Motion to Proceed In Forma Pauperis
And for Appointment of Counsel
REVISED OCTOBER 2014
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A.The Motion to Proceed In Forma Pauperis.
Usually when a new legal action is filed in a Kentucky Circuit Court or in the United States District Court, a filing fee must be paid to the Clerk before the action will be filed. The Motion to Proceed In Forma Pauperis is a request to the Court that the person filing the action, the litigant, be allowed to do so without paying the filing fee due to the hardship it would cause that person to come up with the money to pay the fee. There is no fee for filing an RCr 11.42 motion, however, even in that case it is advisable to make a motion to proceed in forma pauperis because other costs, such as copying costs or fees, may be waived by the Court once it has been determined by the Court that the person cannot afford to pay for them. A determination by the Court that the litigant is indigent is also necessary before the Court will appoint counsel to represent the litigant.
B.The Affidavit of Indigency.
The Affidavit of Indigency is a written statement by the litigant, under oath or with the understanding that any misrepresentations could result in a prosecution for perjury, stating that the litigant does not have enough money or other assets to pay for the costs of the litigation. The Affidavit of Indigency normally includes financial information about the litigant from which the Court can determine that the litigant, in fact, cannot afford to litigate the legal action unless some, or all, of the costs are waived by the Court. An Affidavit of Indigency should always be filed with and/or attached to a Motion to Proceed In Forma Pauperis.
C.The Motion for Appointment of Counsel.
Many non-lawyer litigants are perfectly capable of litigating their own post-conviction actions and do not really need the assistance of an attorney. Most of the time a lawyer will be of great assistance to the litigant, however, because of his/her familiarity with court procedures, court rules and statutes, and because of his/her greater access to information and resources necessary to successfully litigate a legal action. Therefore, it is advisable to always request that an attorney be appointed to assist with the litigation.
An attorney will not be appointed unless the assistance of an attorney is requested by the litigant, and the litigant has been found to be indigent. The Motion for Appointment of Counsel can be combined with the Motion to Proceed In Forma Pauperis, and, unless the litigant has already been determined indigent by the same Court in the same legal action, a Motion to Proceed In Forma Pauperis should accompany the Motion for Appointment of Counsel. The two motions are combined in the example of a Motion for Appointment of counsel contained in this packet.
The United States Supreme Court has held that the assistance of counsel during post-conviction proceedings is not required by the United States Constitution. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). Nor does the Commonwealth of Kentucky require that an attorney be appointed to represent an indigent litigant unless, and until, an evidentiary hearing is ordered to be held on an RCr11.42 motion. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001). However, the law does not prevent a judge from appointing counsel to represent a litigant as soon as an RCr 11.42 motion or other post-conviction action is filed. Therefore, it is recommended that a motion requesting the Appointment of Counsel be filed as early as possible. RCr 11.42(5) requires the Court to appoint counsel if an evidentiary hearing is held on a post-conviction motion filed pursuant to RCr 11.42 whenever (a) the litigant is financially unable to employ counsel, and (b) the litigant makes a specific written request for the appointment of counsel to represent the litigant in the hearing. If those two conditions are met, the appointment of counsel for the evidentiary hearing is mandatory. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001).
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COMMONWEALTH OF KENTUCKY
______CIRCUIT COURT
INDICTMENT NO. ______
______MOVANT
vs. MOTION TO PROCEED IN FORMA PAUPERIS
AND FOR APPOINTMENT OF COUNSEL
COMMONWEALTH OF KENTUCKY RESPONDENT
* * * * * *
Comes the Movant, ______, without counsel, and moves this Court pursuant to KRS 453.190, KRS 31.110, and all other applicable law, for leave to proceed in the above styled case in forma pauperis and for the appointment of counsel. As grounds therefore, Movant states as follows:
1.The Movant is presently incarcerated at the ______
______and is indigent according to the provisions of KRS 31.120. In support thereof, Movant attaches hereto and incorporates herein by reference his/her affidavit of indigency.
2.Movant does not have adequate funds to prosecute a post-conviction action on his/her own. Movant asks the Court to appoint counsel to assist Movant with his/her post-conviction motion, and to allow Movant to proceed in forma pauperis.
(sign)______
(Print name and address in space below)
N O T I C E
Movant is incarcerated and asks the Court to rule on this motion at the Court’s earliest convenience.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Motion to Proceed In Forma Pauperis and for Appointment of Counsel was served by mailing a true and correct copy via first-class U.S. mail, postage prepaid, to the prosecuting attorney, ______, at the following address, ______.
This ______day of ______, 20___.
______
MOVANT
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