ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 18, 2003

STATE OF ARKANSAS

Appellant

v.

DEBBIE SHERWIN-HAGAN

Appellee

CR 03-249

PRO SE MOTION FOR APPOINTMENT OF COUNSEL AND MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2002-197, HON. WILLARD PROCTOR, JR., JUDGE]

REMANDED

Per Curiam

Debbie Sherwin-Hagan was charged with six counts of violating the fiduciary duties of licensees pursuant to Ark. Code Ann. §23-64-223 (Repl. 2001), based on allegations of diversion of insurance premiums. After a jury trial at which Sherwin-Hagan was represented by retained counsel, she was found not guilty of two counts, and a mistrial was declared with respect to the other four counts.

The State lodged an appeal from the judgment, and appellee Sherwin-Hagan now asks that counsel be appointed to represent her on the ground that her retained attorney was relieved by the trial court and she is without funds to hire new counsel. She also asks that the time to file her brief be extended to after this court has ruled on the motion for counsel.

Appellee has appended to the motion for appointment of counsel an affidavit of indigency in accordance with Ark. Sup. Ct. R. 6-6. In the affidavit, appellee states that she is the owner of certain real and personal property and part-owner of a business. She further states that there are liens against both the real and personal property and that the business engendered no profits in 2003.

The indigent appellee in a State's appeal is entitled to appointment of counsel, but indigency must also be established before this court will appoint an attorney. The affidavit of indigency attached to the motion filed by the appellee here is not dispositive of the issue of her indigency because it cannot be determined from it what assets appellee has which could be used to retain counsel. The determination of indigency in appellee's case must be made by a fact finder which requires remanding the matter to circuit court for an evidentiary hearing.

The burden of establishing indigency is on the person claiming indigent status. In considering whether a person is indigent, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the movant for support; (6) able-bodiedness and the level of education; and (7) the likely fee of retained counsel for the appeal. See Hill, 304 Ark. 348, 802 S.W.2d 144 (1991). See also Ark. Sup. Ct. R. 6-6. Where the person claiming indigent status has an interest in a business, whether the business is subject to sale and the potential proceeds likely to be garnered from the sale must also be considered.

The lower court is directed to enter Findings of Fact following the evidentiary hearing, which should be held within sixty days of the date of this opinion, and submit the Findings with a transcript of the hearing within ninety days of the date of this opinion. The court is further directed to enter its Conclusion of Law on the issue of whether appellee is indigent. The briefing schedule in this court will be adjusted when the Findings and Conclusions are returned.

Remanded.

Thornton, J., not participating.