Fiorella v. State
| Decision Date | 02 February 1960 |
| Docket Number | 6 Div. 730 |
| Court | Alabama Court of Appeals |
| Parties | Sam A. FIORELLA v. STATE. |
Gibson & Hewitt, C. E. Huey and M. C. Zanaty, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
This is an appeal from an order below reading partially:
'And on this the 16th day of April, 1959, the Court having heard the testimony in this case, and upon it being shown to the Court that the defendant has violated the terms of his probation, it is ordered by the Court that said probation be and the same is hereby revoked and his sentence put into effect.' 1
Fiorella had been charged and convicted of a lottery law violation for which he was sentenced to twelve months hard labor. September 25, 1958, the trial judge, upon consideration of Fiorella's application and of the probation officer's report thereon, ordered the execution of sentence suspended for five years 'pending the good behavior of the defendant.' 2
April 8, 1959, upon a showing of probable probation violation, the trial judge ordered Fiorella's arrest and set Fiorella's hearing as to revocation or not for April 16, 1959. After hearing testimony, the judge made the revocation order set out at the beginning.
Under the evidence, the trial judge could have properly inferred that Fiorella had, on March 15-16, 1959, frequented the 'Old McCoy Place' in Shelby County at a time when gambling was going on there. Also, one witness stated Fiorella took a drink of whiskey: Shelby is a dry county.
The assignments of error brought forward in brief are stated to involve the following:
'A. Did the trial Court grossly abuse his discretion by overruling the various motions of the appellant?
'B. Did the appellant have a legal hearing within contemplation of the law, when it is apparent that the trial Court had a predetermined or fixed opinion as to the trial Court's decision to revoke appellant's probation prior to hearing all of the evidence in the case?
'C. Did the trial Court commit a gross abuse of discretion in revoking appellant's probation?
At the outset of the transcript of evidence, we find Fiorella's counsel making a motion that the hearing be postponed pending the outcome of the case made against him in Shelby County on account of the raid of the night of March 15-16, 1959.
It was argued there (and here) that to deny this motion would be to put Fiorella in a position where, if he defended himself in the probation hearing (presumably taking the stand in his own behalf), he might give incriminating testimony against himself which could be used in his Shelby County trial.
The court properly denied continuance. Fiorella's argument ignores that he was under no compulsion to testify in either proceeding.
As to a probationer's status, it occurs to us that he has, by seeking mercy, imposed upon himself the highest duty in good faith to behave himself so as to merit the confidence which the trial judge has put in him. Therefore, when formally accused and confronted with a prima facie showing of dereliction of that duty, if he chooses to be silent, we think that the failure to testify undoubtedly may be considered by the judge. 3
Another motion was made requesting a postponement because newly employed counsel for Fiorella came to the conclusion that the solicitor, contrary to their expectations, was relying entirely upon what happened in Shelby County, and that, due to insufficient time for preparation, he had not had time to investigate that matter adequately in order to defend Fiorella. The fact that counsel came into the case at a late date, of course, is something over which they had no control; but Fiorella did. A probationer arrested on a gambling raid on the 16th of March, who is picked up on a probation revocation warrant on April 8, has, in the absence of some clear and convincing excuse, had adequate time to prepare himself for a hearing held April 16.
What we have said above adequately covers Fiorella's motion to exclude the State's evidence. We consider that the proof was sufficient for a reasonable mind to have been satisfied of Fiorella's presence in a gambling establishment, a clear cut breach of a condition of his probation. 4
Fiorella also moved that the court keep the matter under advisement (without public decision) until after Fiorella's trial in Shelby County, since publicity might prejudice jurors in that county against Fiorella.
We consider that the problem of possible prejudice in the Shelby County trial would be one addressed to the circuit judge trying Fiorella in that county, rather than good ground to delay a probation revocation hearing in Jefferson County. There is no double jeopardy:
* * *' United States ex rel. MacLaren v. Denno, D.C., 173 F.Supp. 237, 241.
The next major contention was that the judge predetermined Fiorella's guilt before hearing all the evidence, and accordingly that Fiorella did not have a fair hearing as required by Code 1940, T. 42, § 24.
In McCain v. Sheppard, 33 Ala.App. 431, 34 So.2d 225, it is pointed out that a revocation hearing is mandatory and jurisdictional to an order revoking probation.
A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence. We have reviewed the entire record here and we are at the conclusion that the trial judge afforded Fiorella this opportunity.
We have reviewed under the standard prevailing in civil causes. See discussion in Bernal-Zazueta v. United States, 9 Cir., 225 F.2d 60, at page 68, headnotes 6-9. Thus, in Williams v. State, supra, we noted the onus on the State was not that borne in criminal cases. Also see footnote 3 above. From the Note, Legal Aspects of Probation Revocation, 59 Col.L.Rev. 311, we quote (p. 332), omitting footnotes:
'E. Standards of Proof and Rules of Evidence
'While the state clearly bears the burden of proving violation of a condition, no probation statute specifies the degree of proof necessary to meet this burden. Courts have differed as to what the standard should be, although proof beyond a reasonable doubt is generally not required. The most common judicial formulation requires evidence which reasonably satisfies the judge.
See also R. v. Pine, (1932) 24 Cr.App.R. 10--breach of recognizance.
Upon ruling on the first motion of continuance at the beginning of the hearing, the trial court made certain remarks, which Fiorella claims showed the judge had prejudged him, viz.:
'The Court: Mr. Gibson, I am going to overrule your motion, because I think his record--Sam's record speaks for itself, and I think I have already bared my breast to Sam and have done everything I could to help Sam in this case, and give him probation when he was not entitled to it, and did it for one reason, and that is to keep him from being deprived of due process of law.
In addition to the statement that Fiorella was given probation, to prevent him from being deprived of due process of law, the record shows that on the original criminal proceeding in Jefferson County Fiorella was prevented from presenting to this court on his appeal here (6 Div. 545, November 19, 1957, no opinion) a transcript of the evidence because, pending notice of appeal and perfection of record below, the court reporter died and another reporter was unable to read the notes.
Fiorella contends that apparently it was bootless for his counsel to argue at the hearing's close, because the judge indicated, at the outset of the delivery of his opinion, that he had spoken to Mr. Deason, the deputy solicitor, and Mr. Grant, the probation officer, beforehand with respect to the problem of whether or not Fiorella's merely being charged with a crime in Shelby County was (before conviction) sufficient to justify the Jefferson County probation revocation proceeding.
Fiorella's counsel, in all fairness, says, 'It is not clear from the record what the court previously said to Mr. Deason and Mr. Grant.' Accordingly, we will not presume any sinister motivation nor discussion improper because not in Fiorella's presence. We think the presence of Mr. Deason and Mr. Grant with the trial judge can be readily explained by the necessarily ex parte proceedings which led to the issuance of the show-cause order initiating the revocation hearing. The probation officer and the deputy solicitor were under a duty to bring the matter, even though originating in hearsay, to the attention of the judge to begin a proceeding such as this.
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