As this court has twice recently held, "an indigent probationer is entitled to counsel at a hearing involving revocation of probation as well as at the time of sentencing, absent valid waiver of right to counsel." Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983); Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983). In Smith, we specifically declined to adopt the rule of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which accords counsel to an indigent probationer only when he denies having committed the alleged violation or when other substantially complicated reasons justify or mitigate a violation and make revocation inappropriate.
While it is axiomatic that a criminal defendant has the fundamental right to counsel at every critical stage of the proceeding, see Amend. VI, U.S. Const.; Art I, § 16, Fla. Const., which includes "a hearing involving revocation of probation as well as at the time of sentencing," Smith v. State, 427 So. 2d 773, 774 (Fla. 2d DCA 1983), it bears noting that "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). Hence, our constitutional inquiry in this plenary appeal is whether the trial court's use of the Zoom videoconferencing platform rendered Gonzalez's counsel so ineffective as to amount to fundamental error.
First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers' resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people's surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people's spokespersons making statutory expressions of our citizens' social value judgments. HURLEY, Judge, concurring specially.
First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers' resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people's surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people's spokespersons making statutory expressions of our citizens' social value judgments. HURLEY, Judge, concurring specially.
First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers' resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla.2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people's surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people's spokespersons making statutory expressions of our citizens' social value judgments. HURLEY, Judge, concurring specially.
First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers' resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla.2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people's surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people's spokespersons making statutory expressions of our citizens' social value judgments.
The public defender was appointed as a result of Hooper's affirmative answer. By that time, however, the public defender filed a motion to withdraw his client's admission of guilt and to set a final evidentiary hearing, citing as authority Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), wherein the court said, "We do not believe the right to counsel should be contingent upon appellant denying the charges or presenting a substantially complicated case." On the day of the sentencing hearing, after the court denied the foregoing motion, Hooper explained he had absconded because someone had stolen his car during his incarceration; his life had been threatened several times; there had been attempts to run him over; there was to be no pay, from the job he had taken, for four months; that he could not find another job; and that his probation officer said she could not help him after his life had been threatened.
Second, the taxpayers' resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people's surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people's spokespersons making statutory expression of our citizens' social value judgments.
This court reversed the revocation of probation in Thompson because the defendant had not been convicted of the underlying crime and did not admit the violation. Of more recent vintage, the Second District Court of Appeal has decided two cases, Smith v. State, 427 So.2d 773 (Fla. 2d DCA 1983), and Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983), in which the court held that a probationer is entitled to appointed counsel at a hearing involving revocation of probation. In Mullins the court stated that the probationer "must be advised of his right to counsel prior to or at the beginning of a probation revocation hearing."
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), held that a defendant does not have a constitutional right to appointed counsel at a probation revocation proceeding absent special circumstances which require the appointment of counsel as a matter of fundamental fairness. Accord Grandin v. State, 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.