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As noted in n 5, supra, the State raised this problem here as an argument against a grant of certiorari.

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The State's Brief in Opposition 4, n. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents.

Such actions do, however, remain within the discretion of the trial court upon appropriate motion. There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing.

Although I join the Court's opinion, my view that the potential conflict of interest disclosed by the record requires that the judgment be vacated does not rest on the hypothesis that the petitioners' employer may have contrived a test case.

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See ante at U. It rests instead on the likelihood that the state trial court would have imposed a significantly different sentence if it had not been led to believe that the employer would pay the fines. Independent counsel for these individuals surely would not have permitted the trial judge to impose fines that were manifestly beyond their ability to pay without obtaining an enforceable commitment from the employer.

But a lawyer faithfully representing the interest of the employer surely would not make any such commitment gratuitously. The net result of the conflicting interests represented by one lawyer is a manifestly unfair prison sentence imposed on employees of the person who is probably the principal wrongdoer. While I agree with the Court that "there is a clear possibility of conflict of interest" shown on this record, ante at U.

I would, however, reverse the conviction for distributing obscene materials in violation of Ga. See Paris Adult Theatre I v. In my view, the Court is correct in remanding because of the "clear possibility of conflict of interest" shown on the record in this case.

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I would, however, go further and reverse the convictions themselves, which were for violations of an obscenity statute. I believe that that statute, Ga. The Court's disposition of this case is twice flawed: I The petition for certiorari presented a single federal question: This issue was properly presented to and ruled upon by the Georgia courts.

No other federal constitutional Page U. The Court, however, disposes of this case on another ground, but a ground that also involves a constitutional issue: Thus, we are to avoid one constitutional issue in favor of another, which was not raised by petitioners either here or below. I do not believe that this Court has jurisdiction even to reach this question, nor do I see why we should prefer one constitutional issue to another, even if we had the jurisdiction.

The Court, ante at U. But the State merely argued that petitioners' attorney was also the attorney for petitioners' employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners' indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision below -- hardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel.

Moreover, nowhere in the passage of the response cited by the Court are the terms "conflict of interest" used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent's probation cannot be revoked for failure to pay a fine.

However, the State's argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction therefore, arises under 28 U.

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The right to counsel claim was never raised in the state court, nor did the State court ever render a decision on the issue: It is as clear as could be that no federal constitutional claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners' counsel.

At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State's attorney then asserted several times that there was a conflict of interest because petitioners' counsel also represented petitioners' corporate employer and was being paid by that concern to represent petitioners.

This would convince the employer to pay, because it would not want other employees to know that they would not be taken care of in the event trouble arose. Petitioners' attorney, in turn, responded that, although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines.

He urged,hat jailing them would violate the Equal Protection Clause. The sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here.

The Court asserts that "it is appropriate to treat the due process issue as one raised' below, and proceed to consider it here.

However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U. New Hampshire, U. The Court apparently believes that, under Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach.

Weaver v. Graham, 450 U.S. 24 (1981)

Cuyler held only that, if a trial court "reasonably should know that a particular conflict exists," id. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts.

Accordingly, I proceed on that assumption. II As I see it, the Court's disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners' counsel was paid by their employer does not, in itself, constitute a conflict of interest of constitutional dimension. It would have been just as much in the employer's as in the employees' interest to have had the employees adjudged innocent.

Similarly, assuming that the employer had promised to pay whatever fines might be levied against the employees, it was in the employer's interest, just as it was in their interest, to have these fines set at the lowest possible amount. The conflict of interests, therefore, only emerges by assuming that the employer, the owner of an adult bookstore and a movie theater, set out to construct a constitutional test case, and the petitioners' counsel represented the employer in this regard.

Not even a decision to pursue a test case, however, would, in itself, create a conflict of interest.

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One must assume, further, that it was for the sake of this interest that the employer decided not to pay the fines, and for the sake of this interest of the employer Page U.

I recognize that the Court's conclusion relies only upon the "possibility" of this scenario, but I find these assumptions implausible, and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis. The Court's precedents, however, particularly Lindsey v. I find this case a close one. As the Court recently noted: Petitioner was clearly disadvantaged by the loss of the opportunity to accrue gain time through good conduct pursuant to the formula when the legislature changed to a formula.

The new statute, however, also afforded petitioner opportunities not available Page U. I am persuaded in this case, albeit not without doubt, that the new statute is more onerous than the old, because the amount of gain time which is accrued automatically solely through good conduct is substantially reduced, and this reduction is not offset by the availability of discretionary awards of gain time for activities extending beyond simply "staying out of trouble. Since the availability of new opportunities for discretionary gain time and the reduction in the amount of automatic gain time can be viewed as a total package, it must be emphasized Page U.

It is not at all clear that the Florida Legislature would have intended to make available the new discretionary gain time to prisoners earning automatic gain time under the old formula, when the legislature, in fact, reduced the formula when it enacted the new provisions. The question is, of course, one for Florida to resolve.

There is, for example, no dispute that several of the new sources of gain time have no analogues in the previous statutory or administrative scheme. Other new statutory provisions which had only administrative counterparts improved substantially on the availability of gain time.

dating fails page 450

For example, under the old administrative system, an inmate could receive from 1 to 15 days of gain time per month for constructive labor, Fla. Opinion Announcement - February 24, Disclaimer: Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements.

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