             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE                FILED
                            NOVEMBER 1998 SESSION
                                                               January 28, 1999

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk


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
                                       OPINION

       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




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