Nieto v. StateNieto v. State
- Reporters:
- ,
- Before:
- McMillan, Cobb, Shaw, Wise, Baschab (per curiam)
PER CURIAM.
On October 21, 1998, the appellant, Roddfo Guerrero Nieto, pleaded guilty in the Houston District Court to driving under the influence of alcohol. That same day, the district court sentenced Nieto to 12 months’ hard labor; that sentence was suspended, and Nieto was ordered to serve 60 days in jail followed by 24 months’ probation. The district court further ordered the appellant to pay $2,822.71 in fines and costs. On March 31, 1999, the trial court ordered the issuance of a writ of arrest because Nieto apparently had failed to pay his fine and, therefore, had violated the terms of his probation. On September 28, 2001, the trial court held a hearing and revoked Nieto‘s probation “for failure to pay.”1
Nieto appeals directly from the judgment of the Houston District Court, as authorized by
Nieto argues that “the absence of an order to pay at once and the absence of a pay by date or payment plan meant that [he] could pay at any time during his twenty-four-month suspended sentence.” (Appellant‘s brief at p. 6.) Citing
“If the defendant cannot pay the costs, fine, and/or restitution immediately after pronouncement of the sentence as preferred, the court may permit payment of the costs, fine, and/or restitution, at some later date, or in specified installments.”
We start with the basic premise that words used in court rules must be given their plain meaning. Ex parte City of Montgomery, 721 So.2d 261 (Ala.Crim. App.1998).
“The Alabama Rules of Criminal Procedure were promulgated by the Alabama Supreme Court pursuant to its rulemaking power. In construing these rules, this court will attempt to ascertain and to effectuate the intent of the Alabama Supreme Court as set out in the rule. See generally Shelton v. Wright, 439 So.2d 55 (Ala.1983). This intent may be gleaned from the language used, the reason and necessity for the rule, and the purpose of the rule. Id.
Rule 1.2, [Ala.R.Crim.P.] , states that the rules `shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.‘”
In light of the plain meaning of
As discussed earlier in this opinion,
Payment of a fine is certainly an acceptable condition to remaining on probation. See, e.g.,
“If a defendant on probation fails to pay a fine or restitution, or any installment thereof, within the prescribed time, the clerk shall give notice of such delinquency to the defendant‘s probation officer.”
(Emphasis added.) This rule clearly contemplates the existence of a payment due date as a condition to a defendant‘s continuing on probation.
“[a]ll conditions of probation must be incorporated into a court‘s written order of probation, and a copy thereof must be given to the probationer. In addition, the court or probation officer shall explain to the probationer the purpose and scope of the imposed conditions and regulations and the consequence of probationer‘s violation of those conditions and regulations.”
The Committee Comments to
“Providing the probationer with both a written copy of imposed conditions and regulations and an explanation thereof aids in the reinforcement of the probationer‘s understanding of probation. The rule should alleviate the court‘s and the probation officer‘s supervisory burden by eliminating some unnecessary violations caused by probationer‘s lack of understanding.”
Finally,
The district court‘s certification to this Court refers to, and adopts, the stipulation of facts jointly submitted by the appellant and by the State. The certification also states that those factual stipulations truly and accurately reflected the facts as presented to the district court in the appellant‘s motion to reconsider. Stipulation “G” in the stipulation of facts states:
“At the hearing, it was the Court‘s and State‘s position that the absence of a pay-by date or payment plan meant that the Defendant was to pay at once. It was the Defendant‘s position that the absence of a payment plan or pay-by date meant that the Defendant could pay at any time during the suspended sentence period which would have expired October 21, 2000 (approximately).”
After reviewing the record, including the stipulation of facts, the motion to reconsider, and the district court‘s certification, we are concerned that the district court may have revoked Nieto‘s probation in violation of
Although the preferred due date for payment of court-ordered moneys is stated plainly in
REMANDED WITH DIRECTIONS.*
McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur. BASCHAB, J., concurs in part and dissents in part, with opinion.
BASCHAB, Judge, concurring in part and dissenting in part.
I concur with that portion of the majority‘s opinion that holds that, “when the sentencing portion of the Uniform Traffic Ticket and Complaint and the case action summary sheet are silent as to when a defendant is to pay fines and costs, those fines and costs are due immediately after pronouncement of sentence.” However, I dissent as to the portion of the majority opinion that remands this case for the district court “to clarify whether it complied with