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Right to Counsel – Inherent Judicial Authority to Appoint – Indigency Determination – Use of Federal Poverty Guidelines

State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913

Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.

Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing, but made an error (mathematical in nature) in applying them. As a result, the trial court’s finding that defendant’s income exceeded federal poverty guidelines is clearly erroneous — in fact, his income is well below guidelines — and the matter is remanded for a hearing at which the guidelines will be properly applied, ¶¶8-14:

¶14 We remand so that the trial court may (1) hold a hearing at which it can inquire further into Nieves-Gonzalez’s financial and martial status if necessary and (2) reapply the federal poverty guidelines properly. We note that, even including spousal income, Nieves-Gonzalez’s household income is still well below the federal guidelines.4 Unless, upon further inquiry by the trial court, evidence comes to light showing that Nieves-Gonzalez has additional resources available, it would be difficult to conclude that he is not entitled to court-appointed counsel.

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