Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors (Waiver of Counsel)

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Is a waiver of counsel required in Class 3 misdemeanor cases in which a person is subject to a fine only?

No. A waiver is not required because the person is not entitled to have counsel appointed.

Is a waiver of retained counsel required in such cases?

No. If a defendant does not have a right to appointed counsel, the court need not obtain a waiver of retained counsel.

A person has the right to retain and appear through counsel, however, if he or she wishes to do so. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) (observing that a criminal defendant has the “right to spend his own money to obtain the advice and assistance of . . . counsel”) (citation omitted). A court may not unreasonably interfere with that right. For example, if a person wants to retain counsel, a court may not require the person to proceed without giving the person a reasonable opportunity to do so. See generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(c) (3d ed. 2007).

Public Officials - Courts and Judicial Administration Roles
Topics - Courts and Judicial Administration