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McNair v. State

Alabama Court of Criminal Appeals

October 3, 2014

Michael Williamson McNair
v.
State of Alabama

Released for Publication June 10, 2015.

Appeal from Madison Circuit Court. (CC-12-187.70). James P. Smith, Trial Judge.

REVERSED AND REMANDED.

For Appellant: Eric Wood, Huntsville.

For Appellee: Luther Strange, Atty. Gen., and Ferris Stephens, Asst. Atty. Gen.

KELLUM, Judge. Welch, Burke, and Joiner, JJ., concur. Windom, P.J., dissents.

OPINION

KELLUM, Judge.

The appellant, Michael Williamson McNair, appeals from the Madison Circuit Court's revocation of his probation. In April 2012, McNair pleaded guilty to robbery in the first degree, a violation of § 13A-8-41, Ala. Code 1975. The circuit court sentenced McNair to 10 years' imprisonment, split to time served followed

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by 3 years' supervised probation. The circuit court ordered McNair to pay a $500 fine, $100 to the crime victims' compensation fund, and court costs.

While on probation, McNair violated the terms and conditions of his probation by being arrested for unlawful possession of a firearm. McNair also violated the terms and conditions of his probation by failing to pay court-ordered moneys and probation-supervision fees. On January 16, 2014, the circuit court conducted a probation-revocation hearing. At the hearing, McNair admitted to failing to pay his probation-supervision fees but denied the remaining charges. Thereafter, the circuit court considered the testimony of McNair's probation officers and McNair regarding the remaining charges. Based on the evidence presented, the circuit court entered an order revoking McNair's probation and ordered McNair to serve the balance of his 10-year sentence in the custody of the Alabama Department of Corrections. This appeal followed.

McNair's sole contention on appeal is that the circuit court erred in revoking his probation because, he argues, the underlying 10-year sentence was illegal. Citing this Court's decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App. 2012), McNair contends that, based on the illegal sentence he received, the circuit court was without jurisdiction to revoke his probation.

Initially, we note that, although the legality of McNair's sentence was not first argued in the circuit court, we have held that " [m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App. 1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App. 2000); Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App. 1999).

The record indicates that McNair was indicted by a Madison County grand jury for two counts of robbery in the first degree. Pursuant to a negotiated plea agreement, McNair pleaded guilty to ...


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