Summary
finding no conflict of interest where another public defender represented a prosecution witness in a separate matter; where defense counsel "specifically responded to the judge's question that he would not feel in any way constrained in his cross-examination of the witness if called by the State to testify against [the defendant]"; and stating that nothing "suggest[ed] . . . that the cross-examination of the witness at trial was anything other than vigorous"
Summary of this case from State v. MarkOpinion
No. 97-1143
Opinion filed August 28, 1998 JULY TERM 1998
Appeal from the Circuit Court for Volusia County, S. James Foxman, Judge.
Gerard F. Keating, of Gerard F. Keating, P.A., Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant Attorney General, Daytona Beach, for Appellee.
The issue in this case is whether the trial court erred in not replacing Milane's public defender with private counsel because the Office of the Public Defender, but not the specific attorney assigned to Milane, also represented in another case a material witness against Milane in the case at bar. Under the facts of this case, we find no error and affirm.
The supreme court in Babb v. Edwards, 412 So.2d 859,860 (Fla. 1982), established the principle that:
[W]here the public defender of a given circuit determines that the interests of indigent defendants are so adverse or hostile that they cannot all be represented by him or his assistant public defenders regardless of the location of their offices within the circuit without conflict of interest, the trial court shall, upon motion of the public defender, appoint other counsel as provided by statute.
In the case before us, the public defender refused to certify conflict and specifically responded to the judge's question that he would not feel in any way constrained in his cross-examination of the witness if called by the State to testify against Milane. Nothing suggests herein that the cross-examination of the witness at trial was anything other than vigorous. Since Milane has been unable to establish a conflict which adversely affected counsel's performance, we affirm the decision below.
AFFIRMED.
GRIFFIN, C.J., and THOMPSON, J., concur.