882 So. 2d 369 | Ala. Crim. App. | 2003
Bobby Bernard Rander appeals from the trial court's order revoking his probation.
On April 19, 2000, Rander pleaded guilty to two counts of possession of cocaine and was sentenced to 10 years' imprisonment for each conviction, those sentences to run concurrently. The sentences were split and Rander was ordered to serve one year in confinement followed by five years on probation.
On July 3, 2002, Willie Shavers, Rander's probation officer, filed a delinquency report alleging that Rander had violated the terms and conditions of his probation when he was arrested for a new offense, specifically, possession of a controlled substance. After a revocation hearing on August 1, 2002, the trial court revoked Rander's probation.
"Even constitutional issues must be properly preserved for appellate review. Brown v. State,
705 So.2d 871 ,875 (Ala.Crim.App. 1997)."`The general rules of preservation apply to probation revocation hearings. Puckett v. State,
680 So.2d 980 ,983 (Ala.Crim.App. 1996), citing Taylor v. State,600 So.2d 1080 ,1081 (Ala.Crim.App. 1992). This court "has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation . . ., and (2) the requirement that a revocation hearing actually be held." Puckett, 680 So.2d at 983.'"Owens v. State,
728 So.2d 673 ,680 (Ala.Crim.App. 1998). Additionally, as noted earlier, this Court recently held in Law [v. State,778 So.2d 249 (Ala.Crim.App. 2000),] that a defendant can also raise for the first time on appeal that the trial court erred in failing to advise him of his right to request an attorney during probation revocation proceedings. 778 So.2d at 250."
794 So.2d at 1236-37. Rander's challenge to the sufficiency of the evidence does not fall within one of the exceptions to the general rules of preservation that have been recognized in probation revocation *371 proceedings. Thus, because Rander did not raise this claim in the trial court, it was not properly preserved for review.
Chenault v. State,"`In accordance with Gagnon v. Scarpelli, 411 U.S. 778[,
93 S.Ct. 1756 ,36 L.Ed.2d 656 ] . . . (1973), Armstrong v. State,294 Ala. 100 ,312 So.2d 620 (1975), and Wyatt v. State,608 So.2d 762 (Ala. 1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.' Trice v. State,707 So.2d 294 ,295 (Ala.Crim.App. 1997). `These requirements 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.' T.H.B. v. State,649 So.2d 1323 ,1324 (Ala.Cr.App. 1994)."
Rander contends, and the State agrees, that the trial court's order contains what appears to be a clerical error with respect to the evidence presented at the revocation hearing. In its order, the trial court stated that it relied, in part, on the testimony of "Probation Officer John Brantley" in revoking Rander's probation. (C. 35.) However, John Brantley never testified at Rander's revocation hearing; probation officer Willie Shavers testified at the hearing. Therefore, this case must be remanded for the trial court to clarify the evidence it relied on in revoking Rander's probation.
Furthermore, we note that after stating the evidence upon which it relied in revoking Rander's probation, the trial court stated that it was "reasonably satisfied from said evidence and testimony that the defendant did violate the terms and conditions of his probation by failing to comply with the terms as ordered by the court." (C. 35-36.) It is clear from the revocation proceedings as well as from the evidence recited in the revocation order that the trial court was revoking Rander's probation because Rander had violated the terms and conditions of his probation by committing the new offense of possession of a controlled substance; however, the trial court did not clearly state in its written order that that was the reason for revoking probation. Therefore, the trial court should amend the written order of revocation to clearly reflect the reason for revoking Rander's probation.
Based on Armstrong v. State,