Rule 43-33. Appointment of Initial Counsel for Appeal by Indigent Defendant

(a) An indigent defendant who wishes to prosecute his or her appeal may apply to the court from which the appeal is taken for the appointment of counsel to prosecute the defendant's appeal and for a waiver of fees and costs, pursuant to Sections 63-7 and 44-1 through 44-5.

(b) The application for a waiver of costs and fees must be sent for investigation of the applicant's indigence to the public defender's office in the court from which the appeal is taken. The judicial authority shall assign the application for hearing within twenty days after filing unless otherwise ordered by the judicial authority for good cause shown. At least ten days before the hearing, the clerk's office shall notify in writing trial counsel, the state's attorney, the trial public defender's office to which the application had been sent for investigation and the chief of legal services of the public defender's office, of the date of such hearing. The lack of timely notification to any of the above parties shall result in a continuance of the hearing until proper and timely notification has been completed.

(c) The application for the appointment of counsel to prosecute the defendant's appeal shall be assigned to the same date and hearing as the application for waiver of fees, costs and expenses, and the judicial authority shall decide both applications at the same time. If trial counsel is not to be the assigned appellate counsel, the judicial authority shall inform and order trial counsel to cooperate fully with appellate counsel. If the chief of legal services of the public defender's office is to be assigned as appellate counsel, unless otherwise ordered by the court, trial counsel shall be deemed to have ''cooperated fully'' if counsel has delivered to the chief of legal services: a complete appellate worksheet, which shall be provided by the chief of legal services; and an electronic copy of trial counsel's file. Failure to fully cooperate with appellate counsel will result in a short continuance of the applications for appellate counsel and for the waiver of fees, costs and expenses until cooperation is completed, or, if full cooperation is not completed within a reasonable time, sanctions against trial counsel may be imposed.

(d) The judicial authority shall act promptly on the applications following the hearing. Upon determination by the judicial authority that a defendant in a criminal case is indigent, the court to which the fees required by statute or rule are to be paid may (1) waive payment by the defendant of fees specified by statute and of taxable costs, and waive the requirement of Section 60-9 concerning the furnishing of security for costs upon appeal,

(2) order that the necessary expenses of prosecuting the appeal be paid by the state, and (3) appoint appellate counsel and permit the withdrawal of the trial attorney's appearance provided the judicial authority is satisfied that that attorney has cooperated fully with appellate counsel in the preparation of the defendant's appeal.

Committee Notes

(P.B. 1978-1997, Sec. 950.) (Amended June 23, 2017, to