JAMES LEE THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thompson appealed a probation revocation hearing where the trial court refused to appoint counsel despite Thompson's privately retained counsel's illness and unavailability. The appellate court held that Thompson had a constitutional right to counsel at the probation revocation hearing and sentencing because he had not been convicted or admitted guilt, and reversed the revocation.
Thompson had an absolute right to counsel at the probation revocation hearing and sentencing because he had not been convicted of the underlying crime nor admitted the charges. The denial of counsel violated his constitutional rights, rendering the revocation proceedings null and void.
[1] A defendant is entitled to appointed counsel at a probation revocation hearing when the defendant has not been convicted of the crime forming the basis for revocation and…
[2] The right to counsel exists at every stage of a criminal proceeding where substantial rights of the accused may be affected.
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Join FLexlaw to unlock all legal intelligence“the right to counsel existed 'at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.'”
Establishes the foundational principle governing the right to counsel that applies throughout criminal proceedings
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Join FLexlaw to unlock all legal intelligenceThompson was charged with violating his probation. After several continuances related to his privately retained counsel's illness, a hearing was sched…
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PER CURIAM.
Appellant was charged with violation of his probation. After several continuances (the record is unclear as to the number, but at least two were granted based on the illness of appellant’s privately retained counsel), the matter was set down for hearing and sentencing. At the hearing appellant explained that his counsel had been ill; that he had attempted to retain another attorney who did not appear at the hearing but apparently attempted to get a further continuance to which the state would not agree; and finally, appellant requested that counsel be appointed for him. The trial court refused to appoint counsel, pointing out that appellant was already represented by privately retained counsel and the hearing proceeded. Appellant’s probation was revoked. He was found indigent for purposes of appeal. He now complains, through appointed counsel, of deprivation of his constitutional right to counsel and of certain evidentiary rulings of the trial court. Our view of the former makes consideration of the latter unnecessary.
In a case where privately retained counsel failed to appear at a hearing at which defendant’s probation was revoked and he was then sentenced, the United States Supreme Court held that the right to counsel existed “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 889 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). This standard was slightly relaxed as to the revocation of probation aspect in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) resulting in the present rule that while the right to counsel in all probation revocation proceedings is not absolute, such a right will be found to exist where required for fundamental fairness.
Refinement of the federal standard by Florida courts limits the exception to the right to counsel afforded by Gagnon to those cases where the defendant has been convicted of the crime which is relied on as the grounds for revocation of probation or where he has admitted the charges against him. See Van Cleaf v. State, 328 So. 2d 568 (Fla.2d DCA 1976); Woodard v. State, 351 So. 2d 1096 (Fla.3d DCA 1977). The Mempa opinion continues to mandate an absolute right to be represented by counsel at sentencing and this is true even where sentencing is accomplished during or at the termination of a probation revocation hearing. See, e.g., Simmons v. State, 298 So. 2d 206 (Fla.2d DCA 1974).
Appellant, Thompson, had not been convicted of the crime for which revocation of his probation was sought nor did he admit guilt. Accordingly, he was entitled to be represented by counsel at the hearing and sentencing. Proceeding without the presence of counsel constituted a violation of Thompson’s constitutional rights and those proceedings are thereby rendered null and void. We therefore reverse and remand for rehearing of the charges against Thompson at which hearing he is entitled to be represented by counsel.
REVERSED and REMANDED with INSTRUCTIONS.
HERSEY, GLICKSTEIN and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hicks v. State, 452 So. 2d 606 (Fla. 4th DCA 1984)…procedure was utilized and admissions of violation were accepted without advising the probationer of this right. Courts have uniformly held that one is entitled to counsel at a sentencing hearing for violation of probation. E.g., Thompson v. State, 413 So. 2d 1301, 1302 (Fla. 4th DCA 1982); Woodard v. State, 351 So. 2d 1096 (Fla. 3d DCA 1977); Simmons v. State, 298 So. 2d 206 (Fla. 2d DCA 1974). Some years ago this court held in Gargan v. State, 217 So. 2d 578 (Fla. 4th DCA 1969), that a probationer was also…
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Mullins v. State, 438 So. 2d 908 (Fla. 2d DCA 1983)…ppellant’s second contention as to the right to counsel at sentencing in light of our resolution of the first issue. REVERSED and REMANDED for proceedings consistent herewith. BOARDMAN, A.C.J., and DANAHY, J., concur. . But see Thompson v. State, 413 So. 2d 1301 (Fla. 4th DCA 1982) (recognizing in dictum the holding of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), that the “right to counsel in all probation revocation proceedings is not absolute”); Grandin v. State, 421 So. 2d 803…
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Grandin v. State, 421 So. 2d 803 (Fla. 3d DCA 1982)…probation revocation hearing which was denied below; special circumstances appear in this record which required the appointment of counsel at this proceeding as a matter of fundamental fairness, which right was never waived below. Thompson v. State, 413 So. 2d 1301 (Fla. 4th DCA 1982). The record reveals that (a) the defendant Grandin denied violating his probation, (b) the probation revocation hearing was unusually complex with a number of witnesses testifying to various substantive offenses which comprised t…
Authorities Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Mempa v. Rhay, 389 U.S. 128 (U.S. 1967)
- van Cleaf v. State, 328 So. 2d 568 (Fla. 2d DCA 1976)
- Woodard v. State, 351 So. 2d 1096 (Fla. 3d DCA 1977)
- Tilton A. Auenson and Myra S. Auenson v. Gov't Emps. Ins. Co., 298 So. 2d 206 (Fla. 1st DCA 1974)
- Hurgel Leroy Simmons v. State, 298 So. 2d 206 (Fla. 2d DCA 1974)