Appeal
from Madison Circuit Court (CC-18-1532.70)
KELLUM, JUDGE.
The
appellant, Joshua Jason Lara, appeals from the circuit
court's revocation of his probation. In August 2018, Lara
was convicted of identity theft and was sentenced to 36
months' imprisonment; that sentence was suspended and
Lara was placed on 3 years' supervised probation.
On
September 18, 2018, Lara's probation officer filed a
delinquency report alleging that Lara had violated the terms
and conditions of his probation because of his arrest on new
criminal charges of possession of a controlled substance,
promoting prison contraband in the second degree, and
possession of drug paraphernalia. On April 5, 2019,
Lara's probation officer filed a supplemental delinquency
report alleging additional violations that included
Lara's arrest on new criminal charges of trafficking in
stolen identities, fraudulent use of a credit/debit card, and
failing to report. Based on Lara's violations, the
probation officer recommended that the circuit court fully
revoke Lara's probation.
On May
8, 2019, and May 16, 2019, the circuit court conducted a
probation-revocation hearing at which Lara was represented by
counsel. At the conclusion of the hearing, the circuit court
found that the State presented insufficient evidence that
Lara committed the new criminal charges as alleged in the
delinquency report. The court, however, was reasonably
satisfied based on the evidence presented that Lara had
failed to report to his probation officer. Based on this
finding, the circuit court entered an order on May 16, 2019,
revoking Lara's probation based on Lara's failure to
report and "order[ing] [Lara] to complete the Crime Bill
Program and upon completion be reinstated to probation."
(C. 36.) The circuit court subsequently amended its May 16,
2019, order on June 6, 2019, to order Lara to complete the
substance-abuse program before his return to probation
instead of the crime-bill program. Lara timely filed a motion
to reconsider in which he argued, among other things, that
the circuit court erred by not imposing a 45-day
"dunk" sanction pursuant to § 15-22-54(e)(1),
Ala. Code 1975. The circuit court denied the motion to
reconsider; this appeal followed.
Lara's
sole contention on appeal is that the circuit court erred
when it did not impose a 45 day "dunk" pursuant to
§ 15-22-54(e)(1) after it revoked Lara's probation
based solely on a technical violation, i.e., Lara's
failure to report.
This
Court recently addressed this issue in Jacobs v.
State, [Ms. CR-18-0554, July 12, 2019] So.3d
(Ala.Crim.App.2019). In Jacobs, the State moved to
revoke Jacobs's probation based on his arrest on a new
criminal charge and his failure to complete the Alabama
Certain Enforcement Supervision Program ("ACES
program"). Following a hearing, the trial court found
insufficient evidence that Jacobs had committed a new
criminal offense but revoked Jacobs's probation based on
his failure to complete the ACES program. The court ordered
Jacobs to serve the balance of his sentence in the custody of
the Alabama Department of Corrections. On appeal, Jacobs
argued that the trial court erred when it fully revoked his
probation based on a "mere arrest or filing of
charges" and that the court's only option was to
impose a 45-day "dunk" pursuant to §
15-22-54(e)(1). Jacobs, So.3d at . This Court agreed
and held that the full revocation of Jacobs's probation
violated § 15-22-54(e)(1) because the trial court found
that Jacobs had committed only a technical violation.
Jacobs, __ So.3d at .
Indeed,
§ 15-22-54(e)(1) 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.)
The
State argues on appeal that this case is distinguishable from
Jacobs because, it says, the circuit court did not
fully revoke Lara's probation and order Lara to serve the
balance of his sentence in prison but instead ordered Lara to
complete the substance-abuse program before his return to
probation. According to the State, the circuit court acted
within its discretion under § 15-22-54(f) when it
ordered Lara to complete substance-abuse treatment.
Contrary
to the State's contention otherwise, our holding in
Jacobs is applicable in this case. Here, the circuit
court revoked Lara's probation based on a technical
violation and ordered Lara to return to prison to complete
the substance- abuse program. Although the circuit court did
not order Lara to serve the balance of his sentence in prison
following the revocation of his probation, Lara's
probation was revoked and he was sent to prison for an
undetermined length of time.[1]Further, § 15-22-54(f), Ala.
Code 1975, authorizes action on the part of a probation
officer and not a circuit court as the State suggests on
appeal. Section 15-22-54(f) states, in pertinent part, that,
"when a probationer violates his or her probation terms
and conditions imposed by the court, his or her probation
officer may, after administrative review and approval by
the officer's supervisor, require the probationer to
submit to ... substance abuse treatment." (Emphasis
added.) Thus, § 15-22-54(f) in not applicable in this
case.
The
circuit court's revocation of Lara's probation and
order of confinement to complete the substance-abuse program
violated § 15-22-54(e)(1) because the court found Lara
committed only a technical violation. Accordingly, the
circuit court's May 16, 2019, order revoking Lara's
probation and its June 6, 2019, order amending the May 16
...