Author: LegalEase Solutions
INTRODUCTION/QUESTIONS PRESENTED
You have asked us to research issues relating to the following questions:
1) Under Alabama law, 30+ days post-sentencing, does a trial court judge still have jurisdiction over a criminal matter?
2) Should a trial court judge have had jurisdiction and the ability to take a convicted party into custody over a suspected probation violation, ultimately setting a hearing date of 26 days later?
3) Should a defendant convicted pursuant to a plea (but who has filed a notice of appeal) have been placed on an appeal bond, when he had been sentenced to probation, and not custodial supervision?
4) Does Rule 8(d)(4) of the Alabama Rules of Appellate Procedure indicate that an order of probation should have been stayed upon filing of a Notice to Appeal a previous denial of a motion to vacate a guilty plea?
These issues will require discussion of:
- Alabama Rules of Appellate Procedure
- Alabama Rules of Criminal Procedure
- Alabama state case law.
SHORT ANSWERS
1) The trial court lost jurisdiction in the criminal matter after the 30th day from the date of sentencing.
2) A trial court judge has the jurisdiction and the ability to take a party in custody over a violation of probation conditions. But, there should be substantial evidence to support the court’s view and the probationer so arrested should not be denied due process.
3) In absence on any specific provisions indicating the contrary, a person sentenced to probation can be placed on appeal bond.
4) Rule 8(d)(4) of the Alabama Rules of Appellate Procedure clearly indicates that an order of probation should have been stayed upon filing of the Notice of Appeal.
BRIEF STATEMENT OF FACTS
Defendant Harris was arrested and jailed in Alabama on securities fraud charges, on March 24, 2004. The case went to trial on January 24, 2005, at which point Harris’ counsel sought a continuance on the grounds that he was unprepared. He also moved to withdraw from representation of Harris, but that motion was also denied. Thus, Harris was essentially forced to represent himself in a complicated securities case. Harris ultimately pled guilty to various of these charges (though he now claims the plea was not made voluntarily, but rather was coerced).
February 28, 2005, Harris filed a Motion to Vacate the Guilty Plea, in
accordance with Rule 14(4)(e) of the Alabama Rules of Criminal Procedure. On April 28, 2005, he was sentenced to five years probation, fines, restitution, community service, and was ordered not to leave the State of Alabama. His Motion to Vacate the Plea was also denied.
May 2, 2005, Harris reported to his probation officer. On May 6, he filed a Notice of Appeal on the denial of his Motion to Vacate the guilty plea. The Notice of Appeal also contained a Motion to Set an Appeal Bond. No action was taken by the court, however, with regard to setting an appeal bond.
May 19, 2005, Harris’ attorney contacted the probation officer, informing him that Harris needed to travel outside the state, and also that it was his belief that Rule 8(d)(4) of the Alabama Rules of Appellate Procedure indicates that Harris’ existing probation order was effectively stayed by his Notice of Appeal. The probation officer suggested that counsel contact the Attorney General’s office. An Assistant Attorney General informed Harris’ lawyer that he agreed with the contention regarding Rule 8(d)(4), that the probation order was stayed, and that he believed Harris should have the Appeal Bond he requested. Counsel asked the Assistant Attorney General to communicate these opinions to the probation officer.
July 3, 2005, Harris openly traveled to Cleveland, Ohio. On June 18, Harris had filed charges of judicial misconduct against the trial court judge. On July 21, Harris received a Notice to Appear before the trial court judge, but received no notice or indication of the hearing’s purpose. On August 5, Harris appeared as directed, and was presented with a copy of a Motion to Revoke Bond and Motion to Revoke Probation. The probation officer said that Harris hadn’t received notice prior to this because his location was unknown (though he had lived at the address on record with probation the entire time).
After permitting little argument, the judge took Harris into custody and set a hearing to consider Revocation of Probation for August 31, 2005. At the time he was taken into custody, no petition for a writ of revocation of probation had been filed by the Alabama Board of Pardons and Parole, a violation of Rule 27.4(a), Alabama Rules of Criminal Procedure. The trial court arguably violated Rules 7.5(b) and Rule 27.6, Alabama Rules of Criminal Procedure, which require a motion and hearing before probation may be revoked.
