Released for Publication January 20, 2015.
Appeal from Elmore Circuit Court. (CC-10-264.10). Trial Judge: Sibley G. Reynolds, Judge.
For Appellant: David Gordon Thomas, Alexander City.
For Appellee: Luther Strange, Attorney General, Jack W. Willis, Assistant Attorney General.
BURKE, Judge. Windom, P.J., and Welch and Joiner, JJ., concur. Kellum, J., concurs in the result.
On Return to Remand[*]
Jason Bradley Jones appeals the revocation of his probation. He was originally convicted of obtaining a controlled substance by fraud and was sentenced, on July 8, 2010, to 15 years' imprisonment; that sentence was split, and he was ordered to serve 90 days. His confinement was to be followed by 24 months of probation. Jones was charged with violating his probation by failing to avoid injurious and vicious habits. He tested positive for amphetamines and benzodiazepines on January 3, 2012, and for methamphetamine on January 5, 2012, and was referred for inpatient treatment for drug addiction. During treatment, he tested positive for methamphetamine. Thereafter, when he reported to his probation officer, he was allegedly " stuttering and staggering," and tested positive for benzodiazepines and opiates. (C. 6.) He was also charged with violating his probation by failing to complete the inpatient treatment. Jones had been enrolled in four different treatment facilities and was discharged from at least two of these facilities for testing positive for drugs. Jones's probation officer noted in his report that Jones's probation for this offense was due to expire on July 8, 2012, and that Jones still owed court-ordered moneys. The probation officer recommended that Jones's probation be extended for a year or until he paid the amount owed. The court signed and approved the recommendation, and so ordered on August 20, 2012. Jones paid the court-ordered moneys on March 29, 2013.
Thereafter, on April 25, 2013, he was again charged with violating his probation. This report noted that Jones had been serving a 24-month probationary period that had been extended for one year. He was charged with committing a new offense, occurring on April 3, 2013, when he was arrested for domestic abuse against his wife. He was also charged with the
failure to avoid injurious and vicious habits for testing positive for drugs on two occasions, April 3, 2013 and April 23, 2013. Finally, he was charged with failing to report his change of address on April 3, 2013. An arrest warrant was issued on May 15, 2013.
A hearing was apparently held on June 12, 2013 (C. 11, 13); however, no record of the hearing was transcribed. A supplemental record contains an order from the circuit court on the date that the hearing was set, stating: " Case called. Court finding technical violation. Defendant placed in custody for 90 days. Defendant shall enroll in and complete Truth and Recovery Program." (Supp. C. 3.) Jones filed a motion to alter, amend, or vacate, arguing that pursuant to the court's order, his probation was extended for only one year or until he paid his court ordered moneys in full. Therefore, he alleged, because he paid all fines and moneys due on March 29, 2013, his probation was completed on that date and the court's subsequent order should be vacated. He further argued that the treatment facility in which the court ordered him to enroll was in fact a halfway house that cost more money than he could afford and, therefore, he asked for an alternative " that can be completed in less than a one year minimum, that is less expensive, and does not require that he live openly with other drug users." (Second Supp. C. 8.) The circuit court denied the motion by an order entered on July 1, 2013.
On appeal, Jones argues that the court erred in revoking his probation because he had completed all the terms of his probation five days prior to the commission of the technical violation that resulted in the present revocation of his probation. He further argues that the ...