Appeal
from Madison Circuit Court (CC-16-3994.71).
Kellum, Judge.
The
appellant, Robert Lee Jacobs, appeals from the circuit
court's revocation of his probation.
The
record indicates that in February 2017 Jacobs was convicted
of robbery in the third degree, see § 13A-8-43, Ala.
Code 1975. The circuit court sentenced Jacobs to 173
months' imprisonment; that sentence was split, and Jacobs
was sentenced to 18 months' imprisonment followed by 3
years' supervised probation.
On
August 21, 2018, Jacobs's probation officer filed a
delinquency report alleging that Jacobs had violated the
terms and conditions of his probation following his arrest on
a new criminal charge of theft of property in the first
degree. Jacobs's probation officer also alleged Jacobs
violated the terms and conditions of his probation by failing
to complete the Alabama Certain Enforcement Supervision
Program (hereinafter the "ACES program") as ordered
by the circuit court. Based on Jacobs's violations, the
probation officer recommended that the circuit court fully
revoke Jacobs's probation.
On
October 10, 2018, the circuit court conducted a
probation-revocation hearing at which Jacobs was represented
by counsel. At the conclusion of the hearing, the circuit
court found that the State did not present sufficient
evidence that Jacobs had committed a new criminal offense.
The court, however, entered an order on October 10, 2018,
revoking Jacobs's probation based on his failure to
successfully complete the ACES program. The circuit court
ordered Jacobs serve the balance of his 173-month sentence in
the custody of the Alabama Department of Corrections.
Jacobs
filed a timely motion to reconsider in which he argued, among
other things, that the circuit court erred by revoking his
probation "for a period of longer than 45 days under
[§ 15-22-54(e)(1), Ala. Code 1975]." (C. 23.) The
circuit court denied the motion to reconsider; this appeal
followed.
Jacobs's
sole contention on appeal is that the circuit court erred
when it fully revoked his probation after the court found
that the State had failed to prove that Jacobs violated his
probation by committing a new criminal offense. Specifically,
Jacobs contends that the circuit court could not fully revoke
his probation based on "a mere arrest or filing of
charges" but "could only give [him] a 45-day
'dunk' based on the technical violation."
(Jacobs's brief, p. 14.) The State argues on appeal that
"an allegation of a new arrest or conviction or an
allegation of absconding suffice to remove the case from the
'dunk' sanction." (State's brief, p. 7.)
Section
15-22-54(e)(1), Ala. Code 1975, provides, in pertinent part:
"(e) After conducting a violation hearing and finding
sufficient evidence to support a probation violation, the
court may revoke probation to impose a sentence of
imprisonment, and credit shall be given for all time spent in
custody prior to revocation. ... However, in all cases,
excluding violent offenses defined pursuant to Section
12-25-32 and classified as a Class A felony, and sex
offenses, defined pursuant to Section 15-20A-5, the court may
only revoke probation as provided below:
"(1) Unless the underlying offense is a violent offense
as defined in Section 12-25-32 and classified as a Class A
felony, when a defendant under supervision for a felony
conviction has violated a condition of probation, other
than arrest or conviction of a new offense or absconding, the
court may impose a period of confinement of no more than 45
consecutive days to be served in the custody population
of the Department of Corrections."
(Emphasis added.)
As our
Supreme Court recently recognized in Ex Parte
Wayne, [Ms. 1171213, April 26, 2019] __So. 3D__, __
(Ala. 2019),
"Under the plain language of ยง 15-24-54(e)(1), a
circuit court may revoke probation only when it is determined
that the probationer has been arrested for or convicted of a
'new offense' or when the probationer has absconded.
Otherwise, a circuit court does not have discretion to revoke
a probationer's probation for a mere violation of the
terms and conditions of the probation 'unless the
defendant has ...