T.D.M. v. State
Decision Date | 21 October 2016 |
Docket Number | CR-15-1019. |
Citation | 224 So.3d 205 |
Parties | T.D.M. v. STATE of Alabama |
Court | Alabama Court of Criminal Appeals |
James M. Byrd, Mobile, for appellant.
Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
T.D.M. appeals the circuit court's revocation of his probation.1
T.D.M. allegedly violated the terms and conditions of his probation. On May 25, 2016, the circuit court held a probation-revocation hearing. The record from the revocation hearing reveals that T.D.M. was charged with violating his probation by failing to report to his court-referral officer ("CRO"), failing to pay "CRO fees," failing to report "to CRO since August of 2015," and obtaining a new arrest for the charges of attempted murder and burglary. (R. 6.) At the hearing, the following occurred regarding whether T.D.M. would admit his violations:
(R. 6-7.)
The State called Sgt. Matthew Jernigan with the Criminal Investigations Unit of the Escambia County Sheriff's Office to testify at the hearing. Sgt. Jernigan testified that on November 28, 2015, the Escambia County Sheriff's Office received a complaint from Atmore Community Hospital of a gunshot victim who had been admitted to the hospital and, through the sheriff's investigation, they had determined that Derrick Staples had obtained one gunshot wound
to the back. Staples advised the officers that T.D.M. and three other individuals had unlawfully entered his residence and demanded cash. Staples told investigators that, as he was fleeing from his own residence, T.D.M. discharged a firearm and shot him in the back. According to Sgt. Jernigan, Staples also picked T.D.M. out of a photographic lineup as the person responsible for discharging the firearm and shooting him in the back, and Staples was also able to identify the other three men that had broken into his home. Sgt. Jernigan testified that, during the investigation, an interview was conducted with each of the other three individuals involved in the incident. All three of the other individuals admitted to the officers that they all went to Staples's residence and that T.D.M. discharged the firearm during the burglary. Staples also informed officers that, during the flight from his residence, he saw a silver Pontiac Grand Prix automobile outside his residence, which he believed was commonly driven by T.D.M. Sgt. Jernigan also stated that officers spoke with T.D.M.'s grandmother, who stated that T.D.M. commonly drove a silver Pontiac Grand Prix.
Following the State's presentation of its evidence, T.D.M.'s counsel argued that T.D.M.'s probation could not be revoked because all the testimony presented at the probation hearing was hearsay. At the conclusion of the hearing, the court stated:
(R. 13-14.) After the hearing, the circuit court entered a written order revoking T.D.M.'s probation, which stated, in pertinent part, the following:
(C. 5.)
On appeal, T.D.M. argues that the evidence was insufficient because, he says, the circuit court relied solely on hearsay evidence to revoke his probation.
Ex parte J.J.D., 778 So.2d 240, 242 (Ala. 2000).
" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. In Askew v. State, 197 So.3d 547, 548–49 (Ala. Crim. App. 2015), this Court stated:
"This Court has consistently held that ‘[w]hile hearsay evidence is admissible in a revocation proceeding it may not serve as the sole basis of the revocation.’ Beckham v. State, 872 So.2d 208, 211 (Ala. Crim. App. 2003) ; see also Brazery v. State, 6 So.3d 559, 562 (Ala. Crim. App.2008) ; Clayton v. State, 669 So.2d 220, 222 (Ala. Crim. App. 1995)(same); English v. State, 164 So.3d 627, 631–32 (Ala. Crim. App. 2014) ’); Wescovich v. State, 142 So.3d 1276, 1279 (Ala. Crim. App. 2013) (); Vaughn...
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Anthony v. State
...recognized that a defendant's probation cannot be revoked based solely on an admitted technical violation. See T.D.M. v. State, 224 So.3d 205, 209 (Ala. Crim. App. 2016) (citing § 15-22-54(e)(1), Ala. Code 1975 ). Section 15-22-54(e)(1), Ala. Code 1975, states:"Unless the underlying offense......
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Nelson v. State
...had been charged with an offense to be a sufficient basis for the revocation." Id. at 46 (emphasis added). See also T.D.M. v. State, 224 So. 3d 205 (Ala. Crim. App. 2016) (reversing an order revoking probation when the probationer admitted that he had been arrested for new offenses but deni......
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