Notice and Nature of Rights

V.S.A. tit. 13, ch. 163, subch. 2

in effect

13 V.S.A. § 5231 Right to representation, services, and facilities

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.

13 V.S.A. § 5232 Particular proceedings

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.

13 V.S.A. § 5233 Extent of services

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.

13 V.S.A. § 5234 Notice of rights; representation provided

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.

13 V.S.A. § 5235 Notice to public defender

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.

13 V.S.A. § 5236 Determination of financial need

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.

13 V.S.A. § 5237 Waiver

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.

13 V.S.A. § 5238 Co-payment and reimbursement orders

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.

13 V.S.A. § 5239 Public Defender Special Fund

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.

13 V.S.A. § 5240 Collection of reimbursements

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.

13 V.S.A. § 5241 Ineffective assistance claim

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.

Source: Vermont General Assembly (legislature.vermont.gov)URL: https://legislature.vermont.gov/statutes/chapter/13/163Fetched: 10/21/2026