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03/03/95 DAN JONES v. STATE

March 3, 1995

DAN JONES
v.
STATE



Appeal from Baldwin Circuit Court. (CC-91-508.70 and CC-91-509.70).

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Dan Jones, appeals from the revocation of his probation.

The appellant, while on probation, was arrested for the unlawful possession of cocaine. The appellant's probation officer recommended in a delinquency report that the court conduct a probation revocation hearing based on the circumstances surrounding the appellant's arrest.

At the hearing, the state presented evidence that police officers had executed a valid search warrant on the appellant's apartment and that as a result of the search they discovered crack cocaine and over $1500 in cash. The appellant was also present at the time of the search.

The court revoked the appellant's probation and, in the case action summary, wrote the following:

"Comes now the Defendant before the Court with his attorney of record for a probation revocation hearing. The Court having heard the testimony and other evidence, finds that the defendant has violated his probation to wit: New Arrest--Possession of a Controlled Substance--Cocaine. Probation is hereby revoked, and the defendant is remanded to the custody of the Commissioner of the Department of Corrections for the term of his sentence. Defendant gave oral notice of appeal."

The appellant contends that the trial court did not comply with the minimum due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); 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 (Ala. 1975); and Rule 27.6(f), Ala.R.Crim.P. Specifically, he argues that the trial court's revocation order was fatally insufficient in that it did not contain a written statement of the evidence relied upon and the reasons for the revocation.

"In addressing probation revocation hearings, the Court, in Gagnon, quoting from Morrissey, listed the following minimal requirements of due process when revoking probation:

"'"(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole." Morrissey v. Brewer, supra, [408 U.S.] at 489, 92 S. Ct. at 2604.'

"Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761-62."

Grimes v. State, 579 So. 2d 693, 694 (Ala. Cr. App. 1991). (Emphasis added in Grimes.)

"In Armstrong v. State, this Court held that, among other procedural requirements, the trial court was required to make a written order setting forth the evidence relied upon and the reason for the revocation in order to meet the due process requirements in a proceeding to revoke probation. Since our decision in Armstrong v. State, this Court has addressed and affirmed the written-order requirement. See Ex parte Lawrimore, 441 So. 2d 122 (Ala. 1983).... This Court ... continues to hold that Armstrong v. State requires a written order ...


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