(1) Felony Cases. An indigent defendant facing a felony charge in state court is entitled to have counsel appointedprovided at public expense to represent the defendant at
every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.
(2) Non-Felony Cases. An indigent defendant facing a non-felony charge in state court
is entitled to have counsel appointedprovided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right or the magistrate determines that sentence upon conviction will not include imprisonment.
(3) Non-Indigent Defendants. The court mustmay appoint counsel to represent a defendant at the defendant’s expense if the defendant is unable to obtain counsel and is not indigent.
(b) Ex Parte Application for Financial Assistance. An indigent defendant may apply ex parte for financial assistance to obtain investigative, expert, or other services necessary for an adequate defense. The application, the record of any proceeding, and the order on the application must be kept under seal, unless the court orders otherwise.
(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and
(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.
(2) Court’s Responsibilities in Cases of Joint Representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless
there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel.
Rule 44 was amended, effective September 1, 1983; March 1, 1990; March 1, 2001; March 1, 2004; March 1, 2006; June 1, 2006.
Rule 44 is a modification of Fed.R.Crim.P. 44 governing the appointment of counsel. In non-felony cases, this rule provides for appointment of counsel for an indigent defendant will be provided when the defendant faces a term of imprisonment, including a suspended sentence of imprisonment or a deferred imposition of sentence, unless imprisonment is
waived. In contrast, Fed.R.Crim.P. 44 requires appointment of counsel for all indigent defendants.
Rule 44 was amended, effective June 1, 2006, to remove references to appointment
of counsel for indigents. Under N.D.C.C. § 54-61-01(1), courts are responsible for determining whether defendants qualify for indigent defense services. Effective January 1, 2006, however, courts ceased appointing counsel for indigents because the North Dakota
Commission on Legal Counsel for Indigents became responsible for the defense of indigents.
Rule 44 was amended, effective September 1, 1983, to add the words “in the courts
of this state” in each of the first two sentences to make it clear that appointment of counsel
for indigent defendants will be provided at public expense is required only in proceedings
through appeal in the courts of North Dakota.
Rule 44 was amended, effective March 1, 1990. The amendments are technical in
nature and no substantive change is intended.
Rule 44 was amended, effective March 1, 2001, to authorize an application for
financial assistance ex parte. Language allowing application to the court for investigative, expert and related services was deleted, effective June 1, 2006. On January 1, 2006, the
North Dakota Commission on Legal Counsel for Indigents became responsible for providing these services to indigent defendants. Authorization for state funded mental health services
for certain defendants is governed by N.D.C.C. § 12.1-04.1-02.
Rule 44 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the
rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (c)(b) was added, effective March 1, 2006, to explain the court’s duties
in situations involving joint representation of multiple defendants. A court inquiry is necessary in these cases because serious conflicts can develop when a single attorney represents defendants who may have different interests.
SOURCES: Joint Procedure Committee Minutes of April 27-28, 2006, pages___; January 26, 2006, pages 7-9; January 27-28, 2005, pages 36-37; September 18-19, 2003,
pages 27-31; January 27-28, 2000, pages 3-4; September 23-24, 1999, pages 3-6; April 20, 1989, page 4; December 3, 1987, page 15; September 30-October 1, 1982, page 22; October 15-16, 1981, page 15; Joint Procedure Committee Minutes of April 24-26, 1973, page 14;
December 11-15, 1972, pages 44-48; May 6-8, 1971, pages 1-11; November 20-21, 1969, pages 3-8; July 10-11, 1969, pages 16-22; Fed.R.Crim.P. 44.
CROSS REFERENCE: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 8 (Joinder of Offenses or Defendants); N.D.R.Crim.P. 13 (Joint Trial of Separate Cases); N.D.R.Crim.P. 43 (Defendant’s Presence).