Do I have a right to counsel for probation violation proceedings?

Criminal-Defense-Lawyer-500x282Yes, you do have a right to have an attorney for probation violation proceedings in the State of Tennessee.

Tennessee Code Annotated § 40-35-311(b) provides that a defendant is entitled to be represented by counsel at a hearing on a revocation of probation. While the right is not a constitutional one, see Gagnon v. Scarpelli, 411 U.S. 778, 789-90 (1967), Tennessee created the right by statute and it has been affirmed in the Tennessee courts. See State v. Merriweather, 34 S.W.3d 881, 884-85 (Tenn. Crim. App. 2000). Tennessee law also requires that a waiver of the right to counsel be in writing. Tenn. Code Ann. § 8-14-206(a). If the defendant cannot afford an attorney, Tennessee Supreme Court Rule 13(d)(1)(C) requires that the court appoint counsel for probation revocation proceedings.

Despite these rights, however, many defendants facing a violation of probation either elect to proceed without an attorney or miss their opportunity to request one. I have seen numerous defendants “flatten” their sentence, meaning that their probation is revoked and they are ordered to serve out their entire sentence in jail, when they likely would have received less jail time had they been represented by counsel. The benefits of a skilled attorney cannot be underestimated, and the motivations of the prosecutor or probation officer to make a fair offer directly to the defendant should not be overestimated. I have also seen cases in some of the rural counties in East Tennessee, where the obligation to advise a defendant of their right to counsel was skipped or glossed over in such a fashion to render it meaningless to the defendant.

So what options are available to a defendant who proceeded without counsel and unjustly received a flattened sentence of incarceration?

1. You may appeal the sentence. You have thirty (30) days after the judgment is entered to file an appeal, and your right to appeal a revocation of probation is guaranteed by Tennessee Rule of Appellate Procedure 3(b) and Tennessee Rule of Criminal Procedure 32(g). You are also entitled to appointed counsel for the appeal if you cannot afford an attorney. Even if you have slightly exceeded the 30-day filing window, the Court of Criminal Appeals enjoys discretion to waive the filing time “in the interests of justice.” You should be sure and request counsel, however, or contact your former counsel, because even though there are numerous cases in which the Court has granted such a waiver to hear probation revocation issues, you must present some compelling reason if you let time pass without acting on the judgment.

2. Another possible option is to file a Motion to Reconsider. But be sure and do this through an attorney because Motions to Reconsider are not actually a remedy recognized in Tennessee Criminal law. Some judges will accept and hear a motion to reconsider and your attorney will need to inform you of the proper option for your jurisdiction. In fact, under some circumstances, you may use a Motion to Reconsider as a preliminary review, and then appeal after the Motion is denied. While this process does not technically “stop the clock” for purposes of the 30-day filing window, case law demonstrates that the Court of Appeals would likely waive the filing time in such cases.

Even if you stipulated to the probation revocation, if you did not do so with the advice of counsel, you may be entitled to some remedy depending on the circumstances. If your probation has been revoked when you did not have counsel, you may either contact a private attorney or an attorney who has been previously appointed to represent you in the matter, or you may write a letter to the court requesting that counsel be appointed for purposes of an appeal or reconsideration.

Best of luck. And for best advice, never do anything without an attorney when facing criminal charges, be it for a probation violation or an original charge.


Tell Governor Haslam Not to Resume Executions in Tennessee

Join Tennesseans for Alternatives to the Death Penalty to obtain an adequate number of signatures to influence Governor Haslam’s political choices.  In short, Tennessee is slated to resume executing death row inmates this year.  If current challenges to the secrecy surrounding lethal injection formulas should succeed, the Tennessee Attorney General has authorized electrocution as the preferred method.  See previous blog post for info on Tennessee’s Green Mile.

Sign the Petition here.  Action is only a click away.

Tennessee seeks execution dates for 10 inmates

Tennessee seeks execution dates for 10 inmates, Dec. 2013

Tennessee’s ‘Green Mile’ — A Return to Carpetbaggers and Stagecoaches?

green_mile5a_BC-725x999In an apparent bid for nostalgia to the late 19th century, the Tennessee Attorney General handed down an opinion on Wednesday that found Senate Bill 2580/House Bill 2476 would not be unconstitutional. The Bills propose to authorize electrocution as the preferred method of execution in Tennessee if lethal injection continues to be an unavailable option. The Attorney General’s opinion suffers from several ‘fatal’ flaws.

The Attorney General cites in support a Sixth Circuit case from 1997 in which electrocution was held not to violate the Eighth Amendment’s prohibition against cruel and unusual punishment. But the case states as part of its reasoning that “[e]lectrocution has never been found to be cruel and unusual punishment by any American Court.” That statement is no longer true.

Nebraska banned the use of electrocution in 2008, finding the practice did, indeed, constitute cruel and unusual punishment under their state constitution. It was the last state to employ electrocution as a preferred method. In a terse warning to public conscience, Justice Connelly of the Nebraska Supreme Court stated, “[w]e recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes.”