August 31, the judge reinstated Harris to the existing probation (which arguably should have already been stayed), and released him from custody.
DISCUSSION
Trial Court’s Post-Sentencing Jurisdiction
Rule 24 of the Alabama Rules of Criminal Procedure outlines the processes by which and the time limits within which a trial court may intervene further in a criminal matter for which sentencing has already occurred. Such procedures include motions for a new trial and motion to arrest judgment. In both cases a court has 30 days from the date of pronouncement of the sentence within which to act on the new motion. After the passage of these 30 days the trial court loses all jurisdiction over the matter.
“Rule 24.1. Motion for new trial.
(a) POWER OF THE COURT. When the defendant has been sentenced, the court, on motion of the defendant or on its own motion, may order a new trial.
(b) TIMELINESS. A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall include an appeal from the denial of the motion.”
Given that this sort of motion had not been made in the instant matter, the trial judge retained no jurisdiction or ability to modify the original sentence 30 days after its imposition when no motion for a new trial was made within that 30-day time period. McGee v State, 620 So.2d; 1993 Ala. Crim. App. LEXIS 46 (1993); Ex Parte Hayden, 531 So. 2d 940; 1988 Ala. Crim. App. LEXIS 583 (1988).
“Rule 24.2. Motion in arrest of judgment.
(a) POWER OF THE COURT. The court, on written motion of the defendant or on its own motion, shall arrest judgment if the charging instrument does not charge an offense, or if the court was without jurisdiction of the offense charged.
(b) TIMELINESS. A motion in arrest of judgment shall be filed within thirty (30) days after sentence is pronounced. The court may act on its own motion in arresting judgment only during the period in which a motion in arrest of judgment would be timely.”
In Ex Parte Jackie Lee Hitt, 778 So. 2d 159, 2000 Ala. LEXIS 568, the court opined that “although this principle is not directly stated in the Rules of Criminal Procedure, the Court of Criminal Appeals has held that if a motion for a new trial or a request to modify a sentence is not filed within 30 days after sentencing, then at the end of the 30th day the trial court loses all jurisdiction to modify a defendant’s sentence. Hill v State, 562 So. 2d 1386; Ala. Crim. App (1990); Ex parte Hayden, 531 So. 2d 940; Ala. Crim. App. 1988.
The court in Ex Parte Hitt, has also held that the pendency of a motion for a new trial does not deprive the trial court of the jurisdiction to receive and act upon a separate motion to amend a sentence, so long as that separate motion is filed within 30 days of the sentencing. Courts have repeatedly stated that a trial court retains jurisdiction to modify a sentence for 30 days after sentence is pronounced. Johnny B. Hill v State, 562 So. 2d 1386; Ex parte: Harold E. Hayden, 531 So. 2d 940; Ex parte State of Alabama (Pickron), 475 So.2d 599; 1985 Ala. LEXIS 3603. But again, no such motion was made in the instant matter, and therefore the question of jurisdiction is essentially irrelevant.
Trial courts retain jurisdiction even after the 30-day limit only to correct any errors or mistakes that might have crept in the sentence, or to reduce the sentence. Otherwise, 30 days after the sentence is pronounced the trial courts loses all jurisdiction over the matter.
Trial Court’s Ability to Reassert Jurisdiction for Alleged Probation Violations
The Alabama Code gives the Circuit courts and district courts the power to grant probation to any person convicted of a crime, subject to certain conditions. Code of Ala. §15-22-50 .
- 15-22-50. Authority of court
Circuit courts and district courts, subject to the provisions and conditions hereinafter provided, may suspend execution of sentence and place on probation any person convicted of a crime in any court exercising criminal jurisdiction………….. Except as provided in the preceding sentence, the court, after a plea of guilty, after the returning of a verdict of guilty by the jury or after the entry of a judgment of guilty by the court, may suspend execution of sentence and place the defendant on probation, or may impose a fine within the limits fixed by law and also place the defendant on probation.”
