FILED

January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL 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 APPELLANT: FOR THE APPELLEE:

Jeffery Craig Kelly John Knox Walkup

Assistant Public Defender Attorney General & Reporter

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 General

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 Attorney General

Unicoi County Courthouse

Erwin, TN 37650

OPINION FILED: __________________________________

REVERSED AND REMANDED

L. T. LAFFERTY, SENIOR JUDGE
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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 substitution of counsel. The state agrees the trial court

erred in ordering such payment. After a review 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 remanded for consideration of substitution of private counsel without requiring the

appellant’s family to pay $500 to the Public Defender.

BACKGROUND

On March 15, 1995, the appellant filed a petition for post-conviction relief in the

Unicoi County Criminal Court. In June, 1991, the appellant was found guilty of first degree

murder and reckless endangerment with a deadly weapon. The appellant was sentenced

to life in prison for the murder charge and to two years imprisonment for the reckless

endangerment with a deadly weapon charge. In his petition, the appellant alleged

ineffective assistance of counsel at both the trial and appellate levels. Shortly after the

appellant’s petition was filed, the Public Defender’s office was appointed to represent the

appellant due to indigence. The record reflects two amendments to the post-conviction

petition were filed by the Public Defender. For various reasons, the petition was continued

to October, 1997. 

On September 23, 1997, Kenneth F. Irvine, Jr., Esq. filed an entry of appearance

in behalf of the appellant. On October 17, 1997, the trial court conducted a hearing on the

appellant’s request for substitution of counsel and a continuance. Mr. Irvine appeared at

the hearing. During the discussion with counsel, the trial court expressed its concern over

the inability to dispose of the cause. Mr. Irvine advised the trial court that the appellant was

still incarcerated, but the appellant’s family was willing to pay his fee, and he would be

ready to dispose of the petition within thirty days. The trial court determined that the Public

Defender had invested approximately 25 hours in its representation of the appellant at a

rate of $40 per hour. The trial court determined that the appellant’s representation cost the
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taxpayers in excess 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 counsel at such 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 ruling. An

order was entered on November 7, 1997, reflecting the conditional grant of the appellant’s

request for substitution of counsel and resetting 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 appellant asserts that the trial court

erred in requiring his family to pay $500 to the Public Defender before allowing substitution

of private counsel. The state agrees with the appellant’s position. We agree with 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 Court held:

The financial condition of a defendant’s relatives 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

have heretofore come to the aid of an accused cannot be

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). 

The question in inquiries as to insolvency is not whether the

defendant’s friends or spouse or relatives have the ability or

readiness or willingness to provide the funds, but whether the

defendant personally has the means to employ an attorney to

represent him. 
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Id.

It is clear that the appellant is indigent after being incarcerated for many years, and,

therefore, is unable to hire private counsel to assist in the presentation of his petition for

post-conviction relief. 

The trial court’s order is reversed, and the cause is remanded for consideration of

substitution of private counsel without requiring the appellant’s family to pay $500 to the

Public Defender. 

________________________________________

L. T. LAFFERTY, SENIOR JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE