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.


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