HOOKS v. STATE (2020)

Matthew Shane Hooks appeals the revocation of his probation.¹ In his appeal, Hooks argues that the Madison Circuit Court erred by fully revoking his probation based on only technical violations. For the reasons expressed below, we reverse the circuit court's judgment.

On February 19, 2019, Hooks's probation officer filed a delinquency report charging Hooks with violating the conditions of his probation by committing two new offenses of fourth-degree theft of property and by committing several technical violations, including failing to report, failing to pay supervision fees, and failing to pay court-ordered fines and moneys.

At the probation-revocation hearing, the circuit court heard testimony from Hooks's probation officer regarding Hooks's technical violations.² However, no evidence was presented regarding Hooks's alleged two new offenses. After that, the circuit court held, in pertinent part:

“After hearing the testimony, the court is reasonably satisfied that [Hooks] has violated his probation with reference to charge three, failure to report; charge four, failure to pay monthly supervision fees; and charge five, failure to pay other court-ordered fines and monies.

“․

“He was also arrested for two additional theft fourth charges. We have no testimony on those. The fact that he was arrested for the new charges takes him out of administrative status, so his probation is revoked. He is remanded to the Department of Corrections to serve the balance of the 14-month sentence for B&E auto.”

(R. 12-13 (emphasis added).)

Defense counsel made the following objection:

“[Defense counsel]: Judge, if I may just make an objection on the record. The State has not proven his new offenses. And I believe under the law--I understand you see it differently, but I believe under the law, he could not be revoked purely on the technicals. He would only be subject to a 45-day dunk.

“THE COURT: All right. The objection is overruled. The statute simply says he's arrested for a new offense, and that's actually gone up to the Court of Criminal Appeals.”

(R. 13-14.)

On May 15, 2019, the circuit court issued a written order revoking Hooks's probation. Hooks appeals.

Relying on Jacobs v. State, 294 So. 3d 820 (Ala. Crim. App. 2019), Hooks argues that the circuit court erred in fully revoking his probation based on only technical violations.

In Jacobs, this Court held:

“The circuit court's full revocation of Jacobs's probation and imposition of the remainder of the sentence violated § 15-22-54(e)(1), Ala. Code 1975, [stating that ‘when a defendant under supervision for a felony conviction has violated a condition of probation, other than arrest or conviction of a new offense or absconding, the court may impose a period of confinement of no more than 45 consecutive days’] because the court found Jacobs committed only a technical violation. Accordingly, the circuit court's order of October 10, 2018, revoking Jacobs's probation and imposing the balance of his 10-year sentence is reversed, and the case is remanded for further proceedings consistent with this opinion.”

294 So. 3d at 823.

Here, like in Jacobs, Hooks, at this point, has been determined to be only a technical violator and, thus, is subject to a 45-day “dunk” under § 15-22-54(e)(1), Ala. Code 1975. Therefore, we reverse the judgment of the circuit court and remand the case to that court for proceedings consistent with this court's opinion in Jacobs, supra.

REVERSED AND REMANDED.

Based on the holding in Jacobs v. State, 294 So. 3d 820 (Ala. Crim. App. 2019), I concur in the Court's judgment reversing the revocation of Matthew Shane Hooks's probation and remanding the cause for further proceedings. I write separately to note that, even if the State is correct in its position “that, under the plain language of [§ 15-22-54(e)(1), Ala. Code 1975], a new arrest ․ suffice[s] to remove [Hooks's] case from the ‘dunk’ sanction” (State's brief, p. 6), this Court could not affirm on that basis in this case.

The State listed four alleged violations of probation in the “report on delinquent probationer” that it provided to Hooks: (1) two instances of commission of fourth-degree theft; (2) failing to report as directed; (3) failing to pay supervision fees; and (4) failure to pay court-ordered money. (C. 9-12.) The State did not list “a new arrest” in the report, nor did it otherwise notify Hooks that it sought the revocation of his probation because he had been arrested.³ The circuit court found evidence to support only the charges alleging technical violations, but it did not find that it was reasonably satisfied that Hooks had committed the new offenses. Although the court mentioned Hooks's arrest for allegedly committing new offenses, there was no nonhearsay evidence of that arrest, and, more importantly, the State had not notified Hooks that it would seek to revoke his probation because he had committed technical violations and had been arrested. See, e.g., Jacobs, 294 So. 3d at 824 (Minor, J., concurring in part and concurring in the result) (“Although this Court generally may affirm a circuit court's judgment for any reason, there are due-process limits to the affirm-for-any-reason rule. Given the Supreme Court's recent opinion in Ex parte Wayne, 292 So. 3d 1036 (Ala. 2019), I question whether this Court could properly affirm the revocation of probation on a basis not expressly presented by the State below as a ground for revoking probation.”). Thus, even if § 15-25-54(e)(1), Ala. Code 1975, authorizes the full revocation of probation based on only technical violations and an arrest, this Court cannot affirm on that basis in this case.

FOOTNOTES

1.   In case no. CC-17-3772, Hooks pleaded guilty to one count of breaking and entering a motor vehicle. The Madison Circuit Court sentenced him to 14 months' imprisonment; that sentence was suspended, and Hooks was placed on 2 years' supervised probation. In case no. CC-18-1736, Hooks pleaded guilty to two counts of fourth-degree theft of property. The circuit court sentenced Hooks to 365 days' imprisonment; that sentence was suspended, and Hooks was placed on 2 years' supervised probation.

2.   Hooks was not present at the hearing, but Hooks's counsel was present. The circuit court held that Hooks had voluntarily absented himself from the proceedings and continued to proceed in Hooks's absence.

3.   There is no evidence indicating that the State supplemented its report to include a “new arrest” as a ground for revocation.

MINOR, Judge.

Windom, P.J., and Kellum and McCool, JJ., concur. Minor, J., concurs specially, with writing, joined by Cole, J.