from Limestone Circuit Court (CC-16-752.70; CC-17-176.70;
CC-17-381.70). Robert W. Baker, Judge
Atkins, Huntsville, for appellant.
Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen.,
Joe Allen appeals from the Limestone Circuit Courts
revocation of his
community-corrections sentence and his probation. On November
1, 2017, Allen pleaded guilty to the possession of a
controlled substance in Case No. CC-17-381, to third-degree
possession of a forged instrument in Case No. CC-17-176, and
to first-degree theft of property in Case No. CC-16-752.
Allen was sentenced to 36 months imprisonment, 54 months
imprisonment, and 96 months imprisonment, respectively. Each
sentence was split and Allen was ordered to serve 180 days in
community corrections, followed by 24 months of supervised
probation, for each conviction, to be served concurrently.
January 15, 2018, the State filed a petition to revoke
Allens community-corrections sentences for violating the
conditions of his community-corrections sentences when he was
arrested for new criminal charges of second-degree assault,
resisting arrest, and disorderly conduct. On February 21,
2018, the State filed a second motion to revoke Allens
community-corrections sentences, alleging that Allen had
committed the new offenses of possession of a controlled
substance, possession of drug paraphernalia, and attempting
to elude. A revocation hearing was set for March 7, 2018.
Following a hearing on the matter, the circuit court revoked
Allens community-corrections sentences and his probation.
The circuit court entered a written revocation order on March
March 29, 2018, Allen filed a pro se notice of appeal. On
April 10, 2018, Allen, through appointed appellate counsel,
filed a "Motion for New Trial," i.e., a motion for
new revocation hearing, in which Allen argued that the
evidence presented at the hearing was insufficient to
support, to a reasonable satisfaction, the conclusion that he
had violated his probation; that his community-corrections
sentences and his probation had been revoked based solely on
hearsay testimony; that the sentence imposed exceeds the
maximum permitted by law; that a full revocation of his
community-corrections sentence and his probation was unduly
excessive; that the court failed to comply with the minimum
due-process requirements of Rules 27.5 and 27.6, Ala. R.
Crim. P., and § 15-18-175(d)(3)b., Ala. Code 1975; and that
his due-process protections guaranteed under the 6th and 14th
Amendments to the United States Constitution had been
violated. (C. 52-53.) Allen subsequently withdrew his motion
for a new trial.
appeal, Allen argues that the circuit courts revocation of
his community-corrections sentence and his probation was
improper because, he says, the court failed to hold a
meaningful hearing in violation of his due-process rights.
Allen also alleges that the circuit courts revocation was
improper because, he says, the court relied solely on hearsay
evidence of Allens alleged new offenses. The State contends
that Allen waived his right to a formal hearing by admitting
the violations against him and that the courts revocation
was based on sufficient evidence because Allen admitted to
violating his community-corrections sentence.
first note that the revocation of a sentence served under a
community-corrections program is generally treated the same
as a revocation of probation. See §
15-18-175(d)(3)b., Ala. Code 1975; Richardson v.
State, 911 So.2d 1114 (Ala.Crim.App. 2004)(treating the
revocation of a community-corrections sentence as a probation
"The general rules of preservation apply in
probation-revocation proceedings. Puckett v. State,
680 So.2d 980 (Ala.Crim.App. 1996). This Court has recognized
three exceptions to the preservation requirement in
probation-revocation proceedings: (1) that there be an
written or oral order of revocation, McCoo v. State,
921 So.2d 450 (Ala. 2005); (2) that a revocation hearing
actually be held; and (3) that the trial court advise the
defendant of his or her right to request an attorney.
Croshon v. State, 966 So.2d 293 (Ala.Crim.App.
2007). Our Supreme Court recognized a fourth exception to the
preservation requirement that allows a defendant to raise for
the first time on appeal the allegation that the circuit
court erred in failing to appoint counsel to represent the
defendant during probation-revocation proceedings.
See Ex parte Dean, 57 So.3d 169, 174 (Ala.
Singleton v. State, 114 So.3d 868, 870
instant case, Allen failed to raise his claim alleging that
the proceeding held on March 7, 2018, was not a proper
revocation hearing until he filed an untimely motion for a
new trial. However, the claim falls within one of the
exceptions to the general rules of preservation and can be
raised for the first time on appeal. A similar argument was
raised in D.L.B. v. State, 941 So.2d 324 (Ala Crim
App. 2006). In D.L.B., the following occurred:
"A revocation hearing was scheduled for June 28, 2005;
the hearing was reset for July 6, 2005. When the arresting
officers did not appear for the July 6 hearing, the hearing
was reset yet again, this time for July 13, 2005. A brief
hearing was held on July 13, 2005. Present before the court
were D.L.B. and his counsel, the prosecuting attorney, and
one of the arresting officers. After hearing argument from
the prosecutor and defense counsel, the circuit court revoked
D.L.B.s probation. No testimony was taken at the hearing,
after the State conceded that the officer present for the
hearing could not actually place the drugs and that the
other arresting officer--the one who actually found the
drugs--was on vacation. The court noted that it was revoking
D.L.B.s probation based on the States representation. (R.
6). The court advised defense counsel: Mr. Byrd, if you want
to file a reconsideration and ask for a hearing, I will
certainly reconsider. But as far as I am concerned, [D.L.B.]
stays with the State at this point. He is in custody. (R.
6-7.) Defense counsel acknowledged the courts action,
stating: For the record, Judge, I renew my position that you
cant do this [revoke D.L.B.s probation] without a hearing.
The State has had two tries at the hearing and theyre not
going forward with the evidence, just representations. (R.
"The court noted in its revocation order that since
beginning his probation, D.L.B. had been arrested for
unlawful possession of a controlled substance and for
distribution of a controlled substance. The court stated that
it was reasonably satisfied from said evidence that [D.L.B.]
did violate the terms and conditions of his probation ...