148 So. 3d 458
Ala. Crim. App.2013Background
- Scott was convicted in 2006 of unlawful distribution of a controlled substance and sentenced to 20 years, suspended with 5 years probation.
- In 2008 his probation was extended by two years.
- In 2009 a delinquency report alleged a new arrest for third-degree theft, triggering probation revocation.
- Probation revocation hearing proceeded; the court revoked probation and ordered execution of the 20-year sentence.
- Scott appealed the probation revocation; the Alabama Court of Criminal Appeals affirmed with dissent on preservation grounds.
- In 2011 Scott filed a Rule 32 petition alleging lack of counsel at the probation-revocation hearing; circuit court denied, later on remand issued an order finding lack of counsel but upholding jurisdiction and denying relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court had jurisdiction to revoke probation given an illegal underlying sentence | Scott | State | Sentence illegal; no valid probation revocation |
| Effect of failure to appoint counsel during probation-revocation on relief | Scott | State | Failure to inform of right to counsel requires relief; not automatic if counsel unnecessary |
| Whether Rule 32 petition was properly denied on remand | Scott | State | Petition properly denied on merits; however underlying sentence renders issue moot |
| Whether Nos. 32 relief is precluded by Rule 32.2 | Scott | State | Waiver not properly preserved; not precluded |
| Proper disposition given illegal sentence | Scott | State | Remand for resentencing consistent with opinion; circuit court to fix illegal sentence |
Key Cases Cited
- Moore v. State, 40 So.3d 750 (Ala.Crim.App.2009) (unauthorized sentences are jurisdictional)
- Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012) (probation revocation following an illegal sentence; circuit court authority limits noted)
- Law v. State, 778 So.2d 249 (Ala.Crim.App.2000) (informing of right to counsel may be required depending on due-process context)
- Gates v. State, 629 So.2d 719 (Ala.Crim.App.1993) (mere arrest not sufficient for probation revocation)
- Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003) (plea-bargain context considerations for sentencing and withdrawal implications)
- Davis v. State, 855 So.2d 1142 (Ala.Crim.App.2003) (non-admission and lack of evidence can create colorable claim for counsel relief)
- Ex parte Clemons, 55 So.3d 348 (Ala.2007) (waiver of Rule 32 preclusion issues if not raised below may be reviewed)