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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