ROBERT W. COX, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Cox appealed the revocation of his probation, arguing that his right to effective assistance of counsel was violated when his appointed public defender was changed one day before the revocation hearing without adequate preparation time. The Florida District Court of Appeal affirmed the revocation, holding that no specified time period mandates a continuance and that the substitution of counsel from the same public defender's office did not constitute a material change of counsel.
The court affirmed the denial of the continuance motion, holding that: (1) no specified time period establishes as a matter of law that counsel lacks adequate preparation to mandate a continuance; (2) the substitution of counsel from the same public defender's office does not constitute a change of counsel in the traditional sense requiring a continuance; and (3) Marvin adequately represented Cox at the hearing, so no abuse of discretion occurred.
[1] A court does not abuse its discretion in denying a motion for continuance when new counsel, from the same public defender's office as prior appointed counsel, appears on…
[2] There is no specified time period that legally establishes a lack of preparation by counsel mandating a continuance.
Previewing 2 of 4 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“there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance”
Establishes the legal standard that a fixed time period is not required to show inadequate preparation
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Join FLexlaw to unlock all legal intelligenceCox was convicted of issuing worthless checks and receiving stolen property and placed on four years probation. An affidavit of violation was filed al…
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PER CURIAM.
Robert W. Cox appeals an order revoking his probation and urges as reversible error the denial of his motion for continuance because defense counsel was not afforded adequate time to prepare the case and confer with him in derogation of his right to effective assistance of counsel. We do not agree.
Cox was convicted for issuing worthless checks and receiving stolen property, and was placed on four years probation. An affidavit of violation of probation was filed against him for having committed burglary and grand larceny. He was adjudicated indigent and an assistant public defender (Mr. Smith) was appointed. Eight days later at the revocation hearing another assistant public defender (Mr. Marvin) appeared on behalf of Cox and moved for a continuance because the previous day Smith had asked him to handle the hearing and he (Marvin) had just met Cox. The prosecution objected since all the witnesses had been subpoenaed to appear. The court denied the motion for continuance and at the conclusion of the hearing, revoked Cox’s probation. This appeal followed.
Cox contends that a change of counsel one day prior to trial necessitates the granting of a motion for continuance because new counsel is unprepared for trial. We cannot agree.
First, there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance. See Berriel v. State, 233 So. 2d 163 (Fla. 4th DCA 1970). Second, the record reflects that a public defender, Mr. Smith, was appointed eight days prior to the revocation hearing and one day prior to trial another public defender, Mr. Marvin, agreed to handle this case for his associate. Mr. Smith and Mr. Marvin being from the same office or law firm, it cannot be said that there was a change of counsel in the sense that new counsel from a different office or firm had been substituted. See Roberts v. State, 345 So. 2d 837 (Fla.3d DCA 1977) and Smith v. State, 48 Fla. 307, 37 So. 573 (1904). Last, we find that Marvin adequately represented Cox at the hearing and, thus, there was no abuse of discretion in denying the motion for continuance. See Smith, supra; Durcan v. State, 350 So. 2d 525 (Fla.3d DCA 1977); Griffin v. State, 350 So. 2d 567 (Fla.3d DCA 1977); Mobley v. State, 327 So. 2d 900 (Fla.3d DCA 1976).
Affirmed.
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Cited By
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Gibson v. State, 721 So. 2d 363 (Fla. 2d DCA 1998)…decision was made on the Friday before his trial for a capital felony, may raise an issue of ineffective assistance of counsel, but it did not compel the trial judge, who was uninvolved in the reassignment, to grant a continuance. See Cox v. State, 354 So. 2d 957 (Fla. 3d DCA 1978) (change of assistant public defenders one day prior to trial did not compel continuance); see also United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (last-minute substitution of trial counsel does not au…
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Miller v. State, 764 So. 2d 640 (Fla. 1st DCA 2000)…repare for trial.” Brooks v. State, 176 So. 2d 116, 118 (Fla. 1st DCA 1965). However, “there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance.” Cox v. State, 354 So. 2d 957, 958 (Fla. 3d DCA 1978). Previously we have set forth certain factors to be considered in determining whether the denial of a continuance was error due to a lack of adequate time to prepare a defense: 1) the time actually available for preparation,…
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Lorenza Sessions v. State, 965 So. 2d 194 (Fla. 4th DCA 2007)…d time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance,” we find this was not an adequate length of time to allow for a pro se litigant’s preparation of a defense. Cox v. State, 354 So. 2d 957, 958 (Fla. 3d DCA 1978). The State argues that the trial court’s prior denials of his motions to discharge should have put him on notice that the trial court would deny the last motion. While Sessions had been protesting counsel’s representations at…
Authorities Cited
- Mobley v. State, 327 So. 2d 900 (Fla. 3d DCA 1976)
- Smith v. State, 48 Fla. 307 (Fla. 1904)
- Roberts v. State, 345 So. 2d 837 (Fla. 3d DCA 1977)
- Nelly Aparicio v. The Protective Nat'l Ins. Co. of Omaha, 350 So. 2d 525 (Fla. 3d DCA 1977)
- Durcan v. State, 350 So. 2d 525 (Fla. 3d DCA 1977)
- Dudley Lewis LEE v. State, 233 So. 2d 163 (Fla. 1st DCA 1970)
- Berriel v. State, 233 So. 2d 163 (Fla. 4th DCA 1970)
- McArthur Griffin v. State, 350 So. 2d 567 (Fla. 3d DCA 1977)