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Wood v. State11/30/2001
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"[DEFENSE COUNSEL]: Judge, before we proceed ... I am going to ask the Court for a continuance of this hearing. The basis for these charges are some underlying charges brought originally in the city court in [Hokes] Bluff, and we had been trying for over a week to find out what their version of these charges were. We did not receive those until they faxed them to us after another follow-up call yesterday afternoon. What they sent us, including the arrest report and some statements that are in the court file down there, raise some issues that I'm not prepared to address today.
"THE COURT: That request for a continuance is denied, [defense counsel].
"[DEFENSE COUNSEL]: Judge, if I could finish, one other thing, too, the underlying charges are also pending in the Circuit Court of Etowah County. I would like to take an exception to the record the Court's ruling and state also that the Court's ruling, if it stands, and ask the Court to reconsider, will deny the defendant his rights to [compulsory] process to obtain witnesses and to present evidence on his behalf." (R. 18-19.)
Although the appellant argued generally that the court's ruling would deny him his right to obtain witnesses, he did not establish who the witnesses would have been and did not establish that their testimony would have been material, competent, and substantially favorable to him. Accordingly, the circuit court did not abuse its discretion when it denied the appellant's motion for a continuance.
II.
The appellant also argues, and the State agrees, that in its written revocation order, the circuit court did not adequately state the evidence upon which it relied in revoking his probation, as required by Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975). In its revocation order, the circuit court stated in pertinent part, that it was "reasonably satisfied from the evidence that the defendant has violated the conditions of probation." (C.R. 1.)
"We have consistently found general recitations by the trial court to its consideration of the 'testimony,' 'sworn testimony,' or 'relevant and competent evidence' presented at the revocation hearing to be insufficient for purposes of satisfying the 'statement of the evidence relied upon' requirement of Armstrong. See McCloud v. State, [Ms. CR-97- 0765, August 28, 1998] So. 2d (Ala. Cr. App. 1998); Thornton v. State, 728 So. 2d 1162 (Ala. Cr. App. 1998); Scarbrough v. State, 709 So. 2d 82 (Ala. Cr. App. 1997); and Hairgrove v. State, 668 So. 2d 887 (Ala. Cr. App. 1995)." James v. State, 729 So. 2d 364, 365 (Ala. Crim. App. 1998).
In its written revocation order, the circuit court did not adequately state the evidence upon which it relied in revoking the appellant's probation. Accordingly, we remand this case to the circuit court for that court to enter a written order that states the evidence upon which it relied in revoking the appellant's probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 21 days after the release of this opinion.
REMANDED WITH INSTRUCTIONS.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur.
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