Arizona

Criminal Procedure

Criminal Procedure

Rule 31.5 – Appointment of Counsel on Appeal; Waiver of the Right to Appellate Counsel

(a) Determination that the Defendant Is Indigent.

(1)If Indigent in Superior Court. A defendant who was indigent when sentenced may proceed on appeal as indigent without further authorization, unless after a notice of appeal is filed, the superior court finds that the defendant is financially able to employ counsel and pay for a certified copy of the record on appeal, including a certified transcript.
(2)If Not Indigent in Superior Court. A defendant who was not indigent when sentenced may proceed as indigent on appeal by filing in the superior court a request to proceed as indigent, together with a completed sworn questionnaire required under Rule 6.4(a). The superior court clerk must immediately provide a copy of the defendant’s request and questionnaire to the State. The superior court may require the defendant to appear for an inquiry into his or her ability to pay. The court must promptly grant or deny the defendant’s request.
(3)Definition of “Indigent.” The term “indigent” is defined in Rule 6.1(b).
(b) Contribution by the Defendant. The superior court may order an indigent defendant to contribute to the costs of appeal and the services of counsel in the manner provided in Rule 6.4(c).
(c) Motion in the Appellate Court. If the superior court finds that a defendant is not entitled to proceed as indigent, the defendant may file a motion in the appellate court for permission to proceed as indigent, together with a copy of the sworn questionnaire required by (a)(2). The appellate court, or a single judge of that court, must promptly rule on the motion.
(d) Notice of an Order to Proceed as Indigent. The clerk of the court that enters an order allowing a defendant to proceed as indigent on appeal must send a copy of that order to:

(1) the superior court clerk or the appellate clerk, as the case may be;
(2) the parties; and
(3) the appropriate certified reporters or, if the record was made by electronic or other means, the court’s designated transcript coordinator.
(e) Appointment of Counsel. If a court allows a defendant’s appointed attorney to withdraw, the superior court or the appellate court must appoint new counsel if the defendant is legally entitled to counsel on appeal.
(f) Waiver of Right to Counsel.

(1)Filing Deadline. A defendant may waive the right to appellate counsel by filing a written waiver no later than 30 days after filing a notice of appeal.
(2)Where to File. If the waiver is filed before or when the defendant files a notice of appeal, the waiver must be filed with the superior court clerk. If the waiver is filed after filing a notice of appeal, the waiver must be filed with the superior court clerk and the appellate clerk.
(3)Superior Court Determination. If the superior court determines that the defendant’s waiver of the right to appellate counsel is made knowingly, intelligently, and voluntarily, the defendant will be allowed to represent himself or herself on appeal.
(4)Advisory Counsel. The superior court or the appellate court may appoint advisory counsel for a self-represented defendant during any stage of the appellate proceedings. Advisory counsel must be given notice of all matters for which the defendant is entitled to notice.
(5)Withdrawal of Waiver. In the interest of justice, the appellate court may grant a defendant’s written request to withdraw a waiver of the right to appellate counsel. The defendant is not entitled to repeat any proceeding previously held or waived merely because counsel is later appointed or retained.

Ariz. R. Crim. P. 31.5

Added by August 31, 2017, effective January 1, 2018.

HISTORICAL AND STATUTORY NOTES

Former Rule 31.5, relating to Appointment of counsel for appeal, waiver to right to appellate counsel, was abrogated effective January 1, 2018.