13-4041

13-4041. Fee of counsel assigned in criminal
proceeding or insanity hearing on appeal or in postconviction
relief proceedings; reimbursement

A. Except pursuant to subsection G of this section, if counsel is appointed by the
court to represent the defendant in either a criminal proceeding or insanity hearing on
appeal, the county in which the court from which the appeal is taken presides shall pay
counsel, except that in those appeals where the defendant is represented by a public
defender or other publicly funded office, compensation shall not be set or paid.
Compensation for services rendered on appeal shall be in an amount as the supreme court
in its discretion deems reasonable, considering the services performed.

B. After the supreme court has affirmed a defendant's conviction and sentence in a
capital case, the supreme court, or if authorized by the supreme court, the presiding
judge of the county from which the case originated shall appoint counsel to represent the
capital defendant in the state postconviction relief proceeding. The court shall appoint
counsel from the state capital postconviction public defender office unless a conflict
exists or the court makes a finding that the office cannot represent the defendant.

C. Notwithstanding subsection B of this section, the supreme court shall establish
and maintain a list of persons who are qualified to represent capital defendants in those
cases in which the court does not appoint counsel from the state capital postconviction
public defender office. The supreme court may establish by rule more stringent standards
of competency for the appointment of postconviction counsel in capital cases than are
provided by this subsection. The supreme court may refuse to certify an attorney on the
list who meets the qualifications established under this subsection or may remove an
attorney from the list who meets the qualifications established under this subsection if
the supreme court determines that the attorney is incapable or unable to adequately
represent a capital defendant. The court shall appoint counsel from the list. Counsel who
are appointed from the list shall meet the following qualifications:

1. Be a member in good standing of the state bar of Arizona for at least five years
immediately preceding the appointment.

2. Have practiced in the area of state criminal appeals or postconviction
proceedings for at least three years immediately preceding the appointment.

3. Not previously have represented the capital defendant in the case either in the
trial court or in the direct appeal, unless the defendant and counsel expressly request
continued representation and waive all potential issues that are foreclosed by continued
representation.

D. Before filing a petition, the capital defendant may personally appear before the
trial court and waive counsel. If the trial court finds that the waiver is knowing and
voluntary, appointed counsel may withdraw. The time limits in which to file a petition
shall not be extended due solely to the change from appointed counsel to
self-representation.

E. If at any time the trial court determines that the capital defendant is not
indigent, appointed counsel shall no longer be compensated by public monies and may
withdraw.

F. Unless counsel is employed by a publicly funded office, counsel appointed to
represent a capital defendant in state postconviction relief proceedings shall be paid an
hourly rate of not to exceed one hundred dollars per hour for up to two hundred hours of
work, whether or not a petition is filed. Monies shall not be paid to court appointed
counsel unless either:

1. A petition is timely filed.

2. If a petition is not filed, a notice is timely filed stating that counsel has
reviewed the record and found no meritorious claim.

G. On a showing of good cause, the trial court shall compensate appointed counsel
from county funds in addition to the amount of compensation prescribed by subsection F of
this section by paying an hourly rate in an amount that does not exceed one hundred
dollars per hour. The attorney may establish good cause for additional fees by
demonstrating that the attorney spent over two hundred hours representing the defendant
in the proceedings. The court shall review and approve additional reasonable fees and
costs. If the attorney believes that the court has set an unreasonably low hourly rate or
if the court finds that the hours the attorney spent over the two hundred hour threshold
are unreasonable, the attorney may file a special action with the Arizona supreme court.
If counsel is appointed in successive postconviction relief proceedings, compensation
shall be paid pursuant to section 13-4013, subsection A.

H. The county shall request reimbursement for fees it incurs pursuant to
subsections F, G and I of this section arising out of the appointment of counsel to
represent an indigent capital defendant in a state postconviction relief proceeding. The
state shall pay fifty per cent of the fees incurred by the county out of monies
appropriated to the supreme court for these purposes. The supreme court shall approve
county requests for reimbursement after certification that the amount requested is owed.

I. The trial court may authorize additional monies to pay for investigative and
expert services that are reasonably necessary to adequately litigate those claims that
are not precluded by section 13-4232.