Nieto v. State

• Decision Date: 26 April 2002
• Parties: Roddfo Guerrero NIETO v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

842 So.2d 748

Roddfo Guerrero NIETO v. STATE of Alabama.

CR-01-0184.

Court of Criminal Appeals of Alabama.

April 26, 2002.

Scott K. Hedeen, Dothan, for appellant.

William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.

PER CURIAM.

On October 21, 1998, the appellant, Roddfo Guerrero Nieto, pleaded guilty in the Houston District Court to driving under the influence of alcohol. That same day, the district court sentenced Nieto to 12 months' hard labor; that sentence was suspended, and Nieto was ordered to serve 60 days in jail followed by 24 months' probation. The district court further ordered the appellant to pay $2,822.71 in fines and costs. On March 31, 1999, the trial court ordered the issuance of a writ of arrest because Nieto apparently had failed to pay his fine and, therefore, had violated the terms of his probation. On September 28, 2001, the trial court held a hearing and revoked Nieto's probation "for failure to pay."¹

Nieto appeals directly from the judgment of the Houston District Court, as authorized by Rule 30.2, Ala.R.Crim.P. The district court certified the following question of law as the sole issue for review in this case: "If neither the sentencing portion of the Uniform Traffic Ticket and Complaint nor the Case Action Summary reflect when a defendant, who is on a suspended sentence, is to pay the fines and costs, when is the payment of the fines and costs due?" (C. 25.)

Nieto argues that "the absence of an order to pay at once and the absence of a pay by date or payment plan meant that [he] could pay at any time during his twenty-four-month suspended sentence." (Appellant's brief at p. 6.) Citing Rule 26.11(d), Ala.R.Crim.P., the State contends that the "fines and costs were due and payable `immediately after the pronouncement of sentence as preferred.'" (State's brief at p. 7.)

Rule 26.11(d), Ala.R.Crim.P., provides:

"If the defendant cannot pay the costs, fine, and/or restitution immediately after pronouncement of the sentence as preferred, the court may permit payment of the costs, fine, and/or restitution, at some later date, or in specified installments."

We start with the basic premise that words used in court rules must be given their plain meaning. Ex parte City of Montgomery, 721 So.2d 261 (Ala.Crim. App.1998). Rule 26.11(d) clearly suggests that the preferred method of payment for court-ordered moneys is immediately after the pronouncement of sentence, unless the court permits payment at some later date or in installments. Furthermore, in Dutell v. State, 596 So.2d 624, 625 (Ala.Crim.App. 1991), we stated:

"The Alabama Rules of Criminal Procedure were promulgated by the Alabama Supreme Court pursuant to its rulemaking power. In construing these rules, this court will attempt to ascertain and to effectuate the intent of the Alabama Supreme Court as set out in the rule. See generally Shelton v. Wright, 439 So.2d 55 (Ala.1983)

. This intent may be gleaned from the language used, the reason and necessity for the rule, and the purpose of the rule. Id. Rule 1.2, [Ala.R.Crim.P.], states that the rules `shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.'"

In light of the plain meaning of Rule 26.11(d), Ala.R.Crim.P., and this Court's rationale in Dutell, 596 So.2d at 625, we hold that when the sentencing portion of the Uniform Traffic Ticket and Complaint and the case action summary sheet are silent as to when a defendant is to pay fines and costs, those fines and costs are due immediately after pronouncement of sentence. However, we note that the facts in the instant case deserve a closer look by this Court beyond the narrow question submitted by the district court. Specifically, we must look to whether the appellant's probation was revoked in compliance with Rule 27.1, Ala. R.Crim.P.

As discussed earlier in this opinion, Rule 26.11(d), Ala.R.Crim.P., clearly pertains to a trial court's discretion to allow deferred and installment-payment plans for defendants who cannot pay their cost, fines, or restitution immediately following the pronouncement of sentence. The rule does not, however, pertain to a defendant's due process rights regarding the revocation of his probation, which is the ultimate issue in this case.

Payment of a fine is certainly an acceptable condition to remaining on probation. See, e.g., Rule 27.1, Ala.R.Crim.P., Committee Comments. Moreover, Rule 26.11(f)(2), states:

"If a defendant on probation fails to pay a fine or restitution, or any installment thereof, within the prescribed time, the clerk shall give notice of such delinquency to the defendant's probation officer."

(Emphasis added.) This rule clearly contemplates the existence of a payment due date as a condition to a defendant's continuing on probation. Rule 27.1, Ala. R.Crim.P., requires that, when a trial court grants probation,

"[a]ll conditions of probation must be incorporated into a court's written order of probation, and a copy thereof must be given to the probationer. In addition, the court or probation officer shall explain to the probationer the purpose and scope of the imposed conditions and regulations and the consequence of probationer's violation of those conditions and regulations."

The Committee Comments to Rule 27.1, Ala.R.Crim.P., state:

"Providing the probationer with both a written copy of imposed conditions and regulations and an explanation thereof aids in the reinforcement of the probationer's understanding of probation. The rule should alleviate the court's and the probation officer's supervisory burden by eliminating some unnecessary violations caused by probationer's lack of understanding."

Finally, Rule 27.6(e), Ala.R.Crim.P., clearly states that "[p]robation shall not be revoked for violation of a condition or regulation if the probationer had not received a written copy of the condition or regulation." See also Smoke v. State, 812 So.2d 387 (Ala.Crim.App 2001),

opinion on remand 812 So.2d at 390.

The district court's certification to this Court refers to, and adopts, the stipulation of facts jointly submitted by the appellant and by the State. The certification also states that those factual stipulations truly and accurately reflected the facts as presented to the district court in ...