Nebraska § 29-3902 - Indigent defendant; right to counsel.

§ 29-3902. Indigent defendant; right to counsel.

At a felony defendant's first appearance before a court, the court shall advise him or her of the right to court-appointed counsel if he or she is indigent.

If he or she asserts indigency, the court shall make a reasonable inquiry to determine his or her financial condition and may require him or her to execute an affidavit of indigency. If the court determines him or her to be indigent, it shall formally appoint the public defender to represent him or her in all proceedings before the court and shall make a notation of such appointment and appearances of the public defender upon the felony complaint. The same procedure shall be followed by the court in misdemeanor cases punishable by imprisonment.

The requirement of this section is that before counsel is provided at public expense for a criminal defendant, there must be a reasonable inquiry to determine the defendant's financial condition. State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988).

Section 29-1804.04 defines indigency and along with this section requires the court to make a reasonable inquiry as to a defendant's financial condition. To determine indigency the court must consider the seriousness of the offense; the defendant's income; the availability of other resources, including real and personal property, bank accounts, Social Security, and unemployment or other benefits; normal living expenses; outstanding debts; and the number and age of dependents. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).

Failure to inquire into a defendant's indigency for appointment of counsel at the defendant's first court appearance does not result in prejudicial error if the defendant is not ultimately sentenced to time in jail. State v. Golden, 8 Neb. App. 601, 599 N.W.2d 224 (1999).