Woodward v. State

• Citation: 3 So.3d 941
• Decision Date: 01 August 2008
• Docket Number: CR-06-0357.
• Parties: Mario Dion WOODWARD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

3 So.3d 941

Mario Dion WOODWARD v. STATE of Alabama.

CR-06-0357.

Court of Criminal Appeals of Alabama.

August 1, 2008.

Joseph P. Van Heest, Montgomery, for appellant.

Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

PER CURIAM.

Mario Dion Woodward appeals the trial court's revocation of his probation.

Woodward presents three arguments on appeal; however, because of our disposition of this case, we need address only one. Woodward argues that the trial court lacked jurisdiction to revoke his probation on October 20, 2006, because, he says, he had been discharged from probation by order of the trial court on July 26, 2006.¹ We must agree.

The record reflects that on June 10, 1999, Woodward pleaded guilty to possession of marijuana in the first degree. On June 25, 1999, he was sentenced to 12 years' imprisonment, and on June 28, 1999, the trial court suspended the sentence, and placed Woodward on three years' probation. On July 23, 1999, the trial court amended the probationary period to five years. On November 25, 2003, Woodward's probation officer filed a delinquency report alleging that Woodward had violated the terms and conditions of his probation by failing to report to his probation officer; failing to notify his probation officer of a change of address; failing to pay supervision fees; and failing to pay court-ordered moneys. On December 10, 2003, the trial court declared Woodward delinquent and ordered Woodward arrested. The notation indicating this action was mistakenly placed on the case-action-summary sheet for a Rule 32, Ala.R.Crim.P. petition for postconviction relief Woodward had filed challenging his conviction (case no. CC-98-2170.60). On December 15, 2003, a capias warrant was issued for Woodward's arrest. The notation indicating this action was placed on the case-action-summary sheet for Woodward's original conviction (case no. CC-98-2170) and specifically referenced "page 2" of the case-action-summary sheet for the Rule 32 petition. (C. 1.) On July 26, 2006, the trial court signed a document entitled "State of Alabama Probation and Parole Office Interoffice Communication" in which it approved Woodward's probation officer's request that Woodward be discharged from probation effective July 26, 2006. The State does not dispute that this action by the trial court formally discharged Woodward from probation and terminated Woodward's probationary term effective July 26, 2006.²

On September 28, 2006, Montgomery Police Officer Keith Houts was shot. On September 29, 2006, Woodward was arrested in Georgia on a fugitive warrant relating to the shooting of Officer Houts. On September 30, 2006, Woodward waived extradition and was returned to Alabama; that same day, Officer Houts died as a result of his gunshot wounds.³ Also that same day, the capias warrant previously issued on December 15, 2003, for Woodward's alleged violation was served on Woodward. On October 6, 2006, Woodward appeared in court for an initial appearance under Rule 27.5, Ala.R.Crim.P. On October 12, 2006, the State filed a "Motion to Correct Clerical Mistake," in which it averred that the July 26, 2006, order discharging Woodward from probation at the request of Woodward's probation officer had been based on mistaken information provided by the probation officer, specifically, information that Woodward had completed his probationary term (which he had not) and had been on probation for over five years (which he had not); that a clerical mistake had occurred when the trial court's declaration of Woodward as delinquent on December 10, 2003, had been entered on the case-action-summary sheet for Woodward's Rule 32 petition and not on the case-action-summary sheet for Woodward's conviction; that, consequently, a review of the case-action-summary sheet for Woodward's conviction would not have revealed that his probationary term had been tolled in December 2003;⁴ and that "Rule 29 of the Alabama Rules of Criminal Procedure authorizes the Court to correct such clerical mistakes." (C. 4.) On October 18, 2006, the trial court issued an "Order to Correct Clerical Mistake," in which it stated that Woodward's probation had been tolled in December 2003; that Woodward had not completed his probationary term; that Woodward had not been on probation more than five years; that the information contained in the probation officer's request for Woodward's probation to be terminated was incorrect "as a result of a clerical mistake"; and that Rule 29, Ala.R.Crim.P., authorizes a court to correct clerical mistakes. The court then rescinded its July 26, 2006, order discharging Woodward from probation. On October 20, 2006, a probation-revocation hearing was conducted, after which the trial court revoked Woodward's probation.

