Rule 27.6 Revocation of probation.

Committee Comments

Rules 27.5 and 27.6 are intended to comply with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Rules 27.5 and 27.6 together set up a two-hearing process specifically required by Gagnon. Rule 27.5 provides for an initial appearance before the judge who issued the warrant for the probationer’s arrest, if the probationer is arrested pursuant to an arrest warrant, or, if the probationer is arrested without a warrant, before the original sentencing judge, if available, or before another judge or magistrate. Rule 27.6(a) then provides for the revocation hearing itself.

Rule 27.5(b) allows the probationer to waive a revocation hearing within carefully defined limits. While Gagnon is silent on whether the second hearing may be waived, Armstrong says that two hearings are not necessary if at the first hearing the probationer has received such sufficient notice of the charges against him and of the evidence of probation violation that the probationer can make an adequate defense. The rule as drafted complies with Gagnon.

Rule 27.6(b) provides for the probationer’s right to counsel in all instances. The right to appointed counsel for indigents is more restricted. Gagnon applied a case-by-case due process approach. Certain minimal guidelines were set forth, and section (b) tracks the language of the Gagnon decision. The Alabama Supreme Court in Armstrong adopted this same language in a footnote.

The United States Supreme Court specifically left open the question whether a probationer who can afford to hire a lawyer has an absolute right to be represented by counsel. This rule specifically addresses the question, since the right to the presence of counsel covered by Rule 6.1(a) and Art. I, § 6, Alabama Constitution of 1901, is as broad as possible and would cover this situation.

Under Ala.Code 1975, § 15-22-54, probation cannot be revoked without a hearing. However, there is no Alabama statute which requires a formal trial, and the court is not bound by the strict rules of evidence.

Specific time limits are not imposed under this rule. The probationer may request either an acceleration or postponement of the hearing date, depending on the particular circumstances. However, it is contemplated that a hearing will be held as soon as feasible and that a probationer will not be subjected to lengthy or unwarranted confinement prior to hearing.

The procedure for accepting an admission applies at either the initial appearance or the revocation hearing. If there is no admission, the hearing is conducted pursuant to section (d).

The court which has legally placed a prisoner on probation has a vested right to revoke or to modify any condition or period of probation. Reynolds v. State, 28 Ala.App. 246, 181 So. 797 (1938). Section (d) is designed to prevent arbitrary actions by probation officers seeking the aid of the court in revoking probation and to ensure compliance by probationer with regulations or conditions of probation or instructions pursuant to Rules 27.1 and 27.2. Although probation revocation may follow any violation by the probationer of a condition of his probation, revocation followed by imprisonment is not the recommended disposition, unless:

(1) Confinement is necessary to protect the public from further criminal activity by the probationer; or

(2) The probationer is in need of correctional treatment which can most effectively be provided if he is confined; or

(3) It would unduly depreciate the seriousness of the violation if probation were not revoked.

Other intermediate steps which should be considered in every case as possible alternatives to revocation include:

(1) A review of the conditions, followed by changes where necessary or desirable;

(2) A formal or informal conference with the probationer to reemphasize the necessity of compliance with the conditions;

(3) A formal or informal warning that further violations could result in revocation.

Section (f) is included to give a reviewing court a basis for evaluating the revocation hearing and decision. Both Gagnon, supra, and Armstrong, supra, require that a written statement be made as to the evidence relied upon and the reasons for revoking probation. A written judgment entry would constitute a sufficient written statement.

See Stout v. State, 45 Ala.App. 262, 229 So.2d 37 (1969).