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King v. State

Alabama Court of Criminal Appeals

April 12, 2019

Billy Dee King
v.
State of Alabama

          Appeal from Russell Circuit Court (CC-16-286.70)

          Kellum, Judge.

         The appellant, Billy Dee King, appeals from the circuit court's revocation of his probation. The record indicates that on December 7, 2016, King pleaded guilty to violating the Sex Offender Registration and Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("SORNA"). The circuit court sentenced King to 180 months' imprisonment; that sentence was split and he was ordered to serve 18 months' imprisonment followed by 13 years and 6 months of supervised probation.

         On March 13, 2018, King's probation officer filed a delinquency report, alleging that King had violated the terms and conditions of his probation by absconding and that his whereabouts were unknown. Specifically, King's probation officer alleged that King had failed to report to his probation officer in Alabama after he was released from the custody of the Minnesota Department of Corrections where he had served time for a probation violation in Minnesota.

         On May 31, 2018, the circuit court conducted a probation-revocation hearing at which King was present and was represented by counsel. At the hearing, Josh McDonald, King's probation officer, testified that when King entered his 2016 guilty plea to the SORNA violation in Alabama, King was being supervised in Alabama for a crime committed in Minnesota. After King served his 18-month sentence in Alabama, King was transferred to Minnesota to serve time for a probation violation. Officer McDonald testified that, pursuant to King's plea agreement, King was required to report back to Alabama after he was released from jail in Minnesota. Officer McDonald testified that he checked on King's status monthly to verify that King was still incarcerated in Minnesota. Officer McDonald testified that he learned in February 2018 that King had been released from prison in Minnesota. According to Officer McDonald, it was King's responsibility to contact the probation office in Alabama upon completing his period of incarceration in Minnesota. Officer McDonald testified that King did not contact him as required or report back to Alabama.

         King testified that he was "broke and homeless" when he was released from incarceration in Minnesota around February 2, 2018. King stated that he reported to the Hennepin County Sheriff's Department in Minnesota after his release "because of [his] situation." (R. 15.) King understood that he was required to register as a sex offender as part of his plea agreement and understood that he was still on supervised probation in Alabama upon his release from incarceration in Minnesota. King testified that he was unaware that he was supposed to communicate with his probation officer in Alabama or whom to telephone. King admitted that he did not contact the probation office in Alabama after he was released from prison in Minnesota.

         At the conclusion of the hearing, the circuit court entered an order in which it revoked King's probation, finding King had absconded based on the evidence presented at the probation-revocation hearing. King filed a timely postjudgment motion in which he argued that the circuit court abused its discretion when it revoked his probation because, he says, the evidence was insufficient to support the circuit court's conclusion that King absconded. King further argued that he was a "technical" violator and, therefore, that the circuit court should have imposed a 45-day "dunk" pursuant to § 15-22-54(e)(1), Ala. Code 1975. The circuit court denied King's motion, finding that King was not qualified for treatment as a technical violator. This appeal followed.

         King's sole contention on appeal is that the circuit court erred in revoking his probation because he "never received a copy nor did he sign a written court order of probation setting out the conditions and regulations of his probation as required under Rule 27.1 of the Alabama Rules of Criminal Procedure." (King's brief, p. 5.) Specifically, King contends that no one contacted him regarding the terms and conditions of his probation and that he never received a written copy of the court's order of 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 adequate 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. 2010)."

Singleton v. State, 114 So.3d 868, 870 (Ala.Crim.App.2012).

         The record indicates that King raises this issue for the first time on appeal. Although King suggests in his brief on appeal that he raised this issue in his motion to reconsider, a close reading of the motion indicates that King merely summarized evidence presented at the hearing when he stated in his motion that it was "undisputed" that "no probation officer visited [King] while incarcerated in Alabama and furthermore, he never executed a probation contract with Alabama probation service." (C. 22.) The circuit court's denial of the motion to reconsider on the basis that King was not a technical violator supports the conclusion that the circuit court did not interpret King's argument as one challenging his probation revocation on the basis of a failure to comply with Rule 27.1, Ala. R. Crim. P. Indeed, King appears to concede the preservation issue when he acknowledges in his brief on appeal that he "never specifically raised the issue of Rule 27.1." (King's brief, p. 14.) Because King's claim does not fall within one of the exceptions to the preservation rule, his contention that he did not receive a written order of probation pursuant to Rule 27.1 is not preserved for review on appeal.

         Based on the foregoing, the judgment of the circuit court is affirmed.

         AFFIRMED.

          Windom, P.J., and McCool and Minor, JJ., concur. Cole, J., ...


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