KATRINE LESHAN GIBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Katrine Gibson's probation was revoked after she moved from her approved residence without permission. The court held that Gibson had a right to counsel at her revocation hearing, either under the Florida rule requiring counsel unless there is an informed waiver, or under the constitutional right to counsel in cases involving substantial mitigating factors. The court reversed because the circuit court failed to conduct a proper inquiry into whether Gibson's waiver of counsel was knowing and intelligent.
Gibson had a right to counsel at her probation revocation hearing under both the Florida rule (State v. Hicks) requiring counsel unless there is an informed waiver, and under the constitutional standard in Gagnon v. Scarpelli, which provides for counsel in cases with substantial reasons that mitigate the violation. The circuit court's perfunctory offer of counsel and acceptance of Gibson's decline was insufficient; the court failed to conduct the thorough Faretta inquiry required to establish a knowing and intelligent waiver.
[1] Counsel must be provided to a probationer before she is required to respond to revocation charges, unless there has been an informed waiver of counsel.
[2] The right to counsel at probation revocation hearings should be determined on a case-by-case basis, and counsel should presumptively be appointed where there are substant…
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Join FLexlaw to unlock all legal intelligence“counsel must be provided to a probationer before she is required to respond to the revocation charges, unless there has been an informed waiver of counsel.”
Establishes the Florida rule from State v. Hicks that counsel must be provided in probation revocations unless there is an informed waiver.
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Join FLexlaw to unlock all legal intelligenceGibson violated her probation by moving from her approved residence without permission. At the revocation hearing, the court offered to appoint counse…
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NORTHCUTT, Judge.
The circuit court found that Katrine Gibson violated her probation by moving from her approved residence without permission. At the revocation hearing, the court told her that if she wanted a lawyer and couldn’t afford one, it would appoint one. Gibson declined, stating she would take care of the matter on her own without a lawyer. She now challenges the revocation of her probation on the ground that the court did not conduct a proper Faret-ta 1 inquiry and that her waiver of counsel was not knowing and intelligent. We agree and reverse.
As our supreme court noted in State v. Hicks, 478 So. 2d 22, 23 (Fla.1985), there is no constitutional requirement that counsel be appointed in all probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). But the Hicks court held that for the sake of uniformity in Florida, counsel must be provided to a probationer before she is required to respond to the revocation charges, unless there has been an informed waiver of counsel.
Moreover, our review of the record leads us to believe that this case is one in which a constitutional right to counsel arose. Gagnon explained that the right to counsel at probation revocation hearings should be determined on a case-by-case basis. See 471 U.S. at 788, 105 S.Ct. 2407. Even where a violation is uncontested, counsel presumptively should be appointed where “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate.... ” Id. at 790, 105 S.Ct. 2407. While it is clear that Gibson changed her residence without first notifying her probation officer, the record showed that she was seriously ill and had moved in with her mother. Gibson also contended that she had notified the probation department several days after her move. Certainly, in such a case an attorney would have argued that her violation was not willful and did not support revocation.
Whether based on Gagnon or Hicks, Gibson had a right to counsel at her probation revocation hearing. The circuit court failed to conduct the thorough inquiry required to establish that she knowingly and intelligently waived her right to have an attorney represent her. See Fla. R.Crim. P. 3.111(d); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We reverse the order revoking Gibson’s probation and remand for a new hearing.
Reversed and remanded.
PATTERSON, C.J., and STRINGER, J., Concur. . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Garrett v. United States, 471 U.S. 773 (U.S. 1985)
- State v. Hicks, 478 So. 2d 22 (Fla. 1985)