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Nieto v. State4/26/2002
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Although the preferred due date for payment of court- ordered moneys is stated plainly in Rule 26.11(d), Ala.R.Crim.P., it appears that Nieto was never informed in the court's written order of probation, pursuant to Rule 27.1, Ala.R.Crim.P., of the necessity to pay the court ordered moneys immediately after pronouncement of sentence. This Court is, therefore, hesitant to permit the revocation of probation based on noncompliance with a term or condition of probation that was not made known to the probationer at the time probation was granted.
It is axiomatic that "procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one's life, liberty, or property interests are about to be affected by governmental action." Brown's Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So. 2d 226, 228 (Ala. 1992). Accordingly, we remand this case to the district court for that court to clarify whether it complied with Rule 27.1, Ala.R.Crim.P., by giving written notice to Nieto that immediate payment of fines and costs was a material condition of his probation. If the district court determines that Nieto's probation was revoked in violation of Rule 27.1, Ala.R.Crim.P., it shall reinstate Nieto's probation and provide him with a written copy of the conditions of probation, including the prescribed due date for payment of all fines, costs and/or restitution.
REMANDED WITH DIRECTIONS.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur. Baschab, J., concurs in part and dissents in part, with opinion.
BASCHAB, JUDGE, concurring in part and dissenting in part.
I concur with that portion of the majority's opinion that holds that, "when the sentencing portion of the Uniform Traffic Ticket and Complaint and the case action summary sheet are silent as to when a defendant is to pay fines and costs, those fines and costs are due immediately after pronouncement of sentence." However, I dissent as to the portion of the majority opinion that remands this case for the district court "to clarify whether it complied with Rule 27.1, Ala. R. Crim. P., by giving written notice to the appellant that immediate payment of fines and costs was a material condition of his probation." Because the district court certified only one question for appeal, that is the only matter that is properly before this court. Therefore, I respectfully dissent from that portion of the majority's opinion that addresses a matter that was not certified by the district court.
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