Jenkins v. State, 6 Div. 952

• Decision Date: 06 March 1979
• Docket Number: 6 Div. 952
• Citation: 368 So.2d 329
• Parties: Lovell JENKINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 329

368 So.2d 329

Lovell JENKINS v. STATE.

6 Div. 952.

Court of Criminal Appeals of Alabama.

March 6, 1979.

Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

This is an appeal from revocation of probation in three cases of burglary in the second degree, grand larceny, and buying, receiving, concealing or aiding in concealing; for which appellant, an indigent, received three two-year sentences to run consecutively. After entering pleas of guilty to the charges against him, appellant was placed on probation for five years on May 19, 1977.

On May 15, 1978, the Circuit Court of Tuscaloosa County entered the following order:

"It being made to appear to the Court that the probationer herein is delinquent as such, has violated the terms and conditions of probation, has absconded, has failed to make reports to probation officer, is reputed to have violated the criminal laws, has been idle and not gainfully employed, has been drinking intoxicating liquors and consorting with associates of bad repute and that a hearing should be had to determine whether probation herein should be revoked or other action taken by the Court. It is, therefore, the order and judgment of the Court and it is ordered and adjudged by the Court that probationer herein is delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationer's probationary period be and hereby is tolled and stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of the charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside.

"Done and ordered this 15 day of May, 1978."

On August 11, 1978, appellant's probation was revoked in one of his cases, following a hearing, and the trial court placed him on a new probationary period of five years with a special condition of probation being confinement for twelve months in the drug and alcoholic treatment center at Bryce Hospital. Appellant was discharged from Bryce on September 8, 1978.

On September 21, 1978, appellant's probation was revoked in all three cases following an abbreviated hearing at which no evidence was presented. Those proceedings are set out below in their entirety.

"THE COURT: This is cases number 6441, 6442 and 6443. We have been working with Mr. Lovell Jenkins for some time now trying to get him to straighten out but our efforts have been to no avail. He was sent out to Bryce Hospital for the program out there and I have been advised by the authorities there that they couldn't do anything with him and that he has refused to co-operate and he has been given notice of this hearing, has he not?

"MR. CHANDLER: Judge, we are aware of the charges listed on the report dated May 10, 1978.

"THE COURT: Well, we are really at the end of the rope so to speak. I don't know of anything else to do other than go ahead and revoke him. Do you have anything to say?

"MR. CHANDLER: Judge, he stands before you today charged with six charges mainly involving where he lived, where he didn't work, failure to pay supervision fees, failure to pay court costs and two offenses of public drunkenness that he got five days apiece for in Birmingham and Lovell of course if you don't work it is kind of hard to pay your court costs and supervision fees.

"THE COURT: Well, we have been more than lenient with Lovell really. What do you say, Mr. D.A.?

"MR. HUDSON: He seems to be able to make enough money to drink off of, Your Honor. I am not in any sense supporting the sole reason of failure to pay supervision fees. That is really the least of them although it is a valid charge for revocation, Your Honor, but I think his history is unequivocally one of being unable to co-operate at all with any of the authorities who are trying to help him. We have tried to give him as much of a break as we can. He wouldn't work with the probation officer. We tried to work him into the Bryce program out there and he wouldn't co-operate with them. The State can't think of anything else to do in the matter but revoke him.

"THE COURT: I feel like I have no alternative rather than to revoke him, Mr. Chandler. Do you have anything to say why your probation should not be revoked?

"MR. JENKINS: Yes, sir, I believe my peoples have been on my side one hundred percent since I have been locked up and they recognize how much the fee is. I talked to Matilda today and she wanted to know how much the fee is and I believe she would be willing to pay it for me.

"THE COURT: Well, this thing has been strung out long enough. It is the order, judgment and decree of the Court that the probation previously extended to you in case 6441-B, 6442-B, and 6443-B be and the same are hereby ordered revoked. I hope you go down and try to straighten up your life.

"MR. CHANDLER: Your Honor, we would like to state for the record we have denied these charges and we continue to deny these charges and we would like to give notice of appeal at this time.

"THE COURT: All right.

"MR. CHANDLER: And ask that he be allowed to appeal in forma pauperis because he is indigent and ask that we be allowed to represent him on that appeal.

"THE COURT: He has had notice of this hearing?

"MR. HUDSON: Yes, sir.

"THE COURT: We really don't have much of a choice. I went way out on a limb to send him out to Bryces. He wouldn't co-operate with the people out there. We don't like to revoke probation but sometimes you don't have much choice. Well, that will be it, thank you, gentlemen.

"MR. CHANDLER: Thank you, Judge."

The trial court thereupon entered the following order:

"September 21, 1978. The question of alleged misconduct of probationer Lovell Jenkins herein coming on to be heard in open Court on this...