Opinion
CR-03-2178.
March 18, 2005.
Appeal from the Limestone Circuit Court, No. CC-00-774, James W. Woodroof, Jr., J.
Dan C. Totten, Athens, for appellant.
Michael Alan Hill, pro se.
Submitted on appellant's brief only.
The appellant, Michael Alan Hill, appeals from the revocation of his probation. On June 12, 2002, Hill pleaded guilty to receiving stolen property in the first degree. The trial court sentenced him to 15 years' imprisonment, but it split the sentence and ordered him to serve 1 year in prison, followed by 2 years on supervised probation. On August 27, 2002, the court conducted a restitution hearing and ordered Hill to pay $200 per month to the victim and to pay the balance of the restitution in full on or before March 2005. On March 9, 2004, the district attorney's office filed a petition for revocation, charging that Hill had violated the terms of his probation by failing to pay his court-ordered financial obligation. On May 17, 2004, Hill's probation officer filed a delinquency report, charging Hill with failing to abide by the terms of his probation: (1) by failing to report to his probation officer as directed; (2) by failing to pay his supervision fee as directed; and (3) by failing to pay his court-ordered financial obligation of $200 per month as directed. After conducting a hearing on August 11, 2004, the circuit court revoked Hill's probation.
The amount of restitution is not clear. The appellant's counsel states that the amount of restitution is $75,400, and that the total of the restitution and court fees is $75,924. However, the court stated at the revocation hearing that Hill owes "in excess of $81,000."
Hill's appointed counsel has filed a petition in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he states that he has reviewed the record and has found no issue of legal merit to bring before this court on appeal. Hill, acting pro se, has filed four points and issues for this court to consider. He argues that the revocation of his probation should be reversed because, he argues: (1) the trial court failed to provide him with a written copy of the terms of his probation; (2) the evidence presented at the revocation hearing was based solely upon hearsay information; (3) the circuit court's written revocation order failed to set forth the evidence relied upon and the reasons for revoking his probation; and (4) the circuit court failed to inquire as to whether revocation followed by imprisonment was the appropriate disposition in light of his indigent status.
The general rules of preservation apply to probation-revocation hearings. Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App. 1992). This court has recognized three exceptions to the general rule that issues not presented to the trial court are waived on appeal: when there is no adequate written order of revocation, when a revocation hearing has not been held, Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App. 1996), and when the trial court has failed to advise the defendant of his right to request counsel during probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App. 2000).
Hill has raised all of his claims for the first time on appeal. Because his first, second, and fourth claims are not among the exceptions to the preservation requirement, he has waived consideration of those issues on appeal. With regard to his third claim, this court has held that before the trial court can revoke a defendant's probation, the court must provide a written order stating the evidence and the reasons relied on for the revocation. Trice v. State, 707 So.2d 294 (Ala.Crim.App. 1997). A mere reference to "[e]vidence presented at the hearing" or "[t]estimony received on record" does not satisfy the due-process requirements recognized in Rule 27.6(f), Ala. R.Crim. P., for stating the evidence upon which the court relied. McGhee v. State, 912 So.2d 534 (Ala.Crim.App. 2004); Naves v. State, 816 So.2d 1072, 1074 (Ala.Crim.App. 2001).
The order in the present case states that the court considered "the evidence at this hearing," but it does not specifically set out the evidence upon which the court relied. Even though sufficient evidence to revoke probation is apparent in the transcript of the revocation hearing, we are required to remand this case for the trial court to issue a new revocation order, in light of the Alabama Supreme Court's holdings in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala. 1992). Therefore, we remand this cause to the circuit court with directions to enter a new order that states the specific evidence it relied upon, as well as its reason or reasons for revoking Hill's probation. A return should be filed with this court within 42 days of the release of this opinion.
Note from the reporter of decisions: On June 17, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On July 15, 2005, that court denied rehearing, without opinion. On September 9, 2005, the Supreme Court denied certiorari review, without opinion (1041657).
COBB, J., concurs specially, with opinion.
BASCHAB, J., concurs in the result.
SHAW, J., dissents, with opinion.
WISE, J., joins in dissent.
I recognize that this Court must follow the holding of the Alabama Supreme Court in Wyatt v. State, 608 So.2d 762 (Ala. 1992), which requires the circuit court to provide a probationer with a written order stating the evidence and the reasons relied upon in revoking probation. The rationale for this requirement is not only to afford the probationer due process but also to "`offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.'" Williams v. State, 895 So.2d 1012 (Ala.Crim.App. 2004) (quoting, T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Crim.App. 1994)). I agree that probationers should be assured these protections.
