KENNETH LEE GRIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Lee Grier appealed the summary denial of his motion for post-conviction relief claiming ineffective assistance of counsel at a probation revocation hearing. The court reversed and remanded, finding that a factual hearing was required because the newly-appointed counsel was assigned less than 24 hours before the hearing.
The court held that because Grier denied the alleged probation violations, competent counsel was constitutionally required at the revocation hearing. The record did not conclusively show he received reasonably effective counsel, and the case must be remanded for a full hearing on the ineffective assistance claim.
[1] A probationer has a right to counsel at a revocation hearing if the probationer denies the alleged violations.
[2] A probationer has a right to counsel at a revocation hearing when substantial complicated reasons require counsel.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A probationer has a right to counsel at a revocation hearing if the probationer denies the violations alleged in the affidavit or if other substantial complicated reasons require counsel.”
Establishes the constitutional standard for right to counsel in probation revocation proceedings
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Join FLexlaw to unlock all legal intelligenceGrier pled guilty to grand theft in January 1979 and received a sentence with probation conditions. In August 1981, his probation was revoked based on…
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NELSON, WILLIAM J., Associate Judge.
This is an appeal from a summary denial of appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he claims ineffective assistance of counsel. We reverse.
On January 19, 1979, appellant pled guilty to grand theft. The trial court placed him on three years probation with the condition that he spend one year in prison. On November 12, 1980, appellant entered a plea of nolo contendere to an unrelated charge of grand theft. The court placed appellant on three years probation for this offense.
On August 27, 1981, appellant was charged with violating three conditions of his probation: 1) failure to submit monthly reports, 2) failure to pay supervision costs, and 3) failure to live and remain at liberty without violating any law in that he committed burglary of an automobile and a dwelling. The court revoked appellant’s probation and sentenced him to three years imprisonment for each charge of grand theft.
At the revocation hearing, defense counsel stated appellant’s privately retained attorney had recently withdrawn and the court had appointed the public defender to represent appellant. Defense counsel stated that he had been assigned to the case the morning of the hearing and requested a one week continuance. The court denied the request.
A probationer has a right to counsel at a revocation hearing if the probationer denies the violations alleged in the affidavit or if other substantial complicated reasons require counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Van Cleaf v. State, 328 So. 2d 568 (Fla. 2d DCA 1976); see also Watts v. State, 409 So. 2d 222 (Fla. 2d DCA 1982). In the instant case, appellant denied committing the alleged burglaries and, therefore, competent counsel was required at the hearing.
In a motion for post-conviction relief, an aggrieved defendant need only show that the court-appointed counsel was not “reasonably effective.” Chambers v. State, 337 So. 2d 845 (Fla. 2d DCA 1976). The record in the instant case does not conclusively show that appellant received reasonably effective counsel. The fact that de fense counsel participated in the case for less than twenty-four hours tends to negate the requirement of competent representation. Chambers v. State, supra.
We, therefore, REVERSE the order and REMAND the cause for a hearing on the issue of whether appellant was denied his right to competent counsel.
GRIMES, A.C.J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Esker E. Smith v. State, 427 So. 2d 773 (Fla. 2d DCA 1983)…supra; Gargan v. State, supra; Gleichauf v. State, 334 So. 2d 174 (Fla. 4th DCA 1976). We do not believe the right to counsel should be contingent upon appellant denying the charges or presenting a substantially complicated case. In Grier v. State, 424 So. 2d 992 (Fla. 2d DCA 1983), a case involving a defendant’s denial of the alleged probation violation, this court upheld defendant’s right to counsel and cited Gagnon. However, we now reiterate our position in Van Cleaf that we will not recede from Herringto…
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Gamble v. State, 685 So. 2d 1310 (Fla. 2d DCA 1996)…labol v. State, 595 So. 2d 1057 (Fla. 2d DCA 1992). Gamble’s three allegations pertaining to the ineffectiveness of his attorney at the revocation hearing and sentencing are, however, meritorious and provide a basis for 3.850 relief. Grier v. State, 424 So. 2d 992 (Fla. 2d DCA 1983). The affidavit charged Gamble with a violation of community control but he was never properly noticed or formally charged with a violation of probation. He rightly contends that his counsel was ineffective in failing to object to…
Authorities Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- van Cleaf v. State, 328 So. 2d 568 (Fla. 2d DCA 1976)
- Chambers v. State, 337 So. 2d 845 (Fla. 2d DCA 1976)
- Watts v. State, 409 So. 2d 222 (Fla. 2d DCA 1982)