STATE OF FLORIDA, PETITIONER,
v.
JOHN NORBERT KING, RESPONDENT
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The State sought to disqualify the respondent's counsel on the basis of an alleged conflict of interest, as counsel had previously been the prosecuting attorney in the offense that formed the basis of the respondent's probation. The court affirmed the denial of the disqualification motion, finding no actual prejudice or substantial involvement by counsel in the same action.
The court affirmed the denial of the disqualification motion, holding that the State failed to demonstrate entitlement to disqualification because the alleged violation of probation was based on a factual predicate entirely unrelated to the prior offense, counsel had no substantial involvement on behalf of the state in the same action, and no actual prejudice was established.
[1] A party seeking disqualification of opposing counsel must demonstrate actual prejudice or an advantage gained that would work to the disadvantage of the moving party.
[2] Disqualification of counsel is not warranted when the alleged probation violation is based on a factual predicate entirely unrelated to the prior offense for which counse…
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Join FLexlaw to unlock all legal intelligence“Respondent's alleged violation of probation is based upon a factual predicate entirely unrelated to his prior offense, and it has therefore not been shown that counsel had any substantial involvement on behalf of the state in the same action.”
Establishes the key distinction that counsel's prior prosecutorial role does not create a conflict because the violation is based on unrelated facts
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRespondent was placed on probation following conviction for an offense in 1980. Respondent's current counsel was the prosecuting attorney in that 1980…
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WENTWORTH, Judge.
Petitioner invokes this court’s certiorari jurisdiction to review an order which declines to disqualify respondent’s counsel from further representation of respondent in the action below. We find that petitioner has failed to demonstrate any departure from the essential requirements of law, and we therefore affirm the order appealed.
Respondent was placed on probation after being convicted for an offense which occurred in 1980, and respondent’s present counsel was the prosecuting attorney in the case. Respondent was subsequently indicted by a federal grand jury for an unrelated offense alleged to have occurred in 1982 and 1983; respondent then retained present counsel (who had entered private practice). A Warrant for Violation of Probation, predicated upon the federal charge, was thereafter filed in Florida, and counsel entered a Notice of Appearance in respondent’s behalf. The state filed a “Motion to Determine the Existence of Conflict,” arguing that counsel should be disqualified since he was the prosecuting attorney for the offense which resulted in the probation alleged to have been violated. After hearing argument of counsel, the court noted that “no actual prejudice has been shown,” and indicated that it would allow counsel to represent respondent. An order denying the state’s “Motion to Disqualify” was subsequently entered.1
Respondent’s alleged violation of probation is based upon a factual predicate entirely unrelated to his prior offense, and it has therefore not been shown that counsel had any substantial involvement on behalf of the state in the same action. Likewise, it does not appear that there has been any “advantage gained that would work to the disadvantage of the state,” and petitioner has neither established nor alleged any “actual prejudice.” In these circumstances petitioner has not demonstrated entitlement to disqualification of respondent’s counsel. See Endress v. Coe, 433 So. 2d 1280 (Fla. 2d DCA 1983); DeArce v. State, 405 So. 2d 283 (Fla. 1st DCA 1981).
The petition for writ of certiorari is denied.
MILLS, J., and McCORD (Ret.), Associate Judge, concur. . The order also recites that the court conducted an inquiry in accordance with U.S. v. Garcia, 517 F. 2d 272 (5th Cir.CA 1975), and determined that respondent “knowingly and voluntarily has waived his Sixth Amendment right to conflict-free counsel.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rodriguez v. State, 684 So. 2d 833 (Fla. 3d DCA 1996)…ant’s attorney had scant, non-substantial involvement in a previous and totally unrelated case. Prejudice is non-existent and any perception of prejudice is unfounded. See McCaskill v. State, 638 [*834] So. 2d 567 (Fla. 5th DCA 1994); State v. King, 447 So. 2d 395 (Fla. 1st DCA 1984). Affirmed.…
Authorities Cited
- United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)
- DeARCE v. State, 405 So. 2d 283 (Fla. 1st DCA 1981)
- Endress v. COE, 433 So. 2d 1280 (Fla. 2d DCA 1983)