PETER JOHN BARAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation where trial judge failed to consider that appellant's failure to pay public defender lien resulted from indigency rather than willful violation.
A probation revocation based on failure to pay a public defender lien cannot stand when the evidence shows the probationer was indigent and unable to pay.
[1] A probation revocation based on failure to pay a public defender lien must account for the probationer's indigency and inability to pay, and cannot be upheld on grounds o…
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Join FLexlaw to unlock all legal intelligenceAppellant Baran was on probation and failed to pay a public defender lien; the trial judge revoked his probation without considering that Baran was in…
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DAUKSCH, Chief Judge.
In this appeal from an order revoking appellant’s probation it is apparent from the record that the trial judge failed to take into consideration the fact that the appellant failed to pay his public defender lien only because he was indigent and unable to make the payment. Although appellant’s defense was that he thought he had paid more than the amount shown in the public defender’s records, the fact remains that the evidence clearly shows appellant to be indigent. Therefore, we must reverse the order revoking appellant’s probation and remand this matter to the trial court with directions to discharge appellant because his probationary term has expired. Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977).
We note with disapproval that the lawyer who represented appellant at the probation violation hearing was from the same lawyers’ office which provided the evidence to convict appellant. This is a violation of Disciplinary Rule 5-102(B) of the Florida Bar Code of Professional Responsibility. See also Fla. Bar Code Prof. Resp., E.C. 5-1. However, we hasten to add that the record reflects defense counsel did as well as any lawyer could have done in defending his client and the conflict of interest did not obviously reduce the zealous defense of the accused. This is good example of the necessity of avoiding even the appearance of conflict or misconduct.
REVERSED AND REMANDED WITH DIRECTIONS.
CROSS and UPCHURCH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Gurganus v. State, 391 So. 2d 806 (Fla. 5th DCA 1980)…elligent and voluntary waiver, properly made and before the court. In fact, there is a good possibility the appellant had a valid legal defense to the first allegation of violation. Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980); Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977). This defense was from the testimony of the probation supervisor who said the appellant failed to make some required payments because she was out of work. The court lacked…
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Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983)…on, costs of supervision or subsistence payments, as well as one untruthful signout. Appellant correctly notes that revocation for financial violations requires some showing that the probationer had' the ability to make the payments. Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977). The only fact adduced at the hearing was that the appellant had failed to make payments. There was no demonstration of his ability to do so. Revocation based on the grounds…
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Kirkland v. State, 617 So. 2d 781 (Fla. 4th DCA 1993)…gous situation, representation of a defendant against whom another public defender testified as an adverse witness. The situation is replete with the appearance of conflict. See State v. Kruger, 615 So. 2d 757 (Fla. 4th DCA 1993) and Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980). The issue in the instant case was a factual one and turned on the credibility of appellant and the public defender who represented him initially. We agree with appellant, based on Kruger, that he was entitled to representation b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977)