Sparks v. State
| Decision Date | 15 December 1959 |
| Docket Number | 6 Div. 723 |
| Citation | 119 So.2d 596,40 Ala.App. 551 |
| Parties | Melvin SPARKS v. STATE. |
| Court | Alabama Court of Appeals |
Morel Montgomery, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
Melvin Sparks had been indicted for assault with intent to murder under two indictments charging separate offenses.
On 5 June 1956, he entered a plea of guilty to assault and battery to each indictment, and judgment of guilty was entered pursuant to such pleas.
In each case a fine of five dollars was imposed, together with costs, and the court as additional punishment, imposed a sentence of one hundred and eighty days at hard labor for Tuscaloosa County.
The fine and costs not being paid or confessed, Sparks was sentenced to appropriate time in each case for the payment for fine and costs. However, the record shows that Sparks paid the fine and costs in each case the day after he was sentenced.
Thereafter he appealed each case, and after affirmance of each case by this court he began serving his time on 25 July 1958.
In this State terms of imprisonment are served consecutively. State ex rel. McQueen v. Horton, 31 Ala.App. 71, 14 So.2d 557; Sec. 83, Tit. 45, Code of Alabama 1940.
For convenience we will hereinafter refer to Sparks' cases as Case A and Case B.
On 28 November 1958, after Sparks had served 157 days in Case A, he filed a written petition with the court below requesting that he be placed on probation in Case B.
This petition was supported by a letter from Sparks' then attorney in which it was stated, among other things:
'In view of the foregoing, it is my opinion that you have authority to suspend one of the six months' sentences of Melvin Sparks at any time up to midnight, November 28 (TODAY), if you so desire under either Section 334 of Title 15 or Section 19 of Title 42 of the Alabama Code. In view of the restriction as to time, it is a physical impossibility to get a written opinion from the Attorney General in this regard by midnight tonight.
'In view of Mr. Sparks' record while in prison, and his prospective job with Mr. John Anders of Northport upon his release, I wish to strongly urge your favorable consideration of his application for suspension of the six months' sentence upon which the execution is scheduled to begin immediately after midnight tonight.'
Pursuant to Sparks' petition for probation the court did, on November 1958, suspend the sentence in Case B and place Sparks on probation for a period of two years, and he was released from custody.
Thereafter on 2 March 1959, Sparks was caught helping to operate a large still in Pickens County, and was arrested by federal officers.
On 4 March 1959, W. N. Baker, Parole and Probation Supervisor, swore out a warrant for the arrest of Sparks as a probation violator. He was arrested pursuant to this warrant, and a hearing was set for 30 April 1959.
Prior to the hearing, Sparks filed a motion to vacate the order of 28 November 1958, granting him probation, on the ground that said order was void when issued.
Upon the hearing on the question of revocation of probation, it was Sparks' contention that on 28 November 1958, despite his allegations in the petition signed by him, and the statements contained in his then attorney's letter, he actually had served his sentence in Case A, since with time off for good behavior, he had completed his first sentence in 150 days; that on 28 November 1958, he had served 157 days, and was therefore 7 days into his second sentence, and was in custody of the prison authorities, and therefore the court was without jurisdiction to grant him probation on 28 November 1958. It was further contended in Sparks' behalf, that he, having been released from custody under a void order, his second sentence continued to run, and had been fully served at the time of the revocation, and he was therefore entitled to his liberty.
At the conclusion of the hearing on 28 November 1959, the court adjudged that Sparks had violated the terms of his probation and ordered that such probation be revoked and the sentence in Case B be carried out. The court also overruled Sparks' motion to vacate the order of probation. 'All of which is hereby ordered and adjudged on this May 5, 1959.'
From the above order, Sparks has attempted to perfect an appeal to this court.
Our first concern is whether an appeal will be from an order revoking probation.
The original grant of probation is a matter of grace entirely within the discretion of the trail court. See 'Legal Aspects of Probation Revocation,' 59 Col.L.R. p. 312. Certainly this discretionary aspect in the original granting or denial of probation is clear from our statutes pertaining to probation. Sec. 19, Tit. 42, Code of Alabama 1940, providing that circuit courts, and other courts of record from whose judgments appeals lie directly to the Court of Appeals, or Supreme Court, may, suspend execution of sentence and place on probation, etc., (italics ours).
Under Ex parte Smith, 252 Ala. 415, 41 So.2d 570, a circuit court has jurisdiction to suspend sentence and place a convict on probation at any time before the execution of the sentence is actually begun, and the thirty day statute (Sec. 119, Tit. 13, Code of Alabama 1940) has no application to petition for probation, which, if timely filed must be entertained.
We are not now, however, considering the power of a trial court to grant or deny probation, but we are considering whether, after probation has been granted, an appeal will lie from an order revoking probation.
In this connection Sec. 24, Tit. 42, Code of Alabama 1940, as amended, provides:
We have previously held in McCain v. Sheppard, 33 Ala.App. 431, 34 So.2d 225, in an appeal in a habeas corpus proceeding that a hearing by the court is mandatory and jurisdictional prior to the revocation of probation.
Examination of Sec. 24, supra, shows that before a probation may be revoked there must be (1) an arrest of the probationer, either on a warrant of arrest issued by the court, or a written statement by a probation officer; (2) a report of such arrest to the court, and (3) a hearing, after which the court may revoke the probation or suspension of sentence.
Thus the order and judgment revoking, or not revoking probation comes only after arrest, and hearing. It is made in a proceeding separate in time and issues from the original prosecution.
The issue in the revocation is whether the probationer has violated the terms of his probation.
Having been placed on probation, the convict is given and endowed with a new status. His sentence is suspended and he enjoys a conditional liberty. He is relieved of the ignominy of imprisonment, and may continue to support himself and his family. Clearly substantial interests accompany a probationer's status. While the probationer's interest in the maintenance of his status as a probationer may be the paramount interest involved so far as the probationer is concerned, there is also a substantial social interest involved that those who have been given an opportunity to rehabilitate themselves outside prison walls may do so, with the accompanying saving to the State, not only in maintaining the prisoner, but also the economic problems of his family.
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