ALICE HOUGH GARGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alice Hough Gargan was denied counsel at a probation revocation hearing where she pleaded guilty to violating her probation terms. The Florida District Court of Appeal reversed and remanded, holding that the Sixth Amendment right to counsel applies to probation revocation proceedings, even when counsel is appointed for the subsequent sentencing phase.
The right to counsel exists at every stage of a criminal proceeding where substantial rights of a defendant may be affected, including probation revocation hearings. Counsel must be afforded at a probation revocation hearing regardless of whether it is conducted in one stage or separated from sentencing, and regardless of whether counsel is appointed for a later sentencing phase.
“a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.”
Establishes the core holding that counsel is required at probation revocation hearings, citing Mempa v. Rhay
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Join FLexlaw to unlock all legal intelligenceGargan was placed on probation on April 21, 1967, after pleading guilty to a narcotics violation. She was subsequently charged with violating probatio…
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On 21 April 1967 defendant Alice Hough Gargan was placed on probation after pleading guilty to an information charging her with a narcotics violation. She was sub*579sequently charged by affidavit with violating the terms of her probation. On 3 January 1968 she appeared without counsel, but upon being questioned stated she wished an attorney present and that she “would like to have public representation or try to represent my case somehow.” The trial judge told defendant she was not entitled to counsel as a matter of right except at the time of sentencing. Then, without appointing counsel, the court continued the case until the next day.
The following day defendant again appeared without counsel and pleaded guilty to the alleged violation of her probation. The public defender was then appointed to represent her at the sentencing. Defendant here appeals the order revoking her probation, claiming she was denied her constitutionally guaranteed right to counsel. We agree.
The United States Supreme Court was recently faced with a situation very similar to the one now before us. There the petitioner had been denied counsel during a hearing at which his probation was revoked and sentence imposed. The court held that “a lawyer must be afforded at this proceeding 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. The state would have us draw a distinction between the one step procedure used by the State of Washington in Mempa and the instant two stage device in which an attorney was appointed to represent defendant at her sentencing. This contention must be rejected. See Herrington v. State, Fla.App.1968, 207 So.2d 323.
Moreover, it is clear that the' right to counsel exists at every stage of a criminal proceeding where substantial rights of a defendant may be affected. Mempa v. Rhay, supra; Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; French v. State, Fla.App.1964, 161 So.2d 879. Certainly the decision to deprive a probationer of his freedom is as critical as the subsequent imposition of sentence. In fact without the former the latter would not arise. Nor should the right to counsel attach only if the defendant denies violating the probation conditions. To so hold would be analogous to saying that an accused is only entitled to counsel once he pleads to the original charging document. This is clearly not the case. See Peterson v. Wainwright, Fla.1963, 155 So.2d 542 and Dortch v. State, Fla.App.1964, 165 So.2d 409.
It is apparent from the record that defendant requested the assistance of counsel and in no way could it be said that she waived her rights.
Accordingly, the order is reversed and the cause remanded for further proceedings consistent with the views expressed in this opinion. Mempa v. Rhay, supra; Herrington v. State, supra.
Reversed and remanded.
WALDEN, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Singletary v. State, 290 So. 2d 116 (Fla. 4th DCA 1974)…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 he is not the trial judge and the warrant has been…
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Hicks v. State, 452 So. 2d 606 (Fla. 4th DCA 1984)…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 entitled to counsel at a hearing held to determine whether his probation should be revoked. Later, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), indicated that in certain pr…
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Sanderson v. State, 447 So. 2d 374 (Fla. 1st DCA 1984)…e, 421 So. 2d 803 (Fla. 3rd DCA 1982); Woodard v. State, 351 So. 2d 1096 (Fla. 3rd DCA 1977); but see Van Cleaf v. State, 328 So. 2d 568 (Fla. 2nd DCA 1976); Swift v. State, supra; Smith v. State, 427 So. 2d 773 (Fla. 2nd DCA 1983); Gargan v. State, 217 So. 2d 578 (Fla. 4th DCA 1969). The Supreme Court in Gagnon stated that an indigent’s need for appointed counsel in probation revocation proceedings should be made on a case-by-case basis. Certain factors guiding that determination are gleaned from the Gagnon…
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
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Mempa v. Rhay, 389 U.S. 128 (U.S. 1967)
- French v. State, 161 So. 2d 879 (Fla. 1st DCA 1964)
- Herrington v. State, 207 So. 2d 323 (Fla. 2d DCA 1968)
- Dortch v. State, 165 So. 2d 409 (Fla. 1st DCA 1964)
- Peterson v. Louie L. Wainwright, 155 So. 2d 542 (Fla. 1963)