Code of Ala. § 15-22-52 further gives the courts the power to determine or at any time modify the conditions of probation. However, if the probationer violates the conditions of probation, the court may, on recommendation of the probation officer or on its own motion, revoke the probation once granted. In such a case the court may issue a warrant and cause the probationer to be arrested. After such arrest the court may either continue the existing probation, issue formal warning, modify the existing probation with new conditions or revoke the probation and impose the sentence. Code of Ala. § 15-22-54, ARCrP, R 27.4 (see footnotes for text).
The probationer must be taken without unnecessary delay before the judge who issued his warrant/summons. Such judge shall inform the probationer the alleged violation of probation that led to his arrest and also provide him with a written copy thereof. Thereafter the judge shall set the date of revocation hearing. There are two hearings involved in any such case of arrest for revocation of probation: preliminary hearing and final hearing. The preliminary hearing is the first time when the probationer is produced before the judge and informed of the grounds that constitute violation of probation conditions. ARCrP, R 27.5(a) clearly mentions that on arrest the probationer must be taken before the court without unnecessary delay, but what would constitute “unnecessary delay” is not precisely articulated. Generally speaking, however, a probationer has a due process right to timely hearing. Joe Nathan James, Jr. v State, 686 So. 2d 1290; 1996 Ala. Crim. App. LEXIS 160.
A trial court was found to have failed to adequately specify the evidence that it relied upon in revoking a defendant’s probation by stating in its written order only that it had heard “substantial evidence and testimony.” McIntosh v State, 762 So.2d 388; 1999 Ala. Crim. App. LEXIS 293. Ala. R. Crim. P. 27.6 requires that a probation revocation hearing be held within a reasonable time after the probationer’s initial appearance under Rule 27.5. The comments to the Rule state that it is contemplated that a hearing is to be held as soon as feasible and that a probationer is not to be subjected to lengthy or unwarranted confinement prior to hearing.
However in James, supra, the court refused to invalidate revocation proceedings because of a 2 month delay in holding final hearing, “Courts are not likely to invalidate a revocation simply because the preliminary hearing is not held immediately…Courts are reluctant to reverse a revocation and order a violator restored to probation or parole because of a delay in holding a final hearing.”
In the current case, Harris was arrested over a “suspicion” of a probation violation, but no formal petition for revocation had even been filed prior to Harris having been taken into custody. The court must specify the evidence it relied upon in beginning the process potentially leading to the revocation of probation. Moreover, the long delay prior to the hearing date (26 days) can likely be shown to have been highly prejudicial to Harris. Arguably, Harris has not only been prejudiced by the delay, but also denied due process in that he received no notice of the proceeding, and no indication as to its purpose.
Availability of Appeal Bond Following Filing of Notice
“ARCrP, R 30.3
Rule 30.3. Notice and perfection of appeal; bond on appeal.
(a) NOTICE OF APPEAL. A defendant may appeal from a final judgment in a criminal case entered by a municipal or a district court for trial de novo in the circuit court by filing with the clerk of the municipal or the district court a written notice of appeal within fourteen (14) days from the date of pronouncement of sentence or the date of denial of a timely filed post-trial motion, whichever is later. Notice of appeal shall be served on the prosecuting attorney by the appellant or the appellant’s attorney; provided, however, that notification to the prosecuting attorney shall not be a jurisdictional prerequisite for perfecting an appeal.
(b) PERFECTING APPEAL. An appeal from the municipal or a district court for trial de novo in the circuit court shall be perfected by the timely filing of a written notice of appeal and the posting of a new bond in an amount fixed by the municipal or district judge, conditioned upon the defendant’s appearance before the circuit court, as well as the payment of all costs incurred in the municipal or the district court and on appeal in the circuit court; provided, however, that the court may authorize the defendant’s release on the defendant’s personal recognizance without any undertaking relating to, or deposit of security in lieu of, an appearance and cost bond. A defendant sentenced to imprisonment and not released from custody on bond or personal recognizance may obtain release pending an appeal at any time by filing a bond approved by the municipal or district court. If the defendant remains in custody, the prosecutor shall so notify the circuit court clerk, and the case shall be set for trial at the earliest practical time.
