S.K.G. v. State

• Decision Date: 09 July 2021
• Docket Number: CR-19-0976
• Citation: 344 So.3d 901
• Parties: S.K.G. v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

344 So.3d 901

S.K.G.
v.
STATE of Alabama

CR-19-0976

Court of Criminal Appeals of Alabama.

July 9, 2021

Megan Kay Allgood of The Hernandez Firm, LLC, Mobile, for appellant.

Steve Marshall, att'y gen., and Cameron G. Ball, asst. att'y gen., for appellee.

McCOOL, Judge.

344 So.3d 902

S.K.G. appeals the Mobile Circuit Court's order revoking her probation. For the reasons set forth herein, we affirm.

Facts and Procedural History

As best we can determine from the record on appeal, it appears that in 2017 S.K.G. was adjudicated a youthful offender on a charge of first-degree robbery, see § 13A-8-41, Ala. Code 1975, and was sentenced to three years in the custody of the Alabama Department of Corrections. See § 15-19-6(a)(4), Ala. Code 1975. The circuit court suspended S.K.G.'s sentence and ordered her to serve three years of probation. See § 15-19-6(a)(1), Ala. Code 1975.

In 2019, S.K.G.'s probation officer filed a delinquency report alleging that S.K.G. had violated the conditions of her probation by committing several technical violations and multiple criminal offenses. The circuit court subsequently held a revocation hearing at which the State presented testimony regarding S.K.G.'s alleged criminal offenses and at which S.K.G. admitted committing various technical violations of the conditions of her probation. On July 15, 2020, the circuit court issued a written order in which the court revoked S.K.G.'s probation and ordered her to serve the balance of her sentence for her first-degree-robbery adjudication. S.K.G. filed a timely notice of appeal.

Discussion

I.

On appeal, S.K.G. argues that the circuit court erred by not affording her an opportunity to allocute before revoking her probation. Although S.K.G. did not ask the circuit court for an opportunity to allocute or otherwise raise this claim in the circuit court, in other contexts "this Court has held that such [a claim is] an exception to the general rules of preservation." R.V.D. v. State, 268 So. 3d 96, 101 (Ala. Crim. App. 2018). Thus, we will address S.K.G.'s claim.

Whether a probationer has a right to allocution in a revocation hearing is a question of first impression in Alabama. We answer that question today by holding that Alabama law does not provide a probationer with that right. Accordingly, a circuit court does not err in a revocation hearing by failing to ask the probationer if he or she would like to make a statement before the court proceeds to revoke his or her probation.

We begin by noting that, although a probationer is entitled to certain "minimum requirements of due process" in a revocation hearing, Armstrong v. State, 294 Ala. 100, 102, 312 So. 2d 620, 622 (1975), neither the United States Supreme Court nor Alabama's appellate courts have included the right to allocution among those requirements.¹ That is to say, there

344 So.3d 903

is no federal or state constitutional right to allocution. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ("The failure of a trial court to ask a defendant ... whether he has anything to say before sentence is imposed is ... an error which is neither jurisdictional nor constitutional."). Thus, if there is a right to allocution in a revocation hearing in Alabama, that right must arise from a statute or procedural rule. However, a probationer is not provided with a right to allocution in a revocation hearing in either § 15-22-50 et seq., Ala. Code 1975, or Rule 27, Ala. R. Crim. P. -- the statutes and procedural rule that govern probation in Alabama. Nevertheless, S.K.G. contends that a probationer's right to allocution in a revocation hearing is found in Rule 26.9(b)(1), Ala. R. Crim. P., which provides that, "[i]n pronouncing sentence, the court shall ... [a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence." We disagree.

"The Alabama...