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Smoke v. State3/30/2001
Leroy Harold Smoke, Jr., appeals from the trial court's revocation of his probation. At the State's request, we remand this case for the trial court to clarify on the record whether it complied with Rule 27.1, Ala.R.Crim.P., when it placed Smoke on probation.
The case action summary contained in the record indicates that Smoke pleaded guilty to felony driving under the influence of alcohol, see § 32-5A-191, Ala. Code 1975; that he was initially sentenced to 5 years' imprisonment; that that sentence was suspended, conditioned on his serving 18 months in a county detention facility and thereafter remaining under supervised probation for 3 years or until all of the conditions of his probation were met; and that the trial court later suspended Smoke's remaining jail sentence and continued the requirement of supervised probation for 3 years or until all of the conditions of his probation were met. After a hearing, the trial court entered the following order in the case action summary:
"Defendant appeared before the Court for revocation hearing with ... attorney. Charged violations of probation are that Defendant was arrested in Middleton, Tennessee for Public Intoxication and Violation of Open Container Law, and that Defendant left the State of Alabama without permission.
Based on the fact that the Defendant's presence in Tennessee is substantiated by copy of arrest report from Hardeman County Sheriff's Department and the sworn testimony of .... Probation Officer that Defendant had been instructed not to leave the state and that Defendant had not been issued a travel permit, nor had Defendant ever requested a travel permit, Probation Revoked and 5-year sentence put into effect. Defendant to receive maximum drug and alcohol treatment while incarcerated.
Defendant advised of right to appeal."
The transcript of the revocation hearing contains the following colloquy between the trial court, Smoke, and Smoke's probation officer:
"THE DEFENDANT: ... At no time has [the probation officer] or anyone with the court told me that I couldn't go out of state as part of my conditions. I thought honestly if I stayed out of trouble, I thought I was on probation for [driving under the influence]. I was under the impression that as long as I wasn't drinking or driving or creating any felonies, that I was okay. No one has ever said you have got to do this or you have got to do that. I didn't sign any papers saying I had to do this or do that.
"....
THE COURT: Well, based upon the new charges, based upon your failure to comply with the conditions by leaving the state, your probation is ordered revoked and your sentence put into effect. Ordered to receive maximum drug and alcohol treatment while you are incarcerated.
"....
THE DEFENDANT: Your Honor, may I please say something? I am ignorant of the law, and according to what I have read in the rules of the court, it says a person who is on probation cannot be revoked for conditions that he has never been served a written copy, that he has to have signed according to Alabama Rules of Court. If that is not done, he cannot be revoked for the conditions. I would ask Your Honor to consider that, to look into that. If that's so, I can't see how you can revoke me on it.
THE COURT: Well, you failed to comply with the conditions that were set out in court. Do you have a copy of the conditions? Ordinarily you have.
[THE PROBATION OFFICER]: I should. I don't see it in the file.
THE COURT: Mr. Smoke, you have a right to appeal if you want to, if you choose to do that."
Rule 27.1, Ala.R.Crim.P., provides i
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