29 Del. C. Pt. IV, Ch. 46
§ 4601 Office of Defense Services.
There is created the Office of Defense Services, comprised of 3 branches: Central Administration, the Public Defender’s Office and the Office of Conflicts Counsel.
§ 4602 Appointment; representation of defendants.
(a) The Office of Defense Services shall be headed by the Chief Defender. The Chief Defender shall be a qualified attorney licensed to practice in this State selected by the Governor. The Office of Defense Services shall represent, without charge, each indigent person who is under arrest or charged with a crime, if:
(1) The defendant requests it; or
(2) The court, on its own motion or otherwise, so orders and the defendant does not affirmatively reject of record the opportunity to be so represented.
(b) Before arraignment the determination of indigency may be made by the Office of Defense Services. At or after arraignment the determination shall be made by the court.
(c) Any person under the age of 18 arrested or charged with a crime or act of delinquency shall be automatically eligible for representation by the Office of Defense Services.
§ 4603 Term of office; compensation; assistants.
(a) For appointments made after July 1, 2015, the Chief Defender shall serve for a term of 8 years from the date of appointment.
(b) The Chief Defender may appoint as many assistant attorneys, clerks, investigators, stenographers and other employees as the Chief Defender considers necessary to enable the Office of Defense Services to carry out the responsibilities of the office. Assistant Public Defenders and attorneys contracting with the Office of Conflicts Counsel must be licensed to practice in this State.
(c) The compensation of persons appointed under subsection (b) of this section shall be fixed by the Chief Defender.
(d) Salaried attorneys employed by the Office of Defense Services are prohibited from engaging in the practice of law outside the duties of the Office of Defense Services. Salaried attorneys who have already established private practices as of January 1, 2015, are exempt from the prohibition until May 28, 2025. After May 28, 2025, all salaried attorneys employed by the Office of Defense Services are prohibited from engaging in private law practice.
§ 4604 Representation of indigent persons.
When representing an indigent person, the Office of Defense Services shall:
(1) Counsel and defend the indigent person, whether held in custody without commitment or charged with a criminal offense, at every stage of the proceedings following arrest; and
(2) Prosecute any appeals or other remedies before or after conviction that the Chief Defender considers to be in the interest of justice.
§ 4605 Appointment of additional counsel.
For cause, the court may, on its own motion or upon the application of the Office of Defense Services or the indigent person, appoint the Office of Conflicts Counsel, or other qualified counsel, to represent the indigent person at any stage of the proceedings or on appeal. The attorneys contracting with the Office of Conflicts Counsel shall be awarded reasonable compensation and reimbursement for expenses necessarily incurred, to be fixed by the Chief Defender and paid through the Office of Conflicts Counsel.
§ 4606 Annual reports.
The Office of Defense Services shall make an annual report to the Governor and the General Assembly covering all cases handled by the Office of Defense Services during the preceding year.
§ 4607 Administrative fee assessment.
(a) Each court of this State shall assess an administrative fee in the amount of $100 against any defendant on whose behalf an appearance is made by the Office of Defense Services, or any other attorney who has been appointed by a court to represent the defendant in a criminal proceeding. This fee shall be payable even though the criminal proceedings do not result in conviction but are instead terminated by a guilty plea, nolle prosequi or order of the court.
(b) Upon assessment of any administrative fee under this section, each defendant shall be directed to pay such assessment forthwith to the clerk of the court in which an entry of appearance by the Office of Defense Services or any other attorney who has been appointed by a court was entered.
(c) A defendant’s present inability, failure or refusal to pay an assessment made under this section shall not operate to disqualify a defendant from legal representation.
(d) If a defendant is unable or fails to pay the administrative fee pursuant to this section, the court shall order the defendant to report to the Commissioner of the Department of Correction or a person designated by the Commissioner, for work for a number and schedule of hours necessary to discharge the fine, pursuant to § 4105(b) of Title 11.
(e) In the event that any portion of an administrative fee assessed under this section shall remain unpaid at the time of sentencing, the sentencing judge shall make payment of the administrative fee an express condition of any sentence imposed.
(f) All moneys received in satisfaction of assessments under this section shall revert to the General Fund and the clerk of each court shall regularly remit all moneys received to the State Treasurer.
(g) On or before the first day of November of each year, the courts of this State in which assessments are regularly made under this section shall provide the State Auditor with a written report detailing the dollar value of assessments made in the previous fiscal year, the amount collected in the previous fiscal year as well as the balance of unpaid assessments at the open and close of the previous fiscal year.
§ 4608 Short title.
This chapter may be cited as the “Office of Defense Services Act.”