Gamble's initial complaint, that his probation should not have been revoked because it had not yet commenced, is without merit. See Villabol v. State, 595 So.2d 1057 (Fla. 2d DCA 1992). Gamble's three allegations pertaining to the ineffectiveness of his attorney at the revocation hearing and sentencing are, however, meritorious and provide a basis for 3.850 relief Grier v. State, 424 So.2d 992 (Fla. 2d DCA 1983). The affidavit charged Gamble with a violation of community control but he was never properly noticed or formally charged with a violation of probation. He rightly contends that his counsel was ineffective in failing to object to this discrepancy at sentencing.
We do not believe the right to counsel should be contingent upon appellant denying the charges or presenting a substantially complicated case. In Grier v. State, 424 So.2d 992 (Fla. 2d DCA 1983), a case involving a defendant's denial of the alleged probation violation, this court upheld defendant's right to counsel and cited Gagnon. However, we now reiterate our position in Van Cleaf that we will not recede from Herrington and will not adopt the foregoing limitations contained in Gagnon.