Owens v. State

• Decision Date: 14 August 1998
• Citation: 728 So.2d 673
• Parties: Brandy Keith OWENS v. STATE.
• Court: Alabama Court of Criminal Appeals

728 So.2d 673

Brandy Keith OWENS v. STATE.

CR-96-2316.

Court of Criminal Appeals of Alabama.

August 14, 1998.

Rehearing Denied November 20, 1998.

Certiorari Denied February 26, 1999.

Joseph J. Gallo, Daleville, for appellant.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

Alabama Supreme Court 1980452.

BROWN, Judge.

The appellant, Brandy Keith Owens, appeals the circuit court's denial of his petition for a writ of habeas corpus, in which he attacked the district court's revocation of his probation. The following dates and facts are relevant to the issue presented on appeal:

On July 22, 1993, the appellant pleaded guilty, in the Houston County District Court, to 11 counts of negotiating a worthless instrument, a misdemeanor offense. He was sentenced to 12 months' imprisonment for each conviction, the sentences to run consecutively. (C. 13.) The district court suspended the sentences, and placed the appellant on two years' probation on the condition that he pay fines, costs, remuneration to the Crime Victims Compensation Fund, and restitution, and that he attend a school for offenders who have negotiated worthless instruments ("NWNI School"). The district court ordered the appellant to begin making payments on September 1, 1993.

The district court found the appellant to be delinquent on his probation and issued alias warrants for his arrest on January 9, 1995, and January 31, 1995—approximately six months before July 22, 1995, the completion date for the appellant's probationary period. The warrants were not served until September 21, 1995.

On October 25, 1995—three months after July 22, 1995, the expiration date of the appellant's probation—the district court revoked the appellant's probation because he failed to pay the court-ordered assessments and because he did not attend NWNI School. Instead of putting the appellant in jail, however, the district court suspended its revocation order and added more conditions to his probation, including a condition that he make restitution payments of $200 per month starting on November 3, 1995.

On November 11, 1995, the district court issued an alias writ for the appellant's arrest because he did not make the payments that the Court had ordered on October 25, 1995. On July 2, 1997, the arrest warrant was served on the appellant.¹

On July 22, 1997, the district court conducted a revocation hearing, apparently revoking the appellant's probation and ordering the appellant to "serve out" his fines and costs in jail at the rate of $15 per day. The district court also entered a civil judgment in favor of the victim on each of the worthless checks, for the face amount of the check plus a service charge.

On July 25, 1997, the appellant filed a petition for a writ of habeas corpus in the Houston Circuit Court. In his petition, he argued that the district court did not have jurisdiction to revoke his probation because, he asserted, his probationary term had expired at the time of the July 22, 1997, revocation order. The appellant claimed that the district court conceded that it was without jurisdiction to revoke his probation, but that it ordered him incarcerated to "serve out" his fines and court costs. The appellant maintained that he was indigent and that the district court's incarcerating him solely to "serve out" his fines, restitution, and court costs violated Rule 26.11(i)(2), Ala.R.Crim.P., which provides that "[i]n no case shall an indigent defendant be incarcerated for inability to pay a fine or court costs or restitution."

The state argued that the district court did have jurisdiction to revoke the appellant's probation. In support of its position, the state asserted that the issuance of the alias warrant in January 1995—six months before the appellant's court-ordered probationary period was to expire—tolled the running of the appellant's probation period.

The circuit court denied the appellant's habeas petition. The circuit court found that the district court had jurisdiction to revoke the appellant's probation because, it concluded, the revocation proceedings were instigated in January 1995, when the alias warrants for the appellant's arrest were issued—during the appellant's two-year probation period. The circuit court also found that the appellant failed to raise the claim that the district court's incarcerating him solely to serve out his fines violated Rule 26.11(2), Ala.R.Crim. P.; however, the trial court indicated that it did not object to releasing the appellant so that he might resume working, provided that the appellant worked out an arrangement with the probation office.

