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Bauer v. State3/26/2004
The appellant, Mary Alice Bauer, appeals from the circuit court's revocation of her probation. The record reveals that on October 12, 2000, Bauer pleaded guilty to one count of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975. She was sentenced to five years' imprisonment; that sentence was to run concurrently with a sentence from another county. However, the five-year sentence was suspended, and she was placed on five years' supervised probation and ordered to pay all applicable fines and assessments.
On October 11, 2002, Probation Officer Whitt Latham filed a delinquency report on Bauer. The report alleged that Bauer had violated the conditions of her probation because she had been charged with two new criminal offenses; the report further alleged that Bauer had also violated her probation because she had failed to pay court-ordered moneys. The probation officer requested that a probation-revocation hearing be conducted.
On September 18, 2003, a probation-revocation hearing was held. At the revocation hearing, the State presented testimony from Investigator Michael Jones of the Etowah County Sheriff's Department. Jones testified that on August 30, 2002, following his investigation of a residential burglary and theft, Bauer was arrested and charged with third-degree burglary and second-degree theft. Jones testified that during his investigation of the burglary, Bauer admitted going into the residence and taking the owner's property without his permission. No other evidence was presented.
Based on the evidence presented, the circuit court found that Bauer had violated the conditions of her probation, revoked her probation, and reinstated the original sentence. The court's order stated: "[T]he Court finds that [Bauer] has violated the conditions of her probation as set forth in the Delinquent Charges, more specifically Charge No. 1--New Offense: Burglary, 3rd Degree." (C. 28.) However, the order failed to recite any of the evidence presented at the revocation hearing.
Bauer's appointed counsel has filed a brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel stated that he had reviewed the record and that the evidence presented supported the revocation of Bauer's probation. Alternatively, counsel contended that it could be argued that the circuit court's order was not in compliance with the Alabama Supreme Court's mandate in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (Ala.1975).
This Court issued an order on January 12, 2004, informing Bauer that her counsel had filed an Anders brief and ordering her to file with the Court any issues she believed to be worthy of review. Bauer filed no pro se issues. We have also reviewed the record in this case, including counsel's alternative argument that the circuit court's written order of revocation failed to comply with Armstrong.
Bauer's claim regarding the adequacy of the court's revocation order is being raised for the first time on appeal.
*2 "The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court 'has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.' Puckett, 680 So.2d at 983."
Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erred in failing to ad
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