Probation is often imposed on criminal defendants after completion of a jail or prison term, sometimes in lieu of a longer incarceration. Part of the deal is defendants have to maintain a certain criteria (avoid arrest, submit to regular drug-testing, meet regularly with probation officer, complete substance abuse treatment or other counseling, conduct community service, etc.).
Failure to abide by these terms can result in severe penalties – sometimes the imposition of maximum statutory penalties for the original underlying charge. This can seem wildly unfair because the actual violation could be something as minor as failing to show up on time for a probation officer meeting.
The court has a broad range of discretion in deciding whether to impose a revocation of probation in lieu of the original maximum sentence, which is why it's so important for defendants to seek experienced legal counsel at these hearings. Defendants are afforded very specific rights with regard to probation and probation revocation under Rule 27.6. These include the right to a hearing, the right to be present and be represented by an attorney, the right to admit or deny the claims alleged against him and present evidence to support or refute those claims. In many ways, it's like a trial, and the outcome could determine the course of a defendant's future.
This was the situation recently in Wagner v. Alabama, a case weighed by the Alabama Court of Criminal Appeals.
According to court records, defendant pleaded guilty years earlier for two serious crimes – first-degree rape and first-degree burglary. He was sentenced to a term of 20 years, but the sentences were split, and he was ultimately ordered to serve 5 years in prison, followed by 5 years of probation.
After his release from prison, he entered the probation system. In March 2014, his probation officer submitted a delinquency report to the court, charging him with failure to abide by the terms of his probation. The probation officer reportedly showed up at defendant's home and discovered evidence he and another convicted felon were consuming methamphetamine. Defendant tested positive for the drug soon after.
Defendant was appointed an attorney and at a hearing, that attorney indicated his client admitted to both charges and presented no evidence in his defense.
Because of the severity of the original underlying charges, the judge ordered defendant to serve out the remainder of his original sentence – 15 years.
Defendant appealed this finding, arguing ineffectiveness of counsel and also a failure by the court to grant him due process.
The appellate court agreed. It found defendant was not granted the opportunity confront any witnesses upon cross-examination, and there is no indication he waived his right to a hearing. As to the admissions made by the attorney on defendant's behalf, at no point did the court affirm those admissions were voluntary, or that such an admission didn't violate his Fifth Amendment rights. Further, no witnesses or evidence was presented by the state, and the court did not inform defendant he had a right to confront adverse witnesses or challenge evidence against him.
Therefore, the probation revocation was reversed and the case was remanded back to the trial court with instructions to comply with Rule 27.6 and Ala. Code 15-22-54.
Our experienced criminal defense lawyers are experienced in representing individuals facing probation revocation in Birmingham.
Wagner v. Alabama, Feb. 6, 2015, Alabama Court of Criminal Appeals