MILANE v. STATE

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District Court of Appeal of Florida,Fifth District.

Walter MILANE, Jr., Appellant, v. STATE of Florida, Appellee.

No. 97-1143.

Decided: August 28, 1998

Gerard F. Keating, of Gerard F. Keating, P.A., Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant Attorney General, Daytona Beach, for Appellee.

The issue in this case is whether the trial court erred in not replacing Milane's public defender with private counsel because the Office of the Public Defender, but not the specific attorney assigned to Milane, also represented in another case a material witness against Milane in the case at bar.   Under the facts of this case, we find no error and affirm.

The supreme court in Babb v. Edwards, 412 So.2d 859, 860 (Fla.1982), established the principle that:

[W]here the public defender of a given circuit determines that the interests of indigent defendants are so adverse or hostile that they cannot all be represented by him or his assistant public defenders regardless of the location of their offices within the circuit without conflict of interest, the trial court shall, upon motion of the public defender, appoint other counsel as provided by statute.

In the case before us, the public defender refused to certify conflict and specifically responded to the judge's question that he would not feel in any way constrained in his cross-examination of the witness if called by the State to testify against Milane.   Nothing suggests herein that the cross-examination of the witness at trial was anything other than vigorous.   Since Milane has been unable to establish a conflict which adversely affected counsel's performance, we affirm the decision below.

AFFIRMED.

HARRIS, Judge.

GRIFFIN, C.J., and THOMPSON, J., concur.

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