McCoo v. State, CR-03-0509.
Decision Date | 25 June 2004 |
Docket Number | CR-03-0509. |
Citation | 921 So.2d 446 |
Parties | Carl Ray McCOO v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Marion Chartoff, Montgomery, for appellant.
Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellee.
Carl Ray McCoo entered a plea of guilt to the charge of conspiracy to commit robbery in the first degree on August 22, 2001. McCoo was sentenced to 10 years' imprisonment, but that sentence was split and McCoo was ordered to serve 3 years' imprisonment followed by 3 years' probation. McCoo's sentence was then suspended, and he was placed on probation until May 22, 2006.
On December 17, 2003, McCoo's probation was revoked and his 10-year sentence was reinstated, following a probation-revocation hearing. McCoo's probation officer declared McCoo delinquent and alleged that McCoo had violated the first condition of his probation—to "refrain from any illegal activity"—by committing a new offense, robbery in the first degree.
A probation-revocation hearing was held on December 17, 2003. Detective W.D. Favor with the Montgomery Police Department testified at the hearing. Det. Favor stated that he responded to a robbery-in-progress call at the Pace Car gasoline station on Troy Highway in Montgomery on November 6, 2003. According to Det. Favor, when he arrived at the scene, he spoke with two witnesses and the clerk of the store, and he determined that two black males had entered the Pace Car, had pointed a gun at the clerk, had removed the cash drawer, and had fled. The clerk testified that one of the men had "white paste all over his face, a red jacket and [was] armed with a dark handgun." Det. Favor related that the witnesses informed him that the two robbers, along with two other men, left the scene in a blue Cadillac automobile. The Cadillac was later stopped by other police units, and McCoo and his accomplice jumped from the car and took off running. When McCoo was apprehended he was found to have Noxzema brand cold cream on his face and an open can of Noxzema was found in the backseat of the Cadillac. The cash box from the Pace Car was also found in the car. The delinquency report, prepared by McCoo's probation officer, Ruth Peters, revealed that McCoo was identified as being the robber who had a gun and who pointed it at the clerk; it also revealed that a gun was found near where McCoo was seen running when police attempted to apprehend him. McCoo did not object to the testimony, and he presented no evidence in his own behalf. The trial court informed McCoo that his probation was being revoked and informed McCoo that he had the right to appeal. Following the hearing, the trial court entered an order on the docket stating:
In Evans v. State, 794 So.2d 1234, 1236-37 (Ala.Crim.App.2000), we stated:
McCoo raises two issues on appeal. He contends that the trial court considered hearsay evidence alone, which, he says, denied him the opportunity to confront and cross-examine witnesses against him, and he contends that the trial court's order revoking his probation fails to comply with due-process requirements by failing to set forth the reason for the revocation and the evidence the trial court relied upon in revoking his probation. McCoo failed to raise his hearsay and confrontation objections at the trial-court level, and because these issues do not fall within one of the stated preservation exceptions, the issues are not properly before us.1
As for McCoo's challenge to the adequacy of the revocation order, this issue may be raised on appeal, even if not first presented to the trial court. McCoo cites Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Wyatt v. State, 608 So.2d 762 (Ala.1992); and other authority in support of his argument that the trial court's order was inadequate.
Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). Rule 27.6(d)(1), Ala. R.Crim. P., states:
Rule 27.6(f) states: "The judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation."
In James v. State, 729 So.2d 364 (Ala.Crim.App.1998), the trial court revoked the appellant's probation because he had violated four conditions of his probation. The trial court stated in its revocation order that it considered the "`testimony and arguments of counsel [and] adjudged the defendant guilty'" of being in violation of the terms of his probation. James, 729 So.2d at 365. In remanding the case, we wrote:
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McCoo v. State
...Court granted the State's petition for a writ of certiorari to review the opinion of the Court of Criminal Appeals in McCoo v. State, 921 So.2d 446 (Ala.Crim.App.2004). In McCoo, the Court of Criminal Appeals remanded the case for the trial court to enter a probation-revocation order that c......
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Thomas v. State
...apply to probation revocation hearings." Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998); see also McCoo v. State, 921 So.2d 446, 448 (Ala.Crim.App.2004), reversed on other grounds, 921 So.2d 450 (Ala.2005)(holding that a hearsay claim was not preserved for review on appeal because i......
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McCoo v. State, CR-03-0509.
...the revocation hearing was fully stated in our original opinion as was the contents of the trial court's written order. McCoo v. State, 921 So.2d 446 (Ala. Crim.App.2004). It is clear that there was sufficient evidenced presented of the robbery, which was the reason for the revocation, by t......