I.

The appellant contends that the circuit court erred in denying his petition. He essentially reasserts the same arguments that he made in his petition—namely, that the district court did not have jurisdiction to revoke his probation because, he claims, his probationary period expired before the district court ordered the revocation and that the district court improperly ordered him to be incarcerated to "serve out" his fines despite his indigent status.

In order to determine if the circuit court properly denied the appellant's habeas petition, this court must first determine whether the district court had jurisdiction to revoke the appellant's probation. Section 15-22-54(a), Code of Alabama 1975, provides:

"The period of probation or suspension of execution of sentence shall be determined by the court, and the period of probation or suspension may be continued, extended, or terminated. However, in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant."

(Emphasis added.) Further, Rule 27.3(a), Ala.R.Crim.P., states that "[a]t any time during a term of probation, the court, for good cause shown, may extend the term of probation up to the maximum period permitted by law." (Emphasis added.) This Court has held:

"If the process for revoking probation has begun before the probationary period expires, the running of the probation period is tolled and the court continues to have jurisdiction over the probation. Young [v. State], 552 So.2d [879] at 880 [(Ala.Cr.App.1989)]. For the court to retain jurisdiction beyond probationary period, some overt or affirmative act to officially begin revocation proceedings must have occurred. Id. at 881; see also Watkins [v. State], 455 So.2d [160] at 163 [(Ala.Cr.App.1984)]."

Smitherman v. State, 639 So.2d 569, 570 (Ala.Cr.App.1993). (Emphasis added.) We must define the "maximum probation period" and clarify what constitutes the "overt or affirmative act" that officially begins the revocation proceedings and thus enables the court to retain jurisdiction to modify the probation.

In Peoples v. State, 439 So.2d 774, 775 (Ala.Cr.App.1983), this Court addressed an argument by a defendant that the trial court lost jurisdiction to revoke his probation because the warrant for his arrest for a probation violation was served after his probationary period had expired. In rejecting this argument this court stated:

"To follow the argument of appellant on this point to its logical conclusion would be to say that a probationer could leave the state and violate the terms of his probation without retribution if he did not come back until his original probationary term was concluded. This was surely not the purpose of the Legislature when it enacted the probation provisions of the Alabama Code nor was it the purpose of this court in writing Wilson v. State, 417 So.2d 627 (Ala.Cr.App.1982). As a practical matter, the running of the period of probation must be considered tolled when a warrant of arrest for violation of probation is issued by the court or when, in the language of § 15-22-54, Code of Alabama 1975, `... a written statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation ...' shall have been delivered to an officer with power of arrest together with the request of the probation officer that the probationer be arrested. Even the failure to execute the arrest warrant until the expiration of the period of probation would not render that warrant invalid under § 15-22-54 of the Code."

(Emphasis added.)

In Watkins v. State, 455 So.2d 160 (Ala. Cr.App.1984), the defendant argued that the trial court lacked jurisdiction to revoke his probation because the bench warrant for his arrest was not issued until after his probationary period had expired. The state maintained that a notation in the probation officer's file, entered during the defendant's probationary period and indicating that the defendant was delinquent, was sufficient to toll the running of the defendant's probationary period. We held that "the probation officer's notation in his file that Watkins was delinquent simply was not sufficient to initiate revocation proceedings and toll the running of the probation period." 455 So.2d at 163. However, our rationale in reaching this conclusion is relevant to the issue raised in this case:

"The general rule is that a revocation proceeding must be initiated prior to the date of the offender's release from probation.

"`Just as wrongful conduct which is the basis of a revocation must generally occur during the period of probation or parole, the vast majority of American jurisdictions hold that revocation proceedings must be initiated prior to the date of the offender's release from probation or parole. What this means is that process sufficient to begin revocation proceedings must issue before the end of the probation or parole term. Jurisdictions have adopted a variety of ways to commence revocations. The most common methods include a summons, arrest warrant,

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