miss. 1990).