Scarbrough v. State, CR-96-0409

• Decision Date: 22 August 1997
• Docket Number: CR-96-0409
• Citation: 709 So.2d 82
• Parties: Roy Douglas SCARBROUGH, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 82

709 So.2d 82

Roy Douglas SCARBROUGH, Jr. v. STATE.

CR-96-0409.

Court of Criminal Appeals of Alabama.

Aug. 22, 1997.

Opinion on Return to Remand

Oct. 31, 1997.

Thad Yancey, Jr., Troy, for appellant.

Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Roy Douglas Scarbrough, Jr., appeals from the revocation of his probation. The appellant contends that the trial court's order revoking his probation does not contain the trial court's reasons for revoking his probation or a statement of the evidence relied upon in doing so. The trial court's order revoking probation is as follows:

"This cause being heard in respect of the probation revocation proceedings initiated against Defendant, and the Defendant being present before the Court and represented by his attorney, Hon. Thad Yancey, Jr., and the Court considering the relevant and competent evidence presented (including those matters of which judicial notice is taken), does find that the Defendant has violated condition No. 1 of probation as charged in the 'Supervisor's Report On Delinquent Probationer,' to-wit: by committing the new offense of Theft of Property, 2nd Degree. The Court is of the further opinion and does hereby find that the Defendant's probation should be revoked.

"It is, therefore, ORDERED, ADJUDGED, and DECREED that the Defendant's probation in this cause is hereby revoked and Defendant's sentence of two years imprisonment in the penitentiary of the State of Alabama is hereby executed. Defendant is remanded to the custody of the Sheriff for delivery to the Alabama Department of Corrections and service of sentence.

"DONE THIS THE 25th day of November, 1996."

Although the trial court's order does state the reason for revoking the appellant's probation--the commission of the new offense--it does not specify the evidence the trial court relied upon in revoking the appellant's probation. See Hairgrove v. State, 668 So.2d 887 (Ala.Cr.App.1995); Wyatt v. State, 608 So.2d 762 (Ala.1992); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

This cause is therefore, remanded with instructions to the trial court to enter an order stating the evidence relied upon in determining the reasons for the revoking of the appellant's probation. The trial court shall take the necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 45 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

All judges concur.

On Return to Remand

McMILLAN, Judge.

On August 22, 1997, we remanded this cause to the trial court with instructions to enter an order stating the evidence relied upon in determining the reasons for revoking the appellant's probation.

The trial court, in compliance with our instructions, issued the following order:

"This matter coming before the Court on remand from the Alabama Court of Criminal Appeals, and the Court, in accordance with instructions to enter an order stating the evidence relied upon in determining whether to revoke Defendant's probation, sets forth the following: In the November 25, 1996, revocation hearing, the State called as witness Detective Ron Edwards of the Troy Police Department, who investigated the new charge of Theft of...