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Fifth Circuit Upholds Denial of Continuance to Retain Counsel Morning of Revocation Hearing

by Mark Wilson

The United States Court of Appeals for the Fifth Circuit held that a lower court did not abuse its discretion in refusing to continue a supervised release revocation hearing to allow the defendant to retain counsel.

On August 1, 2014, Van Allen Smith was sentenced to a 60-month supervised release term on a 2007 Texas drug trafficking conviction. He was charged with violating his supervised release when he was caught on video assaulting his ex-girlfriend on July 28, 2015.

Smith was represented by a public defender during his November 10, 2015 initial appearance. The court set a November 13, 2015 detention hearing and a November 19, 2015 revocation hearing, and ordered Smith detained until the revocation hearing.

On the morning of the revocation hearing, a private criminal defense attorney informed Smith's public defender that Smith's family wanted to hire him to represent Smith. The public defender then asked the court to continue the hearing so Smith could formally retain private counsel. The prosecution objected, noting that three witnesses were present to testify, including the victim, who was reluctantly testifying under subpoena because she was afraid of Smith and had received unwelcome contact from his family and friends.

Smith explained that he was dissatisfied with his public defender because she had argued with his mother and made a mistake during an earlier hearing, prompting the judge to correct her. He said he met the new attorney at the jail the previous day. While admitting that the idea of hiring a new attorney was "kind of…happenstance," Smith noted that he had only a week to prepare for his revocation hearing.

The court found that it was unclear whether Smith had actually hired new counsel or could even afford to do so. It then denied the requested continuance, believing that Smith's attempt to change attorneys was simply "an 11th hour tactic" to delay the revocation hearing. The court found Smith in violation of his supervised release conditions, revoked release and sentenced him to a 50-month prison term.

The Fifth Circuit affirmed. "Without deciding whether a criminal defendant has a right to counsel of choice at a revocation hearing," the court concluded "that even if Smith did have that right, the district court did not clearly abuse its discretion by denying his motion to continue."

See: United States v. Smith, F.3d (5th Cir. 2016).

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Related legal case

United States v. Smith



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