Getting a Public Defender in a Montana PFMA Case

If you are charged with partner or family member assault (PFMA) in Montana and cannot afford to hire a lawyer, you can ask the court for a public defender at your initial appearance. The court orders the Office of State Public Defender to assign counsel, the office assigns a lawyer right away, and your financial eligibility is determined afterward. This page explains the rules and offers a neutral comparison with hiring a lawyer. It is part of our Montana Domestic Violence Guide.

Your Right to Counsel at the First Appearance

During the initial appearance, every defendant must be informed of the right to have counsel and asked if the aid of counsel is desired (MCA § 46-8-101(1)). If you want assigned counsel because you cannot afford a private lawyer, and the offense is a felony or a misdemeanor where incarceration is a sentencing option, the court "shall order the office of state public defender" to assign counsel without unnecessary delay, pending a determination of eligibility (MCA § 46-8-101(2)).

PFMA qualifies because its penalties include jail at each level (MCA § 45-5-206(3)). The statute does contain a general exception for misdemeanors: a court may order at the initial appearance that incarceration will not be used as a sentencing option, in which case a public defender is not assigned (MCA § 46-8-101(3)). More on that hearing is in the initial appearance.

Who Qualifies

An applicant is indigent under MCA § 47-1-111(3) if either of these is true:

• Income test. The applicant's gross household income is at or less than 133% of the poverty level in the current federal poverty guidelines.
• Hardship test. The disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the household.

A determination may not be denied solely because you were able to post bail or solely because you are employed (MCA § 47-1-111(4)). It can also be modified if more information becomes available or your finances change (MCA § 47-1-111(5)).

One feature of domestic cases deserves attention. The tests look at household income and assets, and the alleged victim may be a member of your household. How the office treats that situation is not spelled out in the statute, so raise it on your application.

How the Application Works

When a court orders the office to assign counsel, "the office shall immediately assign counsel prior to a determination" of eligibility (MCA § 47-1-111(1)(a)). You then complete an application, a detailed financial statement, and an affidavit on the office's form. The affidavit is signed under penalty of perjury, and the court must advise you that a false statement can be prosecuted (MCA § 47-1-111(2)).

The information you provide is not admissible in a civil or criminal action, except for impeachment or in a later prosecution for perjury or false swearing (MCA § 47-1-111(2)(c)). The office may move to rescind the appointment if you do not fill out the application or provide requested financial documents (MCA § 47-1-111(2)(d)).

If the Office Decides You Do Not Qualify

If you are later found ineligible, the office must file a motion to rescind the appointment. You may request a hearing, and if you do, the court must hold one. The only issue at that hearing is financial eligibility, and you may not be compelled to testify (MCA § 47-1-111(1)(b), (c)).

You keep your assigned lawyer, with the full benefit of public defender services, until the court grants the motion (MCA § 47-1-111(1)(e)). That gives you time to hire counsel if the appointment ends.

What It Can Cost

As part of a sentence, the court decides whether a convicted defendant should pay the costs of assigned counsel. The amounts are set by statute: $250 if the defendant pleads guilty before trial to one or more misdemeanor charges and no felony charges, $800 for a pretrial guilty plea to one or more felony charges, and the costs the office actually incurred if the case goes to trial (MCA § 46-8-113(1)).

The court may not impose those costs unless the defendant is or will be able to pay, and it may find the defendant able to pay only part. A defendant can later petition for remission if payment would cause manifest hardship (MCA § 46-8-113(4), (5)). Other court-ordered amounts are covered in restitution and court costs.

Public Defender or Private Lawyer

Public defenders are licensed attorneys who represent people in criminal cases in Montana courts. The choice between assigned and hired counsel is a personal one, and for a person who qualifies, assigned counsel is a legitimate option. The differences that the statutes themselves establish are these:

The scope row matters in domestic cases, because a PFMA charge can arrive with a civil order of protection, a parenting dispute, or a divorce. A public defender's assignment does not extend to those. A&M Law defends PFMA charges and also practices family law, and our page on one lawyer for criminal and family cases explains when that overlap matters.

For a fuller comparison, see public defender vs. private lawyer, what a PFMA lawyer costs, and whether you need a lawyer for PFMA. If you start with one kind of lawyer and want to switch, read changing lawyers mid-case.

This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.