WILLIAM SHELTON HERRINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herrington appealed the denial of his post-conviction motion claiming he lacked counsel at his probation revocation hearing. The court reversed and remanded, holding that where the attorney's own letter contradicts court records and denies representation, an evidentiary hearing is mandatory to determine whether Herrington was denied his constitutional right to counsel.
An evidentiary hearing is mandatory when an attorney's affirmative statement denies representation at a critical proceeding, notwithstanding the presumption that court records are correct. If Herrington was not afforded counsel at the revocation hearing, both the revocation order and sentence are void under Mempa v. Rhay.
“a probationer's lack of counsel at a proceeding at which probation is revoked and sentence is imposed voids the sentence but not the order of revocation itself”
Establishes the prior Florida law on counsel at revocation hearings
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Join FLexlaw to unlock all legal intelligenceHerrington was convicted of robbery in May 1956 and placed on probation. In October 1956, his probation was revoked and he received a ten-year sentenc…
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Appellant brings this appeal from an order summarily denying his motion for post-conviction relief under Criminal Procedure Rule 1 (now Rule 1.850), 33 F.S.A.
Appellant was convicted of robbery on May 21, 1956, and was placed on probation for a term of ten years. At a hearing conducted on October 22, 1956, his probation was revoked, and he was sentenced to a ten-year prison term. On April 5, 1967, he filed his Rule 1 motion to vacate such revocation and sentence, alleging that he had not been represented by counsel at the October 22, 1956, hearing. The court records indicate that appellant did have counsel at said hearing. Also contained in the record, however, is a letter from his purported attorney which states clearly and unequivocally that he in fact did not represent appellant at the hearing but had been in the courtroom merely as a spectator with appellant’s mother. In denying appellant’s motion, the court below relied upon the statement in the records that appellant had been represented by counsel. The court further noted that the motion was identical to two previous motions filed by appellant.
Florida courts have held that a probationer’s lack of counsel at a proceeding at which’ probation is revoked and sentence is imposed voids the sentence but not the order of revocation itself. See Bryant v. State, Fla.App.1967, 194 So.2d 21-22; Phillips v. State, Fla.App.1964, 165 So.2d 246, 247. The United States Supreme Court, however, has since ruled that such lack of counsel renders the entire proceeding subject to collateral attack, “whether it be labeled a revocation of probation or a deferred sentencing.” Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 258, 19 L.Ed.2d 336, 342. Therefore, if appellant was not afforded the opportunity to be represented by counsel at the hearing in question, both the sentence imposed and the order revoking his probation are void.
Ordinarily, an appellate court would approve a lower court’s denial of a Rule 1 motion where the movant has previously filed other motions alleging similar grounds for relief. Also, court records are presumed to be correct. Here, however, there is a positive statement from the attorney involved declaring that he did not represent appellant at the revocation of probation hearing. Under these circumstances an evidentiary hearing was mandatory. Gentry v. State, Fla.App.1966, 186 So.2d 531, 532.
We, therefore, reverse the order denying appellant’s motion and remand for an evi-dentiary hearing upon his allegation that he *325was not afforded the opportunity to be represented by counsel at the time of revocation and sentencing.
Reversed and remanded.
LILES, C. J., and PIERCE and HOB-SON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Singletary v. State, 290 So. 2d 116 (Fla. 4th DCA 1974)…counsel must be furnished the indigent parolee and probationer. Here Singletary was represented at his revocation hearing by appointed counsel, which practice has been mandated in Florida by state court decree, see Herrington v. State, Fla.App.1968, 207 So. 2d 323, and Gargan v. State, Fla.App.1969, 217 So. 2d 578, Machwart v. State, 222 So. 2d 38 (2 DCA 1969), and Annotation: Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306. . Acting under RCrP Rule 3.130(b)(4). . Because…
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Sanderson v. State, 447 So. 2d 374 (Fla. 1st DCA 1984)…ng otherwise, especially in view of Gagnon. We realize that the Second District has been reluctant to accord to Gagnon the full import of that decision: Even though Gagnon tells us that for federal constitutional purposes our Herrington [v. State, 207 So. 2d 323 (Fla. 2nd DCA 1968) ] construction of the language of Mempa v. Rhay was stricter than necessary, we are unwilling to recede from Herrington because we believe that counsel should be appointed to represent an indigent probationer faced with revocatio…
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MacHwart v. State, 222 So. 2d 38 (Fla. 2d DCA 1969)…evocation of probation and sentencing occur in the same proceeding both the sentence imposed and the order revoking his probation are void if defendant was not afforded the opportunity to be represented by counsel. Herrington v. State, Fla.App.1968, 207 So. 2d 323. According to the transcript the following took place at this hearing: “THE COURT: You remember what I told you when I placed you on probation? [*42] DEFENDANT: Yes, sir. THE COURT: Do you want a lawyer ? You know what I’m going to do to you. DE…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mempa v. Rhay, 389 U.S. 128 (U.S. 1967)
- Steil v. Starling, 165 So. 2d 246 (Fla. 1st DCA 1964)
- Bryant v. State, 194 So. 2d 21 (Fla. 3d DCA 1967)
- Garrett v. State, 186 So. 2d 531 (Fla. 4th DCA 1966)