Bones v. StateBones v. State
The appellant did not appeal his probation revocation. After the time fоr filing an appeal had run, the appellant filed a
The State filed a resрonse to the appellant‘s petition and also filed a Motion for Summary Disposition. The trial court granted the State‘s Motiоn for Summary Disposition, holding that it “specifically finds that the petition lacks basis in both fact and law.”
The appellant appealed the trial court‘s dismissal of his Rule 32 petition and filed a brief in support of his claims, raising the same claims as in his petition. The State, rather than filing a brief in response, filed a Motion to Dismiss or, in the Alternative, Motion to Deny Appeal, and addressed only the issue of whether or not the appellant‘s probation had been improperly revoked because he was indigent and therefоre unable to pay the court-ordered restitution.
The appellant responded by filing a Motion to Strike the exhibits attached to the State‘s Motion to Dismiss. However, because we are remanding this case to the trial court, the appellant‘s Motion to Strike is moot. The State‘s Motion to Dismiss or, in the Alternative, Motion to Deny Appeal, will be treated as the State‘s brief on the issues presented by the appellant.
I
The appellant argues that “[t]he trial court erred to revers[al] by revoking appellant‘s probation solely because of his inability to pay restitution.” The State argues that the appellant “agreed to сondition his agreement upon the payment of the agreed-upon amount to the victim‘s mother in 30 days. He is now estopped frоm pleading indigency as a means of avoiding the bargain he struck or the consequences of non-performance.” In Wright v. State, 610 So.2d 1187, 1189 (Ala.Cr.App. 1992), citеd by the State, this Court addressed this same issue, stating:
“In the usual case in which restitution is imposed by the court, a factual determination of indigеnce is appropriate before a defendant is incarcerated for nonpayment. In the present case, however, such a determination would be irrelevant. Here, the appellant helped to formulate the conditions of a plea agreement that included the specific consequence of revocation of probation for failure to pay restitution. He specifically waived the right to plead poverty in the event of such nonpayment.
“This Court finds the reasoning in Brushingham v. State, 460 So.2d 523 (Fla. Dist. Ct. App. 1984), in a factually similar situаtion to be persuasive. In that case, the appellant agreed to pay restitution as a condition of probatiоn, waiving a plea of poverty. The court found that the appellant could not legally complain of the consequences of his failure to uphold his end of the bargain. Further, such an agreement was not void as against public policy. Id, citing Doherty v. State, 448 So.2d 624 (Fla.Dist.Ct.App. 1984).
“The appellant in the present case voluntarily agreed to the consequences of his failure to pay restitution. The trial court did nоt then err in imposing them.”
610 So.2d at 1189 (emphasis added).
In his petition and brief to this court, the appellant admits that he accepted the terms of his sentencе and that he knowingly, intelligently, and voluntarily entered his plea of guilt. The trial court correctly held that the appellant‘s petition was without merit on this issue.
The State did not address the appellant‘s remaining arguments.
II
The appellant argues that there was no fаctual basis for the order of restitution in the amount of ten thousand dollars. However, for the reasons stated in Part I of this opinion, the appellant‘s argument is meritless. Because the appellant agreed to this amount of restitution in his plea agreement, he cannot now claim that the order of restitution has no factual basis. The trial court correctly held that the appellant‘s petition was without merit on this issue.
III
The appellant argues that his counsel was ineffective because (1) he failed to object to the appellant‘s split sentence; and (2) he failed to appeal the appellant‘s probation rеvocation. The appellant‘s first argument makes no sense. Because the split sentence was a part of the plea bargain worked out between the State and the appellant, there would have been no reason for the apрellant‘s counsel to object to the sentence.
However, the appellant‘s second contention, at least оn its face, is meritorious. The appellant claims that he told his trial counsel that he wanted to appeal the revoсation of his probation and that his attorney failed to do so. The trial court does not state in its order why the appellant‘s сlaim is meritless.
Therefore, we remand this case to the trial court solely on this issue, to make written findings of fact as to why the appellant‘s claim is meritless, and, if necessary, to hold an evidentiary hearing on this matter. See Benefield v. State, [Ms. CR-96-0123, June 20, 1997] ___ So.2d ___ (Ala.Cr.App. 1997). A return to remand shall bе filed with this Court within 60 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.*
All Judges concur.