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BOLES v. STATE5/29/1998
The appellant, Philip Grady Boles, appeals from the summary dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., which attacked an order of the trial court revoking his probation. The only allegation presented with any specificity in Boles's petition is his contention that the trial court was without jurisdiction to revoke his probation.
It appears from the limited record before us that Boles was sentenced on July 22, 1991, to 15 years' imprisonment for receiving stolen property in the second degree. On that same date, he was placed on probation for five years. On October 15, 1994, while still on probation, Boles, represented by counsel, entered a plea of guilty to an assault charge arising out of an altercation with his wife. Boles was sentenced to 30 days' imprisonment for the new conviction. That sentence was suspended. On November 3, 1994, the district attorney filed a motion to revoke Boles's probation based on Boles's assault conviction. On November 14, 1994, Boles received notice by mail from the district attorney to appear in the trial court on November 22, 1994, for a revocation hearing and stating that the assault conviction was the basis for the revocation proceeding. The revocation hearing was held on the scheduled date, with Boles appearing in court represented by appointed counsel. At the hearing's conclusion, the trial court revoked Boles's probation and reinstated the remaining portion of his 15-year sentence. Boles did not appeal from the trial court's revocation order.
On November 8, 1996, Boles filed a Rule 32 petition in the trial court, alleging that the trial court had no jurisdiction to revoke his probation because, he said, the arrest provisions of § 15-22-54, Ala. Code 1975, were not complied with when the state sought revocation of his probation. The state filed a motion for summary dismissal of Boles's petition, arguing, among other things, that it failed to state a claim for relief. The state's motion for dismissal did not specifically address or deny the factual averments in the petition. On November 18, 1996, the trial court dismissed Boles's petition, without an evidentiary hearing, for failure to state a claim.
Sections 15-22-54(c) and (d), Ala. Code 1975, provide for the arrest of a suspected probation violator as a means of initiating probation revocation proceedings. These sections provide:
"(c) At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence.
"(d) Except as provided in Chapter 15 of Title 12, any probation officer, police officer or other officer with power of arrest, when requested by the probation officer, may arrest a probationer without a warrant. In case of an arrest without a warrant, the arresting officer shall have a written statement by the probation officer setting forth that the probationer has, in his or her judgment, violated the conditions of probation, and the statement shall be sufficient warrant for the detention of the probationer in the county jail or other appropriate place of detention until the probationer is brought before the court. The probation officer shall forthwith report the arrest and detention to the court and submit in writing a report showing in what manner the probationer has violated probation."
Boles maintains that compliance with the arrest provisions of § 15-22-54 is a jurisdictional prerequisite to revocation of probation and that because, in his case, there was no arrest on a warrant or with a written statement of the probation officer, the trial
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