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HomeMy WebLinkAboutResolutions - 1964.10.26 - 19532October 27, 1964 Miscellaneous Resolun 4374 By Mr. Ingraham . . . . . . . IN RE: PRET,IMINARY REPORT OF THE LEGISLATIVE COMMITTEE To the Oakland County Board of Supervisors Mr. Chairman, Ladies and Gentlemen: •_ A resolution adopted by the Ingham County Board of Supervisors con co amendments to the rules of the Michigan Supreme Court, specifically Section 735.4 (1) and (2), was submitted to this Board on September 21, 1964, and was referred to your Legislative Committee. • Said new court rules pertain to appeal of criminal matters. (1) Right to Timely Appeal. If defendant is financially unable to provide counsel to perfect such appeal the court will appoint counsel for him and will furnish counsel with such portions of the trial transcript counsel requires to prepare post conviction motions and to perfect an appeal. (2) Delayed Appeal Upon defendant's request, if defendant is indigent, the trial court in which defendant was convicted shall appoint counsel for him and shall furnish such portions of the trial transcript counsel so appointed requires to prepare delayed motions for post conviction proceedings in the trial court and to prepare an application for leave to take delayed appeal. The Ingham County resolution states that all comparative estimates indicate that great, unexpected, and unallocated sums will be required to be spent forthwith to meet the mandale of this rule on the part of every county in the State of Michigan, and further, invites the participation of all other Boards of Supervisors in the State of Michigan in an endeavor to meet with the Michigan Supreme Court to discuss with them the multitude of ramifications attendant to this rule and to reconsider this matter. After due consideration, your Legislative Committee recommends to the Board of Supervisors that no concurrence be given to the Ingham County resolution regarding the new Appeal of Rights Law, and further, your Legislative Committee recommends that a study be initiated of a possible Public Defender system, such study to be made through the Legislative Committee. iWflhiärnA. Ewart Wiiliarri L. Mainland MR...CHAIRMAN, on behalf of the Lecislative Committee, 1 move the adoption of the foregoing report and of the recommendation contained therein, LEGISLATI VE COMM1TTE.E ' (= , Carl. E.../.1rraham, Chairman „ — ',--„--Vernon B. Edward - ^ Cyril E. Miller Moved by Ingraham supported by :navel's the report be adopted. A sufficient majority having voted therefor, the report was adopted. ,OARLAND COUNTY CORPOliAliON COUNSEL OAKLAND COUNTY COURT HOUSE *200 NORTH TELEGRAPH ROAD PONTIAC, MICHIGAN 480233 33B-4751 ROBERT P. ALLEN CORPORATION COLINSEt, HAYWARD WH Ti...DcR. CHIEF ASSISTANT CHARLES J. LONG SENIOR ASS WI ANT ALICE TREADWELL RE OR ETA September 28, 1964 TO: LEGISLATIVE COMMITTEE IN RE: Resolution of various county boards of supervisors relative to new court rules on appeal of criminal matters. The rule in question is 785.4 (1 & 2) which, for the Committee's consideration, is hereinafter set forth: "(1) Right to Timely Appeal. Hereafter, immediately upon sen- tenencing, the court shall advise the defendant in open court that he is entitled as a matter of constitutional right to ap- pellate review of his conviction and that, if defendant is financially unable to provide counsel to perfect such appeal, the court will appoint counsel for him and will furnish counsel with such portions of the trial transcript counsel requires to prepare postconviction motions and to perfect an appeal. The court shall further advise defendant that such request for the assistance of counsel must be made within 60 days on a form to be given to defendant by the court. Proceedings hereunder shall be stenographically recorded and a transcript thereof promptly made and filed with the clerk of the trial court as a part of the record of the case." "(2) Delayed Appeal. In all other criminal cases, application for leave to take delayed appeal may be filed pursuant to the provisions of Rule 806. Upon defendant's request, if defendant is indigent, the trial court in which defendant was convicted shall appoint counsel for him and shall furnish such portions of the trial transcript counsel so appointed requires to pre- pare delayed motions for postconviction proceedings in the trial court and to prepare an application for leave to take delayed appeal. Requests for appointment of appellaee counsel shall be in writing and accompanied by an affidavit of indigency setting forth the facts upon which defendant relies for support of his claim that he is too poor to employ counsel. Such written re- quest and affidavit shall be filed in the trial court and a copy thereof shall be served upon the prosecuting attorney of the county in which the trial court is located, counsel shall be appointed by the trial court, if after hearing, the defendant is found to be indigent or if the prosecuting attorney does not file objections within 30 days of service upon him of defendant's request and affidavit of indigency. Appeal fees shall be waived for ineigent defendants for whom appellate counsel has been appointed by the court, mimmommilm ursameastaimassia insamtmossasesm (1,4! Robert P. Allen' - nPA:C.K. OAKLAND COUNTY CORPORATION COUNSEL This rule was promulgated by the Michigan Supreme Court and is based in part upon Article I, Section 20 of the 1963 Michigan Constitution. Section 20 is hereinafter set forth: "In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such 'reasonable assistance as may be necessary to per- fect and prosecute an appeal." The necessity for the Rule was further caused by two opinions of the United States Supreme Court. In Gideon vs. 1:ainwr1ght, 372 U.S. 335, 1963, the Court held that indigent persons in order to have a fair trial pursuant to the provisions of Article XIV of the United States Constitution were entitled to counsel and that failure of a state to provide counsel for such indigent persons would nullify any con- viction obtained against the person. Further, in Douglas vs. California, 372 U.S. 353, 1963, the United States Supreme Court went even further and stated that the state was responsible to provide the accused with all the tools necessary for a proper appeal. This, we believe, means, if necessary, the transcript or partial transcript of the accused hearings. Based on the two cases and on the Federal and Michigan Constitutions, it appears to us that the Michigan Supreme Court had no alternative but to enact Rule 735.4 (1 & 2), otherwise we believe that any indigent accused tried in a Michigan Court without counsel provided by the county or the transcript or transcripts provided by the county that any conviction obtained against any such accuseds would be a nullity in view of the two United States Supreme Court decisions. In or discussion with Mr. Ingraham, we agreed that rather than attempt to prevail upon the Michigan Supreme Court to change or rescind its rule that an effort be made for the legislature to reimburse the counties for expenses of appeals by indigent accuseds. Very truly yours, monsmummw i:=Trmwoosala