Colorado § 21-1-103 - Representation of indigent persons - definition.

§ 21-1-103. Representation of indigent persons - definition.

(1) The state public defender shall represent as counsel, without charge except as provided in subsection (3) of this section, each indigent person who is under arrest for or charged with committing a felony if:

(a) The defendant requests it and he complies with subsection (3) of this section; or

(b) The court, on its own motion or otherwise, so orders and the defendant does not affirmatively reject, of record, the opportunity to be represented by legal counsel in the proceeding. When appointed by the court, the office of the state public defender shall be limited to defending the indigent person and shall not be appointed to act as advisory counsel. The court shall not appoint a public defender to represent a defendant if such defendant does not fall within the fiscal standards or guidelines established by the supreme court for appointment of public defenders.

(2) The state public defender shall represent indigent persons charged in any court with crimes that constitute misdemeanors and in which the charged offense includes a possible sentence of incarceration; juveniles upon whom a delinquency petition is filed or who are in any way restrained by court order, process, or otherwise; persons held in any institution against their will by process or otherwise for the treatment of any disease or disorder or confined for the protection of the public; and persons charged with municipal code violations as the state public defender in his or her discretion may determine, subject to review by the court if:

(a) The indigent person or the indigent person's parent or legal guardian in delinquency or other actions pursuant to article 2.5 of title 19 requests it and complies with subsection (3) of this section; or

(b) The court, on its own motion or otherwise, so orders or requests and the defendant or the defendant's parent or legal guardian in delinquency or other actions pursuant to article 2.5 of title 19 does not affirmatively reject, of record, the opportunity to be represented by legal counsel in the proceeding. The court shall not appoint a public defender to represent the defendant, or the defendant's parent or legal guardian, if the person does not fall within the fiscal standards or guidelines established by the supreme court.

(3) (a) The state public defender shall make the determination of indigency, subject to review by the court. When a defendant or, if applicable, the defendant's parent or legal guardian requests representation by a public defender, such person shall submit an appropriate application, the form of which states that the application is signed under oath and under the penalty of perjury and that a false statement may be prosecuted as such. The applicant shall pay a nonrefundable processing fee of twenty-five dollars if the court-appointed counsel enters an appearance based upon the application; except that a person under the jurisdiction of the juvenile court, as defined in section 19-1-103; a juvenile; or the person's or juvenile's parent, guardian, or legal custodian, is not required to pay the processing fee. A court or the state shall not enforce or collect a processing fee assessed by the court on or after July 6, 2021, that is outstanding against a person under the jurisdiction of the juvenile court, as defined in section 19-1-103; a juvenile; or the person's or juvenile's parent, guardian, or legal custodian. The fee is assessed at the time of sentencing, if sentencing occurs, or upon other final disposition of the case; except that the court may, at sentencing or other final disposition, waive the fee if the court determines, based upon the financial information submitted by the party being represented by the court-appointed counsel, that the person does not have the financial resources to pay the fee. Before the court appoints a public defender based on the application, the court shall advise the defendant or, if applicable, the defendant's parent or legal guardian that the application is signed under oath and under the penalty of perjury. A copy of the application must be sent to the prosecuting attorney for review, and, upon request, the court shall hold a hearing on the issue of the eligibility for appointment of the public defender's office. Processing fees collected pursuant to this subsection (3) are transmitted to the state treasurer, who shall credit the same to the general fund.

(b) As used in this subsection (3), "juvenile" means a person who is under eighteen years old when the crime is committed.

(4) Nothing is this section shall be construed to authorize the public defender to represent or advise any person who is physically outside the state of Colorado and who has not made a court appearance in the pending matter in the state of Colorado.

(5) Nothing in this section may be construed to prevent the public defender, before determining indigency, from providing representation to juveniles in detention hearings.

Source: L. 69: R&RE, p. 255, § 30. C.R.S. 1963: § 39-21-3. L. 81: (2) amended, p. 929, § 3, effective September 1. L. 81: (4) added, p. 924, § 2, effective May 26. L. 88: (1)(a), (1)(b), (2)(a), (2)(b), and (3) amended, p. 665, § 6, effective July 1. L. 90: IP(1) and (3) amended, p. 1038, § 1, effective July 1. L. 92: (2)(a) and (2)(b) amended, p. 2176, § 31, effective June 2; (3) amended, p. 466, § 3, effective July 1. L. 2000: (1)(b), IP(2), and (2)(b) amended, p. 1480, § 5, effective August 2. L. 2004: (3) amended, p. 725, § 1, effective August 4. L. 2013: IP(2) amended, (HB 13-1210), ch. 306, p. 1624, § 4, effective January 1, 2014. L. 2014: (5) added, (HB 14-1032), ch. 247, p. 954, § 6, effective November 1. L. 2021: (2) amended, (SB 21-059), ch. 136, p. 738, § 93, effective October 1; (3) amended, (HB 21-1315), ch. 461, p. 3107, § 4, effective July 6. L. 2026: (3) amended, (HB 26-1232), ch. 98, p. 389, § 7, effective May 4.

Cross references: (1) For appointment of counsel for indigent persons in insanity or incompetency proceedings, see § 16-8-119.

(2) For the legislative declaration in HB 21-1315, see section 1 of chapter 461, Session Laws of Colorado 2021. For the legislative declaration in HB 26-1232, see section 1 of chapter 98, Session Laws of Colorado 2026.

ANNOTATION

Public defender provided for proceedings carrying criminal sanctions. The general assembly, in establishing the public defender's office, looked to the fact of incarceration and provided for court appointed counsel in juvenile delinquency proceedings, in civil commitment and similar proceedings, and in municipal code violation cases, all of which historically were civil in nature but which carry criminal sanctions. Mora v. District Court, 177 Colo. 381, 494 P.2d 596 (1972).

