Introduced Version






SENATE BILL No. 263

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 33-14-1 .

Synopsis: Senior prosecuting attorneys. Provides that: (1) a senior prosecuting attorney may be appointed to serve as a special prosecutor; and (2) a person must have at least eight years of experience as a prosecuting attorney or deputy prosecuting attorney to be a senior prosecuting attorney. Provides that a senior prosecuting attorney may not be appointed as a special prosecutor in certain circumstances.

Effective: July 1, 2002.





Hume




    January 7, 2002, read first time and referred to Committee on Judiciary.







Introduced

Second Regular Session 112th General Assembly (2002)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 263



    A BILL FOR AN ACT to amend the Indiana Code concerning courts and court officers.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 33-14-1-1.1 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1.1. (a) As used in this chapter, "senior prosecuting attorney" means a person who:
        (1) was employed for at least eight (8) years as a prosecuting attorney or deputy prosecuting attorney; and
        (2) files an affidavit requesting designation as a senior prosecuting attorney in the circuit court in a county in which the person served as a prosecuting attorney or deputy prosecuting attorney.
    (b) An affidavit filed under subsection (a) must contain the following:
        (1) The name of the person filing the affidavit.
        (2) The person's attorney number issued by the Indiana supreme court.
        (3) The length of time the person served as a deputy prosecuting attorney or prosecuting attorney.


        (4) The name of any county in which the person served as a deputy prosecuting attorney or prosecuting attorney.
    SECTION 2. IC 33-14-1-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 6. (a) Special prosecutors may be appointed only in accordance with this section.
    (b) A circuit or superior court judge:
        (1) shall appoint a special prosecutor if:
            (A) any person other than the prosecuting attorney or the prosecuting attorney's deputy files a verified petition requesting the appointment of a special prosecutor; and
            (B) the prosecuting attorney agrees that a special prosecutor is needed;
        (2) may appoint a special prosecutor if:
            (A) a person files a verified petition requesting the appointment of a special prosecutor; and
            (B) the court, after:
                (i) notice is given to the prosecuting attorney; and
                (ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard;
            finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecutor has committed a crime;
        (3) may appoint a special prosecutor if:
            (A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and
            (B) the court finds that the appointment is necessary to avoid the appearance of impropriety; and
        (4) may appoint a special prosecutor if:
            (A) an elected public official, who is a defendant in a criminal proceeding, files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing; and
            (B) the court finds that the appointment of a special prosecutor is in the best interests of justice.
    (c) Each person appointed to serve as a special prosecutor:
        (1) must consent to the appointment; and
        (2) must be:
            (A) the prosecuting attorney; or
            (B) a deputy prosecuting attorney; or
            (C) except as provided in subsection (d), a senior prosecuting attorney;

        in a county other than the county in which the person is to serve as special prosecutor.
    (d) A senior prosecuting attorney may be appointed in the county in which the senior prosecuting attorney previously served if:
        (1) at least five (5) years have elapsed from the last date the senior prosecuting attorney was employed as a prosecuting attorney or deputy prosecuting attorney; and
        (2) the court finds that an appointment under this subsection would not
create the appearance of impropriety.
     (e) A person appointed to serve as a special prosecutor has the same powers as the prosecuting attorney of the county. However, the scope of the special prosecutor's duties shall be limited by the appointing judge to include only the investigation or prosecution of a particular case or particular grand jury investigation.
    (e) (f) The court shall establish the length of the special prosecutor's term. If the target of an investigation by the special prosecutor is a public servant (as defined in IC 35-41-1-24 ), the court shall order the special prosecutor to file a report of the investigation with the court at the conclusion of the investigation. The report is a public record.
    (f) (g) If the special prosecutor is not regularly employed as a full-time prosecuting attorney or full-time deputy prosecuting attorney, the compensation for the special prosecutor's services:
        (1) shall be paid to the special prosecutor from the unappropriated funds of the appointing county; and
        (2) shall not exceed a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit, and travel expenses, and reasonable accommodation expenses actually incurred.
    (g) (h) If the special prosecutor is regularly employed as a full-time prosecuting attorney or deputy prosecuting attorney, the compensation for the special prosecutor's services:
        (1) shall be paid out of the appointing county's unappropriated funds to the treasurer of the county in which the special prosecutor regularly serves; and
        (2) must include a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit, travel expenses, and reasonable accommodation expenses actually incurred.
    SECTION 3. IC 33-14-1-6.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 6.5. A senior prosecuting attorney may not be

appointed under section 6 of this chapter if the senior prosecuting attorney:
        (1) is not available for the minimum period of commitment for service as a special prosecutor; or
        (2) has had a disciplinary sanction imposed by the Indiana supreme court disciplinary commission or a similar body in another state.