However, I write specially because I believe that the revocation of Hill's probation could be affirmed based on the record for the reasons expressed by this Court in Trice v. State, 707 So.2d 294 (Ala.Crim.App. 1997). In Trice, this Court stated that "[b]ecause revocation proceedings can be transcribed, the goal of providing a basis for evaluating the revocation hearing and the ultimate decision is accomplished by a sufficient pronouncement on the record without requiring the circuit court to reproduce its ruling in a separate written order." Trice v. State, 707 So.2d at 298-99.
In the instant case, the record reflects that Hill did not dispute that he had failed to comply with the terms of his probation requiring that he report to his probation officer and pay court-ordered moneys. To the contrary, the record reflects that Hill acquiesced to those accusations.
In its written order, the trial court stated, in pertinent part:
"After considering the evidence at this hearing, this Court is reasonably satisfied that the underlying charges against [Hill] are true as stated in the petition filed by the State of Alabama and in the report filed by the State Probation Officer, Tom Hurley, as follows: [Hill] has failed to comply with the terms of his probation in that he has failed to pay as Ordered; Violation of Condition No. 4 — Failure to Report as Directed; Violation of Condition No. 12 — Failure to Pay Supervision Fee; Violation of Condition No. 15 — Failure to Pay Court-Ordered Financial Obligations.
"It is, therefore, the opinion of the Court that the probationary status of [Hill] be revoked."
(C. 1.) At the conclusion of the revocation hearing the trial court stated:
"THE COURT: But to go through all of this and to get to where we are at this point in time and try to now go back and explain these gaps when you have an order to comply, I mean, I'm going to have to understand what [the district attorney] says. I mean, sure, it's easy to explain it two years later, but if I've got two hundred that I owe and I've got a reporting requirement and I don't meet it, I better be telling somebody about it. I mean, the responsibility of how you've handled this is bad. You know, you have got to work out arrangements during the course of all this in order to get some type of blessing on working differently, but to get to the end of all this and now say, Judge, you know — I mean, we've got $81,000 that we owe. You've paid four hundred and something dollars. You've got other incarcerations, which is certainly not an excuse for this. You've had a wreck, which I respect, but we're not handling anything appropriately. I mean, you've got a sentence that's suspended based on everybody agreeing that you be on probation under certain very fair terms.
". . . .
". . . But we don't do it, and we don't explain it and we don't do anything until the end of it. That's what concerns me.
". . . .
". . . I'm going to order you revoked. It's unfortunate, but I'm going to order you revoked."
(R. 7-10.)
Here, I do not believe that Hill was deprived of due process because the record reflects that Hill was sufficiently apprised of the reasons and the evidence relied on to revoke his probation. Likewise, the simplicity of the charges and facts created no hindrance in reviewing the record; it is clear that there was no abuse of discretion by the trial court, and the order is sufficiently specific to prevent future revocations based on the same conduct. I believe that it is a waste of judicial resources to remand this case for additional written findings when the record complies with Rule 27.6(f), Ala. R.Crim. P. ("The judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.") (emphasis added), and additionally I believe that it is a waste of judicial resources to remand this case because the record clearly supports the findings contained in the trial court's revocation order.
The trial court properly set forth its reasons for revoking Michael Alan Hill's probation in its written revocation order — that Hill had failed to pay various court-ordered moneys and that Hill had failed to report to his probation officer. I agree with the main opinion, however, that the trial court did not state the evidence it relied on in revoking Hill's probation and, thus, that its order violates due process. Nevertheless, after reviewing the record in this case, I believe the error was harmless beyond a reasonable doubt. See my dissent in Hodges v. State, 912 So.2d 302 (Ala.Crim.App. 2005).
Hill was provided a revocation hearing in accordance with Rule 27.6(a), Ala. R.Crim.P., and he was represented by counsel during that hearing. Although Hill makes several pro se arguments on appeal, none of the issues he raises were properly preserved in the trial court; thus, they cannot be reviewed by this Court. As it stands, the only issue before this Court is the adequacy of the written revocation order. Under these circumstances, it is clear to me that Hill has not been prejudiced by the defect in the trial court's written revocation order and that a remand is not necessary. I would affirm the trial court's judgment. Therefore, I respectfully dissent.
WISE, J., concurs.