Sloan v. StateSloan v. State
The appellant sought a trial de novo in the circuit court. He was charged in a solicitor‘s complaint with violating
The trial court sentenced the appellant to 12 months in the county jail, fined him $2,500.00, and charged him with court costs. Upon payment of the fine and costs, all but 60 days of the sentence was to be suspended.
Following the sentencing, the court revoked the appellant‘s probation on a prior offense, reinstating the six months still to serve. His motion for retrial was thereafter denied.
According to the evidence presented by the State, a deputy sheriff was called to a residence in Blount County where he found the appellant sitting behind the wheel of an automobile with the engine running. The automobile was in a driveway, 15 to 20 feet off the roadway. The deputy turned off the engine and helped the appellant out of the car. He arrested the appellant for driving under the influence of alcohol.
The appellant denied that he was drunk and requested a breath test. The deputy took him to the city jail and administered a test. The result of the test, based on a deficient sample, indicated a .27% blood alcohol content.
The appellant, who chose to represent himself, did not testify and presented no witnesses.
I.
The appellant contends that the trial court erred in instructing the jury, specifically: (1) by giving undue emphasis to the legislative “benchmark” of .10 percent alcohol as presumptive of “under the influence of alcohol,” (2) by failing to instruct on the rebuttable nature of the statutory presumption, and (3) by failing to define “inadequate sample.”
The record reveals the following responses from the pro se appellant when the trial court asked for exceptions to the oral jury charge:
“I think you are getting over the point of the law, other than what I‘m arguing. I admitted to being public [sic] intoxicated, which I was. But I was not driving, and I wasn‘t on a public road.”
“The way you presented it to [the jury], it‘s though they are voting on whether or not I was driving or not. They are not really voting on that.”
When the trial court judge asked him if he was saying, “Put it in the record [I take] exception to the Court charging the jury to the law and not the facts,” the appellant responded, “That‘s right.”
The objections by the appellant at trial did not preserve the issue of these allegedly erroneous jury charges for appeal. Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court‘s failure to act constitutes prejudicial error. Ward v. State, 376 So. 2d 1112, 1115 (Ala. Cr. App. 1979). Furthermore, specific grounds for an objection stated at trial
The appellant adds, at the end of his argument on the jury charge, an abbreviated argument that the trial court did not determine whether the appellant consented to the amendment of the complaint. However, because he did not object on that ground at trial, we cannot review the issue on appeal.
II.
The appellant argues that his sentence was improperly enhanced by the use of a printout of citations to prove prior DUI convictions. However, the appellant made no objection when the prosecutor offered the evidence at trial. Review on appeal of a criminal case is limited to review of questions properly and timely raised at trial. Dixon v. State, 476 So. 2d 1236, 1238 (Ala. Cr. App. 1985). The issue of adequacy of a printout of citations to prove prior convictions was not preserved and cannot be reviewed on appeal.
III.
The appellant argues that the trial court erred in revoking his prior probationary status from a previous DUI when sentencing him pursuant to the present offense. He argues that this revocation was contrary to
“But on probationary matters, when the evidence is presented to the Judge, it is discretionary with the Judge. Now you can appeal that order too, but still you would still be — I‘m going to put you in the custody of the Sheriff pending that. The reason I‘m revoking that, I heard the evidence, what you were charged with, you were on probation. I heard the evidence of that. We have a record on it. The jury could have turned you loose. If I was convinced that you had, in fact, violated your probation by driving while intoxicated, or being in possession of an automobile while intoxicated, I could still revoke you even though the jury would have found you not guilty.”
The trial court clearly had jurisdiction over the appellant, as the sentencing judge in the instant offense, as well as apparently having been the judge who had presided over the appellant‘s prior conviction. The trial court heard all of the evidence presented against the appellant and, as noted by the trial court, a conviction is not a prerequisite to the revocation of probation. See Free v. State, 392 So. 2d 857, 859 (Ala. Cr. App. 1980), cert. denied, 392 So. 2d 859 (Ala. 1981). The appellant did not present any witnesses and did not take the stand. The appellant‘s defense was that he was apprehended while parked in someone‘s driveway and was not driving at the
”Armstrong [v. State, 294 Ala. 100, 312 So. 2d 620 (1975)] is grounded on Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), which held that parole revocation requires ‘an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee‘s behavior.’ 408 U.S. at 484, 92 S. Ct. at 2601. The principles outlined in Morrissey were applied to probation revocation hearings by Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
“Here, we find substantial compliance with Armstrong. Instead of having a probation revocation hearing at which the court would not be bound by strict rules of evidence and the State‘s evidence need only reasonably satisfy the trial judge [the defendant] was tried on the indictment for the criminal offense which was the basis of the delinquency report. This was more than due process requires to revoke his probation. ‘[n]either our statute, . . . nor the Constitution requires a final conviction of probationer on the offense charged before his probation may be revoked.’ Free v. State, 392 So. 2d 857, 859 (Ala. Cr. App. 1980), cert. denied, Ex parte Free, 392 So. 2d 859 (Ala. 1981).
“In Moss v. Patterson, 555 F.2d 137 (6th Cir.), cert. denied sub nom. Kette v. Moss, 434 U.S. 873, 98 S. Ct. 221, 54 L. Ed. 2d 153 (1977), the appellant‘s parole was revoked after he pleaded guilty to several charges. The 6th Circuit Court of Appeals reversed on the grounds that the appellant was not given an opportunity to present evidence in mitigation as required by Morrissey, supra. The situation in the present case, however, is markedly different. [The defendant] did not plead guilty to the burglary charge. He was given a full trial and could have presented evidence in his defense or as mitigation. . . .
“To remand this case for a revocation hearing would accomplish nothing. It would not provide [the defendant] with any right or opportunity to exercise any right which he had not already had, such as an opportunity to present evidence in mitigation. Under the facts of this case, we find that the manner in which Connor‘s probation was revoked did not violate the fundamental fairness guarantee of due process.”
Connor v. State, supra, at 862.
We further note that the appellant does not argue on appeal the trial court‘s apparent failure to make a written statement or report concerning his reasons for revoking the probation. Therefore, this matter is not addressed.
AFFIRMED.
All Judges concur.