Attaway v. State9/27/2002
The appellant, Tony Allen Attaway, appeals from the Etowah Circuit Court's revocation of his probation. The record reveals that Attaway was charged with one count of unlawful breaking and entering a motor vehicle, a violation of § 13A-8-11(b), Ala. Code 1975, and one count of second-degree theft, a violation of § 13A-8-4, Ala. Code 1975. On February 22, 1994, Attaway pleaded guilty to both offenses. He was sentenced as a habitual offender with three prior felony convictions to concurrent 15-year terms of imprisonment; the sentences were split and he was sentenced to concurrent terms of 2 years' imprisonment, with the balance of the sentences to be served on supervised probation. The court also ordered Attaway to pay court costs, attorney fees, a $50 assessment to the Crime Victims Compensation Fund for each conviction, and $608 in restitution resulting from the theft conviction.
On January 23, 2002, Attaway's probation officer filed a delinquency report, alleging that Attaway had failed to comply with the conditions of his probation, namely, that he had been arrested and charged with a number of new offenses. The delinquency report also alleged that Attaway had failed to pay court-ordered moneys and supervision fees. Following a two-part revocation hearing on February 20, 2002, and March 21, 2002, the circuit court revoked Attaway's probation. The revocation order stated:
"The Court finds from substantial evidence and testimony that the Defendant has failed to comply with the terms and conditions of his/her probation, to-wit:
"Charge No. 1, Violation of Condition No. 1, New Offense -- Burglary 3rd;
"Charge No. 2, Violation of Condition No. 1, New Offense -- Theft of Property, 3rd;
"Charge No. 3, Violation of Condition No. 1, New Offense -- Resisting Arrest;
"Charge No. 4, Violation of Condition No. 1, New Offense -- Disorderly Conduct;
"Charge No. 5, Violation of Condition No. 15, Pay Fines, Court Costs, Restitution, Assessments and other court-ordered monies.
"The Court finds there is sufficient proof that the Defendant breached the foregoing condition(s) of his probation, and it is ordered that the Defendant's probation be revoked and the Defendant is to commence serving the sentence imposed by this Court." (C. 40.) This appeal followed.
Attaway contends that the circuit court's revocation of his probation should be reversed because, he says, (1) the State failed to present sufficient evidence indicating that he had violated the conditions of his probation, and (2) the court's order revoking his probation was deficient because it did not contain a statement of the evidence relied on and the reasons for revoking his probation.
Attaway's claim that the State failed to present sufficient evidence that he violated the conditions of his probation is being raised for the first time on appeal.
"The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So. 2d 980, 983 (Ala.Cr.App. 1996), citing Taylor v. State, 600 So. 2d 1080, 1081 (Ala.Cr.App. 1992). This Court 'has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.' Puckett, 680 So. 2d at 983." Owens v. State, 728 So. 2d 673, 680 (Ala.Crim.App. 1998).
This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erred in failing to advise him of his right to reques
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