# FILED January 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION

ROGER HARRIS, ) ) C.C.A. No. 03C01-9712-CR-00516 Appellant, ) ) Unicoi County v. ) ) Honorable Lynn W . Brown, Judge STATE OF TENNESSEE, ) ) (Interlocutory Appeal) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jeffery Craig Kelly John Knox Walkup Assistant Public Defender Attorney General & Repor ter 142 East Market Street 425 Fifth Avenue, North P. O. Box 996 Nashville, TN 37243-0493 Johnson City, TN 37605 Ellen H. Pollack Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601 Kent W. Garland Assistant District A

ttorney General Unicoi County Courthouse Erwin, TN 37650

OPINION FILED: ____________________________

______ REVERSED AND REMAND ED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N The appellant, Roger Harris, appeals pursuant to Rule 10, Tenn . R. App. P., from an order of the trial court ordering the appellant’s family to pay $500 to the Unicoi County Public Defender before allowing s ubstitution of counsel. The state ag rees the t rial court erred in ordering such payment. After a r eview of the record in this cause, briefs of the parties, and appropriate law, we agree. The trial court’s order is reversed, and the cause is remand ed for consideration of substitution o f private counsel without requiring the appellant’s family to pay $500 to the Public Defender. BACKGROUND On March 15, 1995, the appellant fil ed a petiti on for post-conviction rel ief in the Unicoi County Criminal Cour t. In June, 1991, the

appellantwas found guilty of firs t degree murder and reckless endangerment w ith a deadly weapon. The appell ant was sentenced to life in prison for the murder charge and to two years imprisonment for the re ckles s endanger ment with a deadly w eapon charge. In his petiti on, the appellant alleged ineffe ctive assistance of counsel at b o th the trial and appellate le vels. Shortly after the appellant’s petition was filed, the Public Defender’s office w as appointed to represent the appellantdue to indigence. The recor d reflects two amendments to the po st-conviction petition were filed by the Public Defender. For various reasons , the petition was conti nued to October, 1997.
On September 23, 1997, Kenneth F. Irvine, Jr., Es q. filed an entry of

appearance in behalf of the appellant. On October 17, 1997, the trial court conducted a hearing o n the appellant’s request for substitution of c ounsel and a continuance. Mr.Irvine appeared at the hearing. During th e discussion with coun sel, the trial court ex pressed its concern ov

er the inability to dispose of the cause. Mr. Irvi ne advised the trial cour t that the appellant was still incarcerated, but the appell ant’s family was w illing to pay hi s fee, and he would be ready to dispose of the petition within thirty days. The trial court determined that the Public Defender had investedapproximately 25 hours in its representat ion of the appellant at a rate of $40 per hour. The trial cour t determined that the appellant’s representation cost the3

taxpayers in exc

ess of $1,000.

It is clear from the record that the trial court was irritated with the

appellant’s family suddenly coming forth with the funds to pay private counse l at s uch late date. The trial court permitted the substitution of counsel with the requirement that the appellant’s family pay $500 to the Public Defender’s fund. The trial court cited no authority for its rul ing. An order was entered on November 7, 1997, reflecting the conditional grant of the appellant’s reque st for s ubstitution of counsel and resett ing the case for December 9, 1997 to determine if the family had paid the $500.
LEGAL ANALYSIS
In his interlocutory appeal to this Court, the appel lant asser ts that the trial court erred in requiring his

family to pay $500 to

the Public Defender before allowing substitution of private couns el. The state agrees with th e appellant’s position. We agree wi th both parties that the trial court was in error and remand for further proceedings.

In an analogous case, this Court, in State v. Gardner, 626 S.W.2d 721, 724 (Tenn. Crim. App. 1981), reversed a trial court’s decision denying appointed counsel, where the defendant’s father had previously posted the defendant’s bond. This Cour t held:
The financial condition of a defendant’s r elati ves has no bearing on the question of the defendant’s solvency. Sapio v. State, 223 So. 2d 759, 760-61 (Fla. App. 1969 ). Relatives

who ha ve heretofore come to the aid of an accused c anno t b e looked to as the source of funds for an accused, as there is no legal way to force them to provide for their adult child. State v. VanGorder, 192 Iowa 353, 184 N.W. 638, 639 (1921). Th e question in inquiries as to insolvency is not whether t h e defendant’s friends or spouse or relativ es ha ve the ability or readiness or willingness to providethe funds, butwhether the defendant personally has the means to employ an attorney to represent him.4

Id.
It is clear

that the appellant is indig ent after being incarcerated for many years, and, therefore, is unable to hire priv ate counsel toassist in the presentation of his petition for post-conviction reli ef.

The trial court’s order

is reversed, and the cause is remanded for consi deration of s ubstitution of private counsel wi thout requiring the appel lant’s family to pay $500 to th e Public Defender.

_______________ _______________________ _ _ L. T. LAFFERTY, SENIOR JU DGE CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE