April 17, 2015
Emily Ruth Belote
State of Alabama
from Baldwin Circuit Court. (CC11-1971.73).
Appellant: Leonard F. Mikul, Bay Minette.
Appellee: Luther Strange, atty. gen., and William D. Dill,
asst. atty. gen.
Judge. Welch, Kellum, and Joiner, JJ., concur. Windom, P.J.,
Ruth Belote appeals the Baldwin Circuit Court's
revocation of her probation. Belote pleaded guilty on January
24, 2012, to the unlawful manufacture of a controlled
substance, a violation of § 13A-12-218, Ala. Code 1975,
and was sentenced to 16 years' imprisonment. Her sentence
was suspended, and she was ordered to serve five years'
September 24, 2014, the circuit court conducted a
probation-revocation hearing at which Belote admitted to the
following: 1) failing to pay court-ordered moneys; 2) failing
to appear at a probation-revocation hearing on February 12,
2014; 3) failing to report to her court-referral officer; 4)
failing to submit to drug screens; 5) being arrested for
giving a false name to a law-enforcement officer; and 6)
testing positive for methamphetamine on the day of the
probation-revocation hearing. The circuit court issued a
written order revoking Belote's probation based on the
appointed counsel has filed a brief in substantial compliance
with Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Counsel stated that he reviewed
the record of the proceedings, the applicable statutes, and
caselaw and that he could find no viable issues to advance on
appeal. This Court issued an Anders order on December 17,
2014. After being given an opportunity to do so, Belote
failed to identify any additional points or issues for
consideration by this Court.
first recognize that, although the legality of Belote's
sentence was not first raised 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), and this Court may
take notice of an illegal sentence at any time. See, e.g.,
Pender v. State, 740 So.2d 482 (Ala.Crim.App. 1999).
previously stated, Belote pleaded guilty to unlawful
manufacture of a controlled substance and was sentenced to 16
years' imprisonment. Her sentence was suspended and she
was ordered to serve five years' probation. Section
15-22-50, Ala. Code 1975, provides, in part:
" Circuit courts ... may suspend execution of sentence
and place on probation any person convicted of a crime in any
court exercising criminal jurisdiction. The court shall have
no power to suspend the execution of sentence imposed upon
any person who has been found guilty and whose punishment is
fixed at death or imprisonment in the penitentiary for more
than 15 years."
(Emphasis added.) In the present case, because the circuit
court imposed a sentence of 16 years' imprisonment,
pursuant to § 15-22-50, the circuit court was without
authority to suspend the execution of Belote's sentence.
this Court in Enfinger v. State, 123 So.3d 535
(Ala.Crim.App. 2012), held that, because the circuit court
did not have the authority under the Split Sentence Act to
impose a term of probation on Enfinger, the circuit court had
no authority to conduct a probation-revocation hearing and to
revoke Enfinger's probation. Likewise, this Court has
extended its holding in Enfinger and found that, in cases
where the circuit court sentences an offender to a term of
imprisonment greater than 15 years and then suspends that
sentence and places an offender on probation pursuant to
§ 15-22-50, Ala. Code 1975, the circuit court lacked the
authority to conduct a probation-revocation hearing and to
revoke the offender's probation. See Scott v.
State, 148 So.3d 458, 464 (Ala.Crim.App.2013)("
Scott's sentence is illegal and the circuit court was
without jurisdiction to revoke Scott's probation, see
Enfinger; because the circuit court did not have the
authority to revoke Scott's probation, the circuit
court's order purporting to do so was without
effect." ); and Adams v. State, 141 So.3d 510,
512 (Ala.Crim.App. 2013)(same). Therefore, Belote's
sentence for the unlawful manufacture of a controlled
substance is illegal and the circuit court was without
jurisdiction to revoke her probation, and the circuit
court's order purporting to do so was without effect. See
Scott, 148 So.3d at 464; Adams, 141 So.3d
the record is unclear whether Belote's sentence was a
part of a negotiated plea bargain; thus, " it is
impossible for this Court to determine whether resentencing
[Belote] will affect the voluntariness of [her] plea.
Austin [v. State], 864 So.2d  at 1119
[(Ala.Crim.App. 2003)]." Adams, 141 So.3d at
512 (quoting Enfinger, 123 So.3d at 539). " If the
[suspended] sentence was a term of [Belote's] 'plea
bargain,' and, if [s]he moves to withdraw [her] guilty
plea, the circuit court should conduct a hearing to determine
whether withdrawal of the plea is necessary to correct a
manifest injustice. See Rule 14.4(e), Ala. R. Crim. P."
Enfinger, 123 So.3d at 539.
the judgment of the circuit court sentencing Belote to 16
years' imprisonment and purporting to suspend that
sentence is reversed, and this case is remanded to the
circuit court for proceedings consistent with this opinion --
including resentencing and addressing any subsequent issues
that might arise relating to the voluntariness of
Belote's guilty plea. The circuit court shall take all
necessary action to ensure due return to this Court at the
earliest possible time but no later than 42 days after the
release of this opinion.
The return to remand shall include a detailed order and a
transcript of the proceedings conducted on remand.
AND REMANDED WITH INSTRUCTIONS.
Kellum, and Joiner, JJ., concur. Windom, P.J., dissents.