Opinion
CR-18-1109
02-07-2020
Ashley Joyce HARPER v. STATE of Alabama
Teresa R. Lewis, Huntsville, for appellant. Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
Teresa R. Lewis, Huntsville, for appellant.
Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
KELLUM, Judge.
The appellant, Ashley Joyce Harper, appeals the Madison Circuit Court's revocation of her probation. In August 2018, Harper pleaded guilty to burglary in the third degree and was sentenced to 46 months' imprisonment; that sentence was suspended, and Harper was placed on 2 years' supervised probation.
On November 7, 2018, Harper's probation officer filed a delinquency report alleging that Harper had violated the terms and conditions of her probation because of her arrest on a new criminal charge of theft of property in the third degree. In his delinquency report, the probation officer also alleged that Harper had violated her probation by failing to report to her probation officer and by failing to pay probation-supervision fees. Based on Harper's alleged violations, the probation officer recommended that the circuit court fully revoke Harper's probation.
On July 10, 2019, the circuit court conducted a probation-revocation hearing at which Harper was present and was represented by counsel. At the hearing, the State presented evidence indicating that Harper had failed to report to her probation officer. The State presented no evidence regarding the allegation that Harper had committed a new criminal offense. At the conclusion of the hearing, the circuit court found that it was reasonably satisfied that Harper had violated her probation by failing to report. On July 10, 2019, the circuit court entered an order revoking Harper's probation based on her failure to report and ordered Harper to serve the balance of her 46-month sentence in the custody of the Alabama Department of Corrections.
Harper timely filed a motion to reconsider in which she argued that the circuit court had erred by not imposing a 45-day "dunk" sanction pursuant to § 15-22-54(e)(1), Ala. Code 1975. The circuit court denied the motion to reconsider; this appeal followed.
Harper's sole contention on appeal is that the circuit court erred when it did not impose a 45-day "dunk" sanction pursuant to § 15-22-54(e)(1) when it revoked Harper's probation based solely on a technical violation, i.e., Harper's failure to report. The State concedes that the circuit court erred when it fully revoked Harper's probation based solely on a technical violation. Both Harper and the State cite this Court's recent decision in Jacobs v. State, 294 So. 3d 820 (Ala. Crim. App. 2019), in support of their positions on appeal.
In Jacobs, the State moved to revoke Robert Lee Jacobs's probation based on his arrest on a new criminal charge and his failure to complete the Alabama Certain Enforcement Supervision Program ("the ACES program"). Following a hearing, the trial court found that there was insufficient evidence to prove that Jacobs had committed a new criminal offense but revoked Jacobs's probation based on his failure to complete the ACES program. The trial court ordered Jacobs to serve the balance of his sentence in the custody of the Alabama Department of Corrections. On appeal, Jacobs argued that the trial court had erred when it fully revoked his probation based on a "mere arrest or filing of charges" and that the court could impose only a 45-day "dunk" sanction pursuant to § 15-22-54(e)(1). Jacobs, 294 So. 3d at ––––. This Court agreed with Jacobs and held that the full revocation of Jacobs's probation violated § 15-22-54(e)(1) because the trial court had found that Jacobs had committed only a technical violation. Jacobs, 294 So. 3d at ––––.
Indeed, § 15-22-54(e)(1) provides, in pertinent part:
"(e) After conducting a violation hearing and finding sufficient evidence to support a probation violation, the court may revoke probation to impose a sentence of imprisonment, and credit shall be given for all time spent in custody prior to revocation.... However, in all cases, excluding violent offenses defined pursuant to Section 12-25-32 [,Ala. Code 1975,] and classified as a Class A felony, and sex offenses, defined pursuant to Section 15-20A-5, [Ala. Code 1975,] the court may only revoke probation as provided below:
"(1) Unless the underlying offense is a violent offense as defined in Section 12-25-32 and classified as a Class A felony, when a defendant under supervision for a felony conviction has violated a condition of probation, other than arrest or conviction of a new offense or absconding, the court may impose a period of confinement of no more than 45 consecutive days to be served in the custody population of the Department of Corrections."
(Emphasis added.)
The circuit court's revocation of Harper's probation and order of confinement to complete the balance of her 46-month sentence in the custody of the Alabama Department of Corrections violated § 15-22-54(e)(1) because the court found that Harper had committed only a technical violation. Accordingly, the circuit court's July 10, 2019, order is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.