We begin by noting that a probationary period does not end until: (1) the probationer satisfactorily fulfills all the conditions of probation and the actual probationary term ordered by the court expires, see § 15-22-54(a), Ala.Code 1975 ("When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant."), and Rule 27.3(c), Ala.R.Crim.P. ("Probation automatically terminates upon successful completion of the term of probation set by the court"); (2) if the probationer has not satisfactorily fulfilled all the conditions of probation, the maximum period of probation allowed by law expires, see § 15-22-54(a), Ala.Code 1975 ("in no case shall ... the maximum probation period of a defendant guilty of a felony exceed five years"); or (3) the probationer is formally discharged from probation by the court, see § 15-22-54(b), Ala.Code 1975 ("The court granting probation may, upon the recommendation of the officer supervising the probationer, terminate all authority and supervision over the probationer prior to the declared date of completion of probation upon showing a continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of probation."), and Rule 27.3(b), Ala.R.Crim.P. ("At any time during a term of probation, the sentencing court may terminate probation and discharge the probationer absolutely, after notice to the prosecutor. Early termination may result from a motion of the probationer or the probation officer, or on the initiative of the court."). See also G.L.C. v. State, 910 So.2d 163 (Ala.Crim. App.2005); Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998); Sherer v. State, 486 So.2d 1330 (Ala.Crim.App.1986); Watkins v. State, 455 So.2d 160 (Ala.Crim.App. 1984); and Hamilton v. State, 441 So.2d 1035 (Ala.Crim.App.1983). Initiation of proceedings to revoke probation, such as the issuance of an arrest warrant or the filing of a delinquency report by a probation officer, see Young v. State, 552 So.2d 879 (Ala.Crim.App.1989), tolls the running of the probationary term if the process is begun before the probationary term ends, see Owens, supra, and a trial court retains jurisdiction to revoke probation even after the probationary period has expired so long as the revocation proceedings were initiated within the maximum probationary term, see Sherer, supra, and Watkins, supra.

In this case, revocation proceedings were initiated in December 2003, within the five-year probationary period, and this action tolled the running of Woodward's probationary period, as the State correctly asserts in its brief. However, it is undisputed⁵ that, after tolling Woodward's probationary term, the court formally discharged Woodward from probation on July 26, 2006, thus ending Woodward's probationary term. The only question, then, is whether the trial court had the authority nearly three months later, on October 18 2006, to rescind its July 26, 2006, order discharging Woodward from probation.

Generally, a trial court retains jurisdiction to modify a judgment for only 30 days after that judgment is entered. See, e.g., Loggins v. State, 910 So.2d 146 (Ala. Crim.App.2005), and Ex parte Bishop, 883 So.2d 262 (Ala.Crim.App.2003). This general rule applies in the context of probation. See, e.g., Davis v. State, 644 So.2d 44 (Ala.Crim.App.1994). However, Rule 29, Ala.R.Crim.P., on which the trial court relied in rescinding its July 26, 2006, order, provides:

"Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary, a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ, in conformity with Rule 10(f), A.R.App.P."

The Committee Comments to this rule provide, in pertinent part:

"Rule 29 is taken directly from Rule 60(a), [Ala.]R.Civ.P.... While the rule is intended to deal solely with correction of clerical errors and not judicial errors in the rendition of judgments and orders, evidence outside the record that was previously excluded from consideration may be received and considered. Also the rule, unlike the statute, [Title 7, §§ 556-570, Code of Alabama 1940, which was not recodified in the 1975 Code] does not have an outside time limitation, and clerical errors can be corrected under the rule even after an appeal has been completed."

"Because Rule 29 is taken directly from Rule 60(a), Ala.R.Civ.P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29." Dollar v. State, 687 So.2d 209, 210 (Ala.1996).

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