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Emerson v. State

Alabama Court of Criminal Appeals

March 8, 2019

Anthony Lynn EMERSON,
v.
STATE of Alabama.

Page 517

         Appeal from Madison Circuit Court (CC-17-3759.70)

          Justin T. Nance , Huntsville, for appellant.

          Steve Marshall , atty. gen., and John J. Davis , asst. atty. gen., for appellee.

         McCOOL, Judge.

         Anthony Lynn Emerson appeals the Madison Circuit Court's revocation of his probation. Emerson was originally convicted of violating the Sex Offender Registration and Community Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("SORNA"), and was sentenced to 15 years' imprisonment. His sentence was split, and he was ordered to serve 18 months' imprisonment, followed by 2 years of probation.

         On or about May 2, 2018, Emerson's probation officer filed a delinquency report, in which he alleged that Emerson had violated the terms and conditions of his probation by: 1) committing the new offense of disorderly conduct; 2) failing to report as directed; and 3) failing to pay court-ordered moneys.

         The circuit court held a revocation hearing on July 13, 2018. At the hearing, Officer William Frost with the Huntsville Police Department testified that on April 21, 2018, he and other officers responded to a call regarding a disturbance in a neighborhood in Madison County. When Officer Frost arrived at the scene, Emerson and another man were on the ground and he was able to discern from the men that they had been in a fight. The men assured Officer Frost that the fight was over, and the officers started to leave. According to Officer Frost, as soon as he and the other officers "got out of sight," the fight started again. (R. 4.) The officers went back and arrested both men. Officer Frost stated that he was unsure which individual had started the fight.

         Officer Christine Baker, a probation officer with the Alabama Board of Pardons and Paroles, testified that on March 6, 2018, Emerson's probation officer instructed Emerson to report to the probation office on March 9, 2018, to sign the rules of probation for a separate offense. According to Officer Baker, Emerson rescheduled the appointment for March 13, 2018, and then failed to report on that date. Officer Baker indicated that Emerson was supposed to be reporting to the probation office for his probation in the underlying case of violating SORNA, as well as his probation on a separate offense. Officer Baker testified that Emerson owed $1,025 for his conviction in Case No. CC-17-3759. Officer Baker testified that Emerson's probation officer had spoken with Emerson's supervisor at his place of employment to verify employment and that Emerson was employed and was receiving a paycheck.

         At the end of the hearing, Emerson's counsel argued that the State failed to present sufficient evidence to show that he had committed the new offense. The court found that "the State did prove probable cause to believe that the new offense did occur, so I am going to revoke Mr. Emerson's probation." (R. 29.) The circuit court entered a written revocation order stating that the court found that Emerson had

Page 518

violated the conditions of his probation by committing the new offense of disorderly conduct, failing to report, and failing to pay court-ordered moneys.

         On appeal, Emerson argues that the only evidence indicating that Emerson failed to report or failed to pay court-ordered moneys was hearsay. Emerson also alleges that the circuit court's written order does not contain a statement of the evidence relied on and the reasons for revoking his probation.

         To the extent that Emerson contends that the only evidence indicating that Emerson failed to report to his probation officer or that he failed to pay court-ordered moneys was hearsay, that claim is not preserved for appellate review.

"`"The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala. Crim. App. 1996), citing Taylor v. State,600 So.2d 1080, 1081 (Ala. Crim. App. 1992). This Court `has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation . . ., and (2) ...

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