Public defender appointed when requested by defendant or ordered by court. Public defender is only appointed when requested by defendant or ordered by court. Therefore, defendant's right to counsel was not violated when he continued to answer questions when public defender was present and desired to talk with him, but defendant had waived presence of counsel and had not requested counsel. People v. Page, 907 P.2d 624 (Colo. App. 1995).

Defendant who becomes indigent during course of criminal proceedings is entitled to discharge his or her retained counsel and then obtain appointed counsel. People v. Munsey, 232 P.3d 113 (Colo. App. 2009).

Trial court may, within its discretion, decline to appoint alternate defense counsel to investigate claims for the ineffective assistance of counsel in a prior case. People v. Mills, 163 P.3d 1129 (Colo. 2007).

If defendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel. People v. Cardenas, 62 P.3d 621 (Colo. 2002).

Income from members of a defendant's household who contribute monetarily to the household should be excluded from an indigency determination if the income is unavailable to the defendant. People v. Greer, 2022 CO 5, 502 P.3d 1012.

Defendant's ownership of a home in foreclosure and a luxury sport utility vehicle is not in itself sufficient to establish nonindigency. People v. Munsey, 232 P.3d 113 (Colo. App. 2009).

No constitutional right to postconviction counsel exists; however, a limited statutory right exists. The statutory right to postconviction counsel is neither automatic nor unlimited. It is limited to cases where a defendant's Crim. P. 35(c) petition is not wholly unfounded and has arguable merit, as determined by the court and the state public defender's office. Silva v. People, 156 P.3d 1164 (Colo. 2007).

If postconviction counsel is required according to the limited statutory right, that counsel must provide effective assistance as measured by the two-pronged Strickland v. Washington test. Silva v. People, 156 P.3d 1164 (Colo. 2007).

A limited statutory right to counsel exists for a Crim. P. 35 hearing pursuant to this section and § 21-1-104, and the waiver of such right to counsel must be made voluntarily but need not be knowingly and intelligent. People v. Duran, 757 P.2d 1096 (Colo. App. 1988).

There is a limited statutory right to counsel in post-conviction proceedings when the allegations are factually sufficient to warrant a hearing. People v. Hickey, 914 P.2d 377 (Colo. App. 1995).

But defendant is entitled to conflict-free counsel when trial court orders appointment of counsel to assist defendant in motion under Crim. P. 35 based upon allegations of ineffective assistance of counsel in guilty plea. Supreme court concerned that public defender did not file motion to withdraw in Crim. P. 35 case in which defendant alleged as grounds for motion prior ineffective assistance of appointed public defender during prior criminal proceeding. Murphy v. People, 863 P.2d 301 (Colo. 1993).

A limited right to counsel exists under this section and § 21-1-104 for assistance in a hearing on a motion for a new trial under Crim. P. 33. However, the trial court properly denied the defendant's request for assistance and the request for a hearing where defendant's Crim. P. 33 motion failed to allege particularized facts supporting his assertion of ineffective assistance of counsel. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999).

Trial court did not err in failing to appoint counsel to represent defendant because the court properly concluded from the record that defendant was not entitled to relief and, therefore, was not required to hold a hearing on the motion. People v. Fernandez, 53 P.3d 773 (Colo. App. 2002).

No authority for appointment in civil contempt proceeding. There is no statutory authority for appointment of the public defender in civil contempt proceedings. Vela v. District Court, 664 P.2d 243 (Colo. 1983).

The office of the state public defender is not statutorily authorized to enter its appearance in an underlying civil forfeiture matter. People v. Shank, 2018 CO 51, 420 P.3d 240.

No authority for appointment in criminal contempt citations. The public defender's duties are limited by statute and the general assembly clearly did not intend to grant the public defender authority to prosecute criminal contempt citations. Groves v. Dist. Ct. for 17th Jud. Dist., 806 P.2d 947 (Colo. 1991).

Review of pro se appeals. In view of the right of an indigent defendant to have counsel appointed to prosecute an appeal, the supreme court will not consider unintelligible petitions and motions which have no legal significance and which do not meet the requirements of established procedures in appellate practice. In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963).

Information given public defender regarding indigency not confidential. Since the determination of indigency is subject to judicial review, information given the public defender in this regard cannot be considered confidential. People v. Lambert, 40 Colo. App. 84, 572 P.2d 847 (1977).

Indigent defendants are entitled to continued and effective representation by court-appointed counsel in the absence of a demonstrable basis in fact and law to terminate that appointment, and therefore the practice of subpoenaing the accused's attorney as a prosecution witness must be carefully monitored. Williams v. District Court, 700 P.2d 549 (Colo. 1985).

Conviction reversed where defendant's right to counsel was violated when trial court failed to appoint public defender. Despite facts in the record indicating that the defendant might be eligible for court-appointed counsel, the trial court accepted the public defender's denial of indigency without conducting its own review and making findings to support a determination for itself on the issue of indigency. People v. Steinbeck, 186 P.3d 54 (Colo. App. 2007).

Although a trial court's determination regarding indigency is reviewed for abuse of discretion, such determination is subject to careful scrutiny because it involves a fundamental constitutional right. People v. Steinbeck, 186 P.3d 54 (Colo. App. 2007).

A district court has no authority to collect the fee imposed pursuant to subsection (3) after the completion of a deferred sentence and dismissal of the underlying charges. Pineda-Liberato v. People, 2017 CO 95, 403 P.3d 160.

Applied in Brown v. District Court, 189 Colo. 469, 541 P.2d 1248 (1975); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981).