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Rule 8. Appointment of counsel.

 

(a) Right tocounsel.  Adefendant charged with a public offense has the right to self-representation,and if indigent, has the right to court-appointed counsel if the defendantfaces any possibility of the deprivation of liberty.

 

(b) Capital casequalifications.  Inall cases in which counsel is appointed to represent an indigent defendant whois charged with an offense for which the punishment may be death, the courtshall appoint two or more attorneys to represent such defendant and shall makea finding on the record based on the requirements set forth below thatappointed counsel is competent in the trial of capital cases.In making its determination, the court shall ensure that the experienceof counsel who are under consideration for appointment have met the followingminimum requirements:

 

(b)(1)at least one of the appointed attorneys must have tried to verdict six felonycases within the past four years or twenty-five felony cases total;

 

(b)(2) at least one of the appointed attorneys must haveappeared as counsel or co-counsel in a capital or a felony homicide case whichwas tried to a jury and which went to finalverdict;

 

(b)(3)at least one of the appointed attorneys must have completed or taught withinthe past five years an approved continuing legal education course or courses atleast eight hours of which deal, in substantial part, with the trial of deathpenalty cases; and

 

(b)(4) the experience of one of the appointed attorneys musttotal not less than five years in the active practice of law.

 

(c) Capital caseappointment considerations.  Inmaking its selection of attorneys for a

appointment in a capital case, the court should alsoconsider at least the following factors:

 

(c)(1) whether one or more of the attorneys underconsideration have previously appeared as counsel or co-counsel in a capitalcase;

 

(c)(2)the extent to which the attorneys under consideration have sufficient time andsupport and can dedicate those resources to the representation of the defendantin the capital case now pending before the court with undivided loyalty to thedefendant;

 

(c)(3) the extent to which the attorneys under considerationhave engaged in the active practice of criminal law in the past five years;

 

(c)(4) the diligence, competency, the total workload, andability of the attorneys being considered; and

 

(c)(5)any other factor which may be relevant to a determination that counsel to beappointed will fairly, efficiently and effectively provide representation tothe defendant.

 

(d) Capital caseappeals.  In all cases where an indigentdefendant is sentenced to death, the court shallappoint one or more attorneys to represent such defendant on appeal and shallmake a finding that counsel is competent in the appeal of capital cases. To be found competent to represent on appeal personssentenced to death, the combined experience of the appointed attorneys mustmeet the following requirements:

 

(d)(1) at least one attorney must have served as counsel in atleast three felony appeals; and

 

(d)(2) at least one attorney must have attended and completedwithin the past five years an approved continuing legal education course whichdeals, in substantial part, with the trial or appeal of death penalty cases.

 

(e) Post-convictioncases.  In all cases in which counsel isappointed to represent an indigent petitioner pursuant to Utah Code ?78B-9-202(2)(a), the court shall appoint one or more attorneys to representsuch petitioner at post-conviction trial and on post-conviction appeal andshall make a finding that counsel is qualified to represent persons sentencedto death in post-conviction cases. To be found qualified,the combined experience of the appointed attorneys must meet the followingrequirements:

 

(e)(1) at least one of the appointed attorneys must haveserved as counsel in at least three felony or post-conviction appeals;

 

(e)(2)at least one of the appointed attorneys must have appeared as counsel orco-counsel in a post-conviction case at the evidentiary hearing, on appeal, orotherwise demonstrated proficiency in the area of post-conviction litigation;

 

(e)(3)at least one of the appointed attorneys must have attended and completed ortaught within the past five years an approved continuing legal education coursewhich dealt, in substantial part, with the trial and appeal of death penaltycases or with the prosecution or defense of post-conviction proceedings indeath penalty cases;

 

(e)(4)at least one of the appointed attorneys must have tried to judgment or verdictthree civil jury or felony cases within the past four years or ten cases total;and

 

(e)(5) the experience of at least one of the appointedattorneys must total not less than five years in the active practice of law.

 

(f) Appointingfrom appellate roster.  Whenappointing counsel for an indigent defendant on appeal from a court of record,the court must select an attorney from the appellate roster maintained by theBoard of Appellate Judges under rule 11-401 of the Utah Rules of Judicial Administration,subject to any exemptions established by that rule.

 

(g) Noncompliance.  Merenoncompliance with this rule or failure to follow the guidelines set forth inthis rule shall not of itself be grounds for establishing that appointedcounsel ineffectively represented the defendant at trial or on appeal.

 

(h)(1)Cost and attorneys' fees for appointed counsel shall be paidas described in Chapter 22 of Title 78B.

 

(h)(2)Costs and attorneys fees forpost-conviction counsel shall be paid pursuant to Utah Code ? 78B-9-202(2)(a).

 

Effective December 19,2018