Dixon v. State

• Decision Date: 28 January 2005
• Docket Number: CR-03-1889.
• Citation: 912 So.2d 292
• Parties: Eric DIXON v. STATE of Alabama.
• Court: Alabama Supreme Court

912 So.2d 292

Eric DIXON v. STATE of Alabama.

CR-03-1889.

Court of Criminal Appeals of Alabama.

January 28, 2005.

Terry Lee Dempsey, Russellville, for appellant.

Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

BASCHAB, Judge.

On June 7, 2002, the appellant, Eric Dixon, pled guilty to one count of unlawful possession of a controlled substance and two counts of first-degree unlawful possession of marijuana. The trial court sentenced him to serve concurrent terms of ten years in prison, but split his sentences and ordered him to serve fifteen months followed by five years on supervised probation. In 2004, revocation proceedings were initiated. After conducting a revocation hearing, the circuit court revoked the appellant's probation and reinstated his original sentences. It then split those sentences and ordered him to serve an additional twenty-four months followed by three years on probation. This appeal followed.

I.

The appellant argues that the circuit court erroneously imposed split sentences in his cases after it revoked his probation. Specifically, he contends that he should have been allowed to serve his original sentences because he indicated that he wanted to decline the split sentences.

Initially, we must determine whether the circuit court had the authority to impose split sentences after it revoked the appellant's probation. In its written revocation order, the circuit court noted that the appellant had already served fifteen months. In Hollis v. State, 845 So.2d 5, 6-7 (Ala.Crim.App.2002), we held:

"[A] trial court does not have jurisdiction to impose a sentence not provided for by statute. Therefore, as an issue concerning subject-matter jurisdiction, "`[a]n illegal sentence may be challenged at any time."' Johnson v. State, 722 So.2d 799, 800 (Ala.Crim.App.1998) (quoting J.N.J., Jr. v. State, 690 So.2d 519, 520 (Ala.Crim.App.1996)). See also Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994) (`Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.').

"Second, § 15-18-8(c), Ala.Code 1975, provides:

"`Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsection (a), the court shall retain jurisdiction and authority throughout said period to suspend that portion of the minimum sentence that remains and place the defendant on probation, notwithstanding any provision of the law to the contrary and the court may revoke or modify any condition of probation or may change the period of probation.'

"(Emphasis added.) See also Davis v. State, 644 So.2d 44, 44 (Ala.Crim.App.1994) (`Because Davis had already served the minimum period of confinement, the trial court was without jurisdiction to consider the untimely motion for modification; therefore the order denying the motion was void and unappealable. § 15-18-8(c), Ala.Code 1975. See also Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991) (trial court loses all jurisdiction to modify sentence if the request to modify a sentence is not filed within 30 days of sentencing).').

"Although the trial court retained jurisdiction over the split sentences throughout Hollis's period of confinement, it no longer had jurisdiction over the sentences after he was released. Therefore, it was not within the purview of the trial court to alter or amend Hollis's original sentences. Its only sentencing option was to impose that portion of the sentence that had been suspended at the original hearing — 13 years. See § 15-22-54(e)(2), Ala.Code 1975. The trial court did not have jurisdiction to alter or amend the reinstated balance sentence of 13 years, that is, to suspend or split the remaining 13-year sentence."

Quoting § 15-18-8(c), Ala.Code 1975, in Hollis, this court held that the circuit court loses jurisdiction over a defendant's split sentence once the defendant completes the period of incarceration. However, a closer reading of § 15-18-8(c), Ala.Code 1975, makes it clear that this section merely authorizes a circuit court to suspend any portion of the period of confinement, to modify the conditions of probation, and to revoke probation even if the defendant had not begun serving his period of confinement or if the defendant is currently serving his period of confinement. Section 15-18-8(c), Ala.Code 1975, does not address the alternatives available to a circuit court when it finds that a defendant has violated the terms and conditions of his probation and does not address the circuit court's jurisdiction over a defendant who has served the period of confinement. Rather, as we discuss below, § 15-22-54(d), Ala.Code 1975, provides for the initiation of revocation proceedings against a defendant who is on probation and sets forth the alternatives available to a circuit court when it finds that a defendant has violated the terms and conditions of his probation.

