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Jacobs v. State

Alabama Court of Criminal Appeals

July 12, 2019

Robert Lee Jacobs
v.
State of Alabama

          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 ...

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