Nebraska’s holding followed suit to Georgia, whose Supreme Court banned electrocution as unconstitutional in 2001.

Further, several states have banned execution as a whole since the Sixth Circuit’s conservative ruling. Maryland, once a national leader in executions, banned capital punishment in 2013. Connecticut banned executions in 2012, Illinois in 2011, and New Jersey and New York in 2007. In total, 18 states and the District of Columbia have banned capital punishment in its entirety.

So what is Tennessee’s problem?

In light of the continuing widespread moratoria on lethal injection and the growing difficulty of obtaining drugs for that use, several states have begun to consider reverting to more ancient methods to accomplish executions. Specifically, because lethal injection has been held to present a risk of torture, many pharmaceutical companies are refusing to sell their drugs for that purpose. For example, the European Union has placed an embargo on the export of propofol for execution purposes.


To date, the United States is the only nation worldwide that permits executions by electrocution and gas chamber, placing our illustrious nation within the ranks of countries such as Iran.

In the U.S., eight states permit death row inmates to choose whether to be executed by lethal injection or by the electric chair. But in no U.S. state is electrocution the only option. The Attorney General’s recent opinion, however, leaves no choice to death row inmates if lethal injection remains unavailable in Tennessee.

To better understand just how archaic the notion of death by electrocution is, let’s look at its Americana history. The first electric chair was built in 1888, as a more humane method of killing than by hanging or firing squad. The idea was thought up by a dentist in New York in 1881, who watched a drunk accidentally electrocute himself with little visible pain. And now, a method of execution more than 130 years old, once thought more humane only than hanging and firing squad, is being brought back to life (pun intended) by the good ‘ole southern state of Tennessee.

I must say . . . I’m a tad embarrassed to be a current citizen. What’s next Mr. Attorney General, do you intend to propose a revival of slavery? It’s a tale as old as time itself — Two steps forward, only to take three steps back.

Dog Custody in Divorce

Will pets be treated as children or property in divorce proceedings?  An excellent summary of a recent proceeding in New York and the shifting legal climate concerning pets as property, by Nancy Rogowski at  See the blog here:

Dog Custody in Divorce.



The Time for Tokers Hath Cometh…and Other New Years Jabber

First and foremost, happy new year to you all!

I don’t know about everyone else, but this new year marks a sort of bittersweet occasion for me, as I don’t think I have ever so fervently wished a year to end before.  2013 was rough.  Really rough.  2014 will be better.  Only positive thinking from here on out, and therefore, positive things will follow, right?  I hum the tune “No Cats in America” this morning of the little mouses from that 1980’s cartoon movie An American Tail (dating myself).  I seem to be creating my own lyrics . . . “There will be no stress in Am-er-ic-a, and the streets are paved with cheese promise.”  This will be a year of opportunity, prosperity, success, and good health.  One can hope, at least.  No, I mean, it WILL.  Still getting the hang of this power of positive thinking thing.  I suppose you really have to mean it when you say positive things, with no room for doubt.  So I kick doubt to the curb, that is my resolution; goodbye cynicism and skepticism, all of our shoes have dropped in 2013.  No more waiting for the other one to do so in 2014.

On a different note, it seems that Colorado has made a monumental first step in overcoming the drug “problem” in this country.  Today, the state opened their first retail marijuana stores, where recreational smokers can purvey a buffet of crafted buds and purchase to their tokers’ delight for about $80-100 per quarter ounce.  Employees of the trade worked furiously prior to the New Year to prepare ready-made marijuana cigarettes and other novelties for the grand-opening sales.  The state of Washington is slated to open retail ganja establishments later this year.  While other states had made strides in recent years in pursuing, procuring, and approving medical marijuana bills or legalization mandates, this retail movement represents one of the first regimes of its kind in the world.

My Mom says they were crazy for doing so.  First she said it would foster more drug addiction (but I countered pot is not physiologically addictive), then she said it is a gateway drug.  True, but I think that could change.  She and I had a conversation the other day about our inability to lose weight and keep it off (another 2014 resolution…), but came to the conclusion that people who grew up in households where no snacks or naughty foods were kept learned to covet those foods (my house).  Then, in adulthood, when we get our hands on those naughty foods, it is such a treat that we gorge ourselves of every last bit as soon as we can.  Hence the problem with losing weight…or, more aptly termed, our food addictions.  On the other hand, those who grew up in households with cupboards brimming with Oreos and potato chips, and freezers full of Hot Pockets, Pizza Bites, and (my personal weakness) mozzarella sticks, learned to appreciate the snacks in small amounts, because they understood that there will always be more available when they want to eat them later.  These folks tend not to have weight problems, I think.  Perhaps some sociological research could tell us if that’s a proper inference.