In reaching the decision in Hollis, this court relied on Davis v. State, 644 So.2d 44 (Ala.Crim.App.1994). However, Davis dealt with a circuit court's authority to entertain a motion to modify a sentence that Davis filed more than thirty days after his probation had been revoked and after he had already completed serving his minimum period of incarceration. Because it did not address the circuit court's jurisdiction over a split sentence during revocation proceedings, we erroneously relied upon Davis in reaching our conclusion in Hollis.

In Hollis, this court also relied on Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991), in which we held that, absent the filing of a motion for a new trial or a motion to modify a sentence within thirty days after sentencing, a trial court loses jurisdiction to amend an original sentence thirty days after the sentence is imposed. However, Massey did not involve the court's modification of the terms and conditions of probation or a split sentence during revocation proceedings. Therefore, Massey does not support the proposition for which we cited it in Hollis.

Further, in Hollis, this court held that, pursuant to § 15-22-54(d)(2), Ala.Code 1975, when a circuit court finds that a defendant has violated the terms and conditions of his probation, that court may only reinstate the suspended portion of the original term of confinement.¹ However, this holding ignores the remaining language of § 15-22-54(d), Ala.Code 1975, which provides, in pertinent part:

"(1) If the defendant violates a condition of probation or suspension of execution of sentence, the court, after a hearing, may implement one or more of the following options:

"a. Continue the existing probation or suspension of execution of sentence.

"b. Issue a formal or informal warning to the probationer that further violations may result in revocation of probation or suspension of execution of sentence.

"c. Conduct a formal or informal conference with the probationer to reemphasize the necessity of compliance with the conditions of probation.

"d. Modify the conditions of probation or suspension of execution of sentence, which conditions may include the addition of short periods of confinement.

"e. Revoke the probation or suspension of execution of sentence.

"(2) If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence, including any option listed in subdivision (1)."

(Emphasis added.)

Finally, the opinion in Hollis ignores previous cases in which we recognized a circuit court's authority to split a defendant's sentence after it revokes the defendant's probation. In Parker v. State, 648 So.2d 653, 654-56 (Ala.Crim.App.1994), we addressed the circuit court's authority to impose a split sentence after it revokes the defendant's probation as follows:

"This is an appeal from a revocation of probation. The appellant, Samuel Labarron Parker, contends that the circuit court was without authority to increase his term of confinement in the penitentiary upon the revocation of his probation.

"In 1991, the appellant pleaded guilty to and was convicted of, possession of a forged instrument in the second degree. His sentence of five years' imprisonment was suspended and he was placed on probation. In February 1994, the appellant was arrested on a charge of kidnapping. His probation was revoked in March 1994, based on evidence that he had committed a kidnapping and a burglary. After revoking his probation, the circuit court ordered the appellant to serve a `split' sentence on his 1991 possession case.

"....

"... [A] reading of Ala.Code 1975, § 15-22-54, makes it clear that the trial court did have the authority to `split' the appellant's original sentence on revocation of probation. Section 15-22-54(d), Ala.Code 1975, in pertinent part, provides:

"`(2) If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence....

"`(3) If revocation results in a sentence of confinement, credit shall be given for all time spent in custody prior to revocation. Full credit shall be awarded for full-time confinement in facilities such as county jail, state prison, and boot camp. Credit for other penalties, such as work release programs, intermittent confinement, and home detention, shall be left to the discretion of the court, with the presumption that time spent subject to these penalties will receive half credit. The court shall also give significant weight to the time spent on probation in substantial compliance with the conditions thereof. The total time spent in confinement may not exceed the term of confinement of the original sentence.'

"Construed in the context, the sentence `[t]he total time spent in confinement may not exceed the term of confinement of the original sentence,' clearly refers to the total time a defendant has spent in confinement — whether it be in full-time...