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State v. Fitzgerald6/8/2005
Facts and Procedural History
On October 29, 2002, the appellant pled guilty to the sale or delivery of cocaine in an amount of less than .5 grams, a class C felony. The trial court ordered the appellant to pay a $2000 fine and serve a three-year sentence, suspended on intensive probation after sixty days incarceration. Thereafter, on August 15, 2003, the appellant pled guilty to an additional count of the sale of cocaine in an amount of less than .5 grams, a class C felony. Instead of incarcerating the appellant for the offense and reinstating his original sentence, the trial court imposed an additional six-year suspended sentence to be served consecutively in Community Corrections and fined the appellant $3000. The appellant was also ordered to serve one year in drug court, with eligibility for furlough after ninety days of service or upon further orders of the drug court.
In June 2004 the appellant's probation officer filed a violation of probation warrant, stating that the appellant: (1) was arrested on June 8, 2004, for DUI, violation of the implied consent law, failure to carry a driver's license, and unlawful removal of a license plate; (2) had not reported his arrest for the June 8, 2004 charges; (3) had never verified employment; (4) had presumably moved without notification because his probation report and arrest warrant addresses differed; and (5) was delinquent in fine and fee payment. The warrant was amended in August 2004 to include an allegation that the appellant had not reported to his probation officer since June 3, 2004.
In a probation revocation hearing held in September of 2004, the appellant's probation officer testified that the appellant was specifically informed of and signed the rules of his probation. The appellant admitted that he violated his probation by: (1) receiving a new criminal charge; (2) not maintaining employment; (3) not reporting to his probation officer; and (4) not paying fines and fees. The trial court then interjected:
Well . . . I'm not sure why we're having this hearing to be honest with you.
We got a situation . . . where you were in drug court which is kind of the last stop. Most people when they get out, if they don't make it through drug court, go directly to jail. You kind of got a special consideration because of your medical condition. But you, I mean, you elected for whatever reason that you couldn't stand the pain, so you had to have [medication] so you couldn't complete the program.
All you've done from that point forward is to get into trouble, drinking, DUI, not reporting to [the probation officer], not paying, not verifying employment. You've just spiraled down and there's no reason for me not to revoke your probation, it just isn't.
I'm sorry that, you know, you may not think that's the best way to deal with your addiction, but I can deal with it very easily and that's to send you to jail and that's what I'm going to do. Probation is revoked.
At this point, the following colloquy ensued:
Defense Counsel: Your Honor, yes, I had more witnesses to call, and I would like to be heard.
The Court: I don't need to hear them. I've heard from him and I've heard enough. Defense Counsel: Then I'm going to ask for a bond for an appeal. I believe [the appellant] has a right to have witnesses heard at his case. We admitted to certain violations - -
The Court: He's admitted to the violations and nothing that - - who are you going to call, his parents?
Defense Counsel: His mother and his aunt and I want - -
The Court: His mother and his aunt, now how is that going to change my mind?
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