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Davis v. State2/28/2003
On or about May 23, 2000, the appellant, Leslie Howard Davis, pled guilty to first-degree criminal mischief. The trial court sentenced him to serve a term of 4 years in prison, but split the sentence and ordered him to serve 14 months in prison followed by 36 months on supervised probation. It then postponed his term of incarceration for 12 months.
On or about July 16, 2002, the appellant's probation officer filed an "Officer's Report on Delinquent Probationer." After conducting a hearing, the circuit court revoked his probation. This appeal followed.
The appellant argues that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings. Rule 27.5(a)(3), Ala. R. Crim. P., provides that, at the initial appearance, the circuit court shall
" dvise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met."
Rule 27.6(b), Ala. R. Crim. P., provides:
"The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
"(1) If the probationer makes a colorable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
"(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present."
Rule 27.6(c), Ala. R. Crim. P., provides, in pertinent part:
"Before accepting an admission by a probationer that the probationer has violated a condition or regulation of probation or an instruction issued by the probation officer, the court shall address the probationer personally and shall determine that the probationer understands the following:
"....
"(2) The right under section (b) to be represented by counsel ...."
In this case, the record does not indicate that the circuit court advised the appellant of his right to request counsel during the revocation proceedings. Citing Evans v. State, 794 So. 2d 1234 (Ala. Crim. App. 2000), the State contends that this error was harmless because the appellant admitted he had violated the terms and conditions of his probation and because he did not present any evidence to justify or mitigate the violation. In Evans, we stated:
"On appeal, Evans argues that he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding. ...
"We note initially that there is no automatic right to counsel in a probation revocation proceeding, and the right to counsel will be decided by the [circuit] court on a case-by- case basis. Law[ v. State, 778 So. 2d 249 (Ala. Crim. App. 2000)].
"'" [circuit] court's failure to inform an accused of his right to request counsel is not necessarily fatal to its case. 'Unless [the probationer's] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.'"' "Law, 778 So. 2d at 251 (quoting Kitchens v. State, 234 Ga. App. 785, 7
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