Assistance of Counsel for Probation Proceedings

Assistance of Counsel for Probation Proceedings

Most people understand that a criminal defendant has a constitutional Due Process Clause right under the Sixth and Fourteenth Amendments to the right of counsel.  However, some fail to recognize that the right of counsel extends to probation proceedings.  See State v. Galaviz, 101,084, 2012 WL 6720627, at *5-7 (Kan. Dec. 28, 2012).  The right to counsel includes the right to conflict-free counsel.  Id. at *7. 

Jose Galaviz was placed on probation after pleading guilty to two charges, but 15 months after sentencing violated the conditions of his probation.  Id. at 2.  In his probation revocation proceeding, Galaviz was appointed an attorney to represent him.  Id. at 2.  Galaviz’s appointed attorney had also previously served as the guardian ad litem for the victim of one of Galaviz’ crimes.  Id. at 1.

On appeal from his probation revocation, Galaviz argued that he was denied his right to effective assistance of counsel because his attorney’s position as the guardian ad litem of the victim created a conflict of interest.  Id.  The Supreme Court of Kansas found that Galaviz’s probation revocation could not be automatically reversed because a timely object to the concurrent representation was not made.  However, Galaviz could seek reversal by demonstrating in a post conviction proceeding that the conflict of interest affected the adequacy of the attorney’s representation.

Ultimately the court found that the record on appeal was insufficient for determining whether the conflict of interest affected the attorney’s adequate representation.  Id. at *18.  Thus, the court reversed the Court of Appeals affirmation of the district court’s determinations to revoke probation and remanded the case to determine the nature of the conflict of interest, and whether the conflict requires reversal of the probation revocation.  Id. at 19.

If you any questions concerning attorney conflicts of interest, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel. 

For More Information Please Contact:

Erickson Scherff, LLC
Attorneys at law
10990 Quivira  Suite 200
Overland Park, KS 66210
Tel (913) 948-9490
Fax (913) 491-6398


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