Floyd v. Parole and Probation Com'n, 68878
| Decision Date | 25 June 1987 |
| Docket Number | No. 68878,68878 |
| Citation | 12 Fla. L. Weekly 315,509 So.2d 919 |
| Parties | 12 Fla. L. Weekly 315 Ronald J. FLOYD, Petitioner, v. PAROLE AND PROBATION COMMISSION, et al., Respondents. |
| Court | Florida Supreme Court |
Michael E. Allen, Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Kurt E. Ahrendt, Asst. Gen. Counsel, Florida Parole and Probation Com'n, Tallahassee, for respondents.
On petition for writ of habeas corpus, we consider the question of whether counsel should be furnished to indigent defendants in all parole revocation proceedings. We have jurisdiction under article V, section 3(b)(9), Florida Constitution.
Petitioner was convicted of armed robbery in 1974 and sentenced to prison for ninety-nine years. He was released on parole in 1981 to remain under supervision for twenty years. In 1985, he was charged with violating his parole. Following preliminary and final revocation hearings, the Florida Parole and Probation Commission revoked his parole for failing to make the required monthly reports and for failing to pay the costs of supervision.
Petitioner asserts that although he was indigent, the Commission refused his request for the appointment of a lawyer to represent him at the preliminary and final revocation hearings. The record reflects that the Commission determined pursuant to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), that petitioner was not entitled to be furnished counsel because he admitted the charges, and he was sufficiently capable of speaking for himself on any matters which might justify or mitigate the violations in this uncomplicated case.
In Gagnon the United States Supreme Court held that a state is not under a constitutional duty to provide counsel for indigents in all probation or parole revocation proceedings, but the right to counsel should be determined on a case-by-case basis. However, in State v. Hicks, 478 So.2d 22 (Fla.1985), this Court went beyond Gagnon and held that the State of Florida must furnish counsel to all persons charged with probation violations. The petitioner now asks us to extend this rule to parole revocation proceedings.
The petitioner points to a number of procedural and substantive similarities in probation revocations and parole revocations. He argues that a uniform rule in all parole revocation proceedings would be more easily understood and result in a fairer application. He also argues that the providing of counsel would better protect the basic rights of parolees.
While we acknowledge the merit in these arguments, we conclude that if counsel is to be furnished in all parole revocation proceedings, this decision should be made by the legislature. Revocation of parole is not part of a criminal prosecution, and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). While there are similarities in probation and parole, there are also some significant differences.
Probation is under the jurisdiction of the courts, and it was in the exercise of our authority over the court system that we determined in Hicks that counsel must be furnished in all probation revocation hearings. Parole is administered by the Commission. Moreover, parole revocation proceedings are conducted by nonlawyers. Requiring that counsel be furnished in every case would inevitably lead to the use of counsel by the state. As noted in Gagnon, the decision-making process would be prolonged and the financial cost to the state would be substantial. Finally, unlike probation revocation, parole revocation does not lead to a sentencing hearing which necessarily requires the appointment of counsel.
Since the Commission properly followed the dictates of Gagnon in determining that petitioner was not entitled to counsel in the subject parole revocation proceedings, we deny the petition for habeas corpus. *
It is so ordered.
Petitioner argues that he is entitled to counsel under this Court's decision in State v. Hicks, 478 So.2d 22 (Fla.1985). I think he is correct. Despite the majority's attempt to "distinguish" Hicks by noting the differences between parole and probation revocations, it totally fails to recognize the only basis for the decision in Hicks:
We note at the outset that there is no constitutional requirement for the appointment of counsel in all probation revocation hearings.... We predicate our decision here on the ground that a uniform rule in all probation revocation hearings is more easily understood and easier to administer than requiring attorneys in some cases but not in others.... Judge Downey, writing for the district court, has cogently stated reasons to adopt the ruling we make. We doubt that we could improve upon his opinion and therefore adopt it as the opinion of this Court.
478 So.2d at 23-24 (emphasis supplied).
The conclusion compelled by the rationale in Hicks is equally compelled by parole revocation hearings. There is no question that parolees are constitutionally entitled to counsel in some cases:
It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.
Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 1764, 36 L.Ed.2d 656 (1973).
Moreover, the state concedes that a substantial number of parole revocation proceedings are based on alleged commissions of new criminal offenses wherein counsel must be provided. As in Hicks, the inherent fairness and equality of a uniform rule is far preferable to the difficulties of indefinite standards. Even the federal government has recognized the difficulty in attempting to apply the standard established by Gagnon, and in response thereto Congress has provided for appointed counsel in all federal parole revocation hearings involving indigents. 18 U.S.C. 4214.
Moreover, providing counsel would address the same constitutional concerns expressed by the opinion of the Fourth District in Hicks v. State, which this Court adopted:
We are particularly impressed with the problem of infringing on a probationer's protection against self-incrimination where, as below, a revocation hearing is conducted prior to the disposition of criminal charges forming the basis of the affidavit of violation. See State v. Heath, 343 So.2d 13 (Fla.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977).
As Heath points out, there is a very fine line between a lawful assertion of a probationer's constitutional right to remain silent and an unlawful refusal to answer questions in accordance with the standard conditions of probation or parole. An uncounseled parolee's inability to recognize this fine line will inevitably lead to difficult and perhaps unfair results. Saying too little might result in a violation of parole or probation and saying too much could well result in forfeiture of rights under the fifth amendment. The...
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