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Nieto v. State4/26/2002
27.1, Ala.R.Crim.P.
As discussed earlier in this opinion, Rule 26.11(d), Ala.R.Crim.P., clearly pertains to a trial court's discretion to allow deferred and installment-payment plans for defendants who cannot pay their cost, fines or restitution immediately following the pronouncement of sentence. The rule does not, however, pertain to a defendant's due process rights regarding the revocation of his probation, which is the ultimate issue in this case.
Payment of a fine is certainly an acceptable condition to remaining on probation. See, e.g., Rule 27.1, Ala.R.Crim.P., Committee Comments. Moreover, Rule 26.11(f)(2), states:
"If a defendant on probation fails to pay a fine or restitution, or any installment thereof, within the prescribed time, the clerk shall give notice of such delinquency to the defendant's probation officer." (Emphasis added.)
This rule clearly contemplates the existence of a payment due date as a condition to a defendant's continuing on probation. Rule 27.1, Ala.R.Crim.P., requires that, when a trial court grants probation,
" ll conditions of probation must be incorporated into a court's written order of probation, and a copy thereof must be given to the probationer. In addition, the court or probation officer shall explain to the probationer the purpose and scope of the imposed conditions and regulations and the consequence of probationer's violation of those conditions and regulations."
The Committee Comments to Rule 27.1, Ala.R.Crim.P., state:
"Providing the probationer with both a written copy of imposed conditions and regulations and an explanation thereof aids in the reinforcement of the probationer's understanding of probation. The rule should alleviate the court's and the probation officer's supervisory burden by eliminating some unnecessary violations caused by probationer's lack of understanding."
Finally, Rule 27.6(e), Ala.R.Crim.P., clearly states that " robation shall not be revoked for violation of a condition or regulation if the probationer had not received a written copy of the condition or regulation." See also Smoke v. State, [Ms. CR-99-2351, March 30, 2001] ___ So. 2d ___ (Ala.Crim.App 2001), opinion on remand [May 25, 2001] ___ So. 2d at ___.
The district court's certification to this Court refers to, and adopts, the stipulation of facts jointly submitted by the appellant and by the State. The certification also states that those factual stipulations truly and accurately reflected the facts as presented to the district court in the appellant's motion to reconsider. Stipulation "G" in the stipulation of facts states:
"At the hearing, it was the Court's and State's position that the absence of a pay-by date or payment plan meant that the Defendant was to pay at once. It was the Defendant's position that the absence of a payment plan or pay-by date meant that the Defendant could pay at any time during the suspended sentence period which would have expired October 21, 2000 (approximately)."
After reviewing the record, including the stipulation of facts, the motion to reconsider, and the district court's certification, we are concerned that the district court may have revoked Nieto's probation in violation of Rule 27.1, Ala.R.Crim.P. The record suggests that the district court may have failed to comply with Rule 27.1, Ala.R.Crim.P., by not informing Nieto in writing of a material condition of his probation, specifically, that the immediate payment of fines and costs was required. The question certified by the district court suggests that Nieto may never have been told that immediate payment was a condition of his probation.
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