But I digress, I think the same sociological phenomena would apply to illicit substances.  Marijuana would lose its status as a gateway drug if it was legal everywhere.  People would surely not covet the substance if it were freely available, and just like those cupboards full of Oreos, there would not be “starving” tokers who turn to other, more readily available illicit substances if their “leafy greens” were not immediately obtainable on the black market.  The legalization of marijuana, in the long-term, could lead to a decline of addiction in this country.  At least that’s my opinion.

Don’t take this to mean that I myself partake . . . I am just a realist, who can appreciate the downfalls of our illustrious “War On Drugs” for it apparently has worked so well to date (insert sarcastic tone here).  One can always appreciate and make efforts to understand others from afar.

But there are other, more beneficial reasons for widespread legalization.  Take the tax revenue and economical growth that could result from such an immensely profitable new industry.  Colorado predicts about $600 million in annual revenue, with $70 million of that going to state taxes.  Tons of jobs will be created and a new crop of wealthy industrialists will begin to grow.  Someday, maybe 90% of the wealth in this country would not he held by an elite 1% of the population, but could be spread across a broader and more down-to-earth economic base of any person with a hydroponic green thumb or to entrepreneurs with an eye for specialized retail.

More importantly, our normal, regular, everyday citizens would not be building criminal records and serving time in jail for small, and admittedly insignificant, drug offenses such as possession or distribution of marijuana.  Such actions would instead be converted to civil infractions, such as violations of market regulations.  To me, this sounds like a better world.  Any world in which fewer people go to jail is a better one.  Especially given the inevitable tendency for those in jail to commiserate with others in jail who are actually hardened criminals.  One day, a mere marijuana offender, but otherwise law-abiding person, goes in to serve a 30 day sentence, and he emerges with knowledge and new skills of how to pick locks and rob banks.  Or, on a smaller scale, marijuana offenders receive a one year term of probation, and then get trapped in a never-ending cycle of probation officer meetings and arrests that result from things like spitting on the sidewalk or looking at a police officer with a crooked glance.  These otherwise law-abiding individuals become de-sensitized to the legal process, to the suspecting and inquisitorial eye of probation officers, and to the cold-hard feel of steel bracelets, that committing other crimes becomes less of a big deal.  Then…temptation has its day.

Moral of the story, legalization of pot will lead to the decline of addiction and the use of other drugs, will help the economy to grow, will dig our governments out of financial ruin, will clear our over crowded prisons, and will prevent new crops of criminals from popping up out of nowhere.  Not that the last part would be especially good for my career . . . I suppose I would just have to learn how to enjoy civil legal practice a bit more than I currently do.

So hoo-rah Colorado and Washington.  The day of the tokers hath cometh.

I Do Solemnly Swear…Not To Be Boring

In reviewing my last couple of posts, it became apparent that I may have succumbed to the hum-drum that so often drowns an attorney’s personality.  First, allow me to extend my sincerest apologies for previously blogging technical legal smut so dry it would clear the East Tennessee skies.  I have never before been a dull person, and have always prided myself on being bubbly, boisterous, and clever.

So now, I make a promise to my clients, readers, family, and friends, that I will never allow the dark suits and sensible shoes to destroy my sense of humor, to use legalese and long words that alienate the everyday person, or to ignore that which really matters in life to inform you of legal news of which you have no interest.  I further promise . . . never to wear sensible shoes.

It seems that I spent too much time regurgitating legal news during my law school years, when writing “clean” blogs for a busy law firm.  I mistakenly assumed that I too would have to publish in routine, dry fashion, in order to maintain a professional image.  But you know what?  The drought is over.  Today, I made the conscious decision not to just be one of a crowd of law-touting attorneys.  I plan to shine bright, powerful, and unique.  And while I still plan to rock the courtroom with the utmost professional demeanor, I shall not otherwise stifle my wit or hide my gargantuan smile.  I am not bashful.  And my internet presence need not be either.

Perhaps this self-actualizing moment came about from watching the Coen Brothers movie “Intolerable Cruelty” this afternoon while cleaning house.  The hilarious parody tells the tale of a hot-shot divorce lawyer (George Clooney) who falls prey to a gold-digging vixen (Catherine Zeta-Jones), who he himself had before cross-examined on the witness stand and exposed as a serial money-mongering divorcee.  I think maybe this movie was made for an audience of attorneys who needed to have a good laugh at themselves and their field.  I sure had one.  In one slapstick skit, the senior partner of Clooney’s law firm, who is truly “senior,” rants and raves through gurgling breath, all while attended to by nurses, and hooked up to several medical devices and an oxygen tank, complete with IV-drip.  It’s the kind of movie in which you can imagine a nemesis attorney (we all have one) in the protagonist’s place, and manifest a strangely satisfied grin from ear to ear at his misfortune.  It’s a must see.

But the movie reminded me that I need not subject myself to an intellectual drought of personality to publish a professional law blog.  And thus, I hereby do solemnly swear, never to be boring again.