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Ewing v. State9/28/2001
ing his probation was inadequate because, he says, the court failed to state what evidence it had relied on in revoking his probation. (Issue III in Ewing's brief.) Although Ewing did not object to the sufficiency of the trial court's order at trial, "`the adequacy of a written order of revocation can be raised for the first time on appeal.'" Durr v. State, [Ms. CR-99-2641, May 25, 2001], ___ So. 2d ___, ___ (Ala. Crim. App. 2001), quoting Owen v. State, 728 So. 2d 673, 680 (Ala. Crim. App. 1998).
It is well settled that "an order revoking probation must be written and must set forth the evidence relied upon, as well as the reason for the revocation in order for due process requirements to be met." T.H.B. v. State, 649 So. 2d 1323, 1324 (Ala.Cr.App. 1994). See also Wyatt v. State, 608 So. 2d 762 (Ala. 1992); and Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975). The trial court in this case used a local printed form to record its order. That order read, in pertinent part:
"The Court receives evidence of the following alleged probation violations from the sources listed:
"Probation officer and DA: (1) New DUI [driving under the influence] offense.
"....
"Based upon the evidence received by the Court, the Court:
"Is `reasonably satisfied' that the probationer did violate the terms of his probation in the following manner:
"New DUI." (C. 11.)
Although the trial court's order properly stated the reason for revoking Ewing's probation -- that Ewing had committed the new offense of driving under the influence -- it failed to adequately state the evidence the court relied on in revoking Ewing's probation. It is well settled that "general recitations by the trial court to its consideration of the `testimony,' `sworn testimony,' or `relevant and competent evidence' presented at the revocation hearing insufficient for purposes of satisfying" due process requirements. James v. State, 729 So. 2d 364, 365 (Ala. Crim. App. 1998). Furthermore, "the mere statement in an order that the trial court considered the evidence presented by the state does not satisfy the due process requirements of Rule 27.6(f), Ala.R.Crim.P." Blankenship v. State, 749 So. 2d 481, 482 (Ala. Crim. App. 1999). Here, the trial court stated only that it had relied on evidence from the "probation officer and DA." This statement was not sufficient to satisfy due process. See, e.g., Norwood v. State, [Ms. CR-99-2331, March 30, 2001] ___ So. 2d ___ (Ala. Crim. App. 2001) (trial court's order revoking probation was insufficient where the order stated only that the trial court had relied on the testimony of two witnesses and did not identify what that testimony was).
Therefore, based on Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975), and Wyatt v. State, 608 So. 2d 762 (Ala. 1992), we must remand this cause to the trial court for that court to prepare a written statement of the evidence it relied on in revoking Ewing's probation. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.
REMANDED WITH DIRECTIONS.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur.
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