Full Opinion (