(c) APPEAL TO APPELLATE COURT. An appeal from the district or the municipal court to the Court of Criminal Appeals or the Supreme Court as provided in Rule 30.2 is perfected by filing with the clerk of the district or the municipal court a notice of appeal within forty-two (42) days from the date of pronouncement of sentence or the date of denial of a timely filed post-trial motion, whichever is later.”
Rule 30.3 gives the district or municipal court to fix the amount of a bond to be posted in order to perfect an appeal to the circuit court. While an appeal to the Court of Criminal Appeals does not need any such bond requirement in order to be perfected. However, the rule does not specify any criteria that may be applied differently as a result of a sentence of probation as opposed to custodial supervision.
Rule 8(d)(4) of Alabama Rules of Appellate Procedure Provides for Stay of Probation
“ARAP, Rule 8 :
Rule 8. Stay or injunction pending appeal.
(d) Stays in criminal cases.
(4) PROBATION. An order placing the defendant on probation shall be stayed if an appeal from a judgment of conviction is taken, and the time while such appeal is pending shall not be credited as service of the probationary sentence.”
Without stretching the language of Rule 8(d)(4), it is clearly evident that it provides for an order placing the defendant on probation to be stayed if an appeal from a judgment of conviction is taken. In the current case, Harris’ conviction stemmed from a guilty plea, which he later moved to vacate. The motion to vacate was denied, prompting his timely filing of a motion to appeal. That motion alone should have triggered a stay of his probation order, according to Rule 8(d)(4).
CONCLUSION
The trial court lost jurisdiction over his matter after 30 days from the date of sentencing, as neither of the types of motions that would revive jurisdiction were made. The trial court judge did have jurisdiction to order Harris’ arrest if it could be shown that the conditions of his probation had been violated. However, Harris was still entitled to notice of the allegations and purpose of his arrest, should have been able to appear before the warrant/summon-issuing judge within reasonable time and without unnecessary delay. Though courts are reluctant to invalidate revocation proceedings for reason of delay in holding hearing, Harris can make a strong argument that he was prejudiced by the 26 days for which he was held in custody. Given the fact that there had been no petition for revocation filed by the state at the time of his arrest, there was arguably very little in the way of concrete justification for the arrest.
Rule 8 (d)(4) clearly supports the proposition (with which the Assistant Attorney General to whom counsel had spoken agreed) that the order of probation should have been stayed upon the filing of the Notice to Appeal.
FOOTNOTES
“ARCrP, R 27.5
Review Court Orders which may amend this Rule
Rule 27.5. Initial appearance after arrest.
(a) INITIAL APPEARANCE. When a probationer is arrested pursuant to Rule 27.4(b) or Rule 27.4(c), the probation officer shall be notified immediately (unless the officer made the arrest), and the probationer shall be taken without unnecessary delay before the judge who issued the warrant or summons, if available, or, in case of an arrest without a warrant, before the original sentencing judge, if available; otherwise, the probationer shall be taken before another judge of the same district or circuit, who shall
(1) Inform the probationer of the alleged violation of probation and furnish the probationer with a written copy thereof;
(2) Inform the probationer that any statement the probationer makes prior to the hearing may be used against the probationer;
(3) Advise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met;
(4) Set the date of the revocation hearing; and
(5) Determine whether the probationer is to be released pending the probation revocation hearing or is to be held without bond. In cases involving breaches of conditions of probation because of nonpayment of fines, costs, restitution, or other court-ordered assessments, the court, before the probationer is incarcerated, must inquire into the probationer’s financial status and determine whether the probationer is indigent.
(b) SUMMARY DISPOSITION. The probationer may waive the probation hearing under Rule 27.6(a) and the judge of the sentencing court may make a final disposition of the issue, if:
(1) The probationer has been given sufficient prior notice of the charges and sufficient notice of the evidence to be relied upon; and
(2) The probationer admits, under the requirements of Rule 27.6(c), that he committed the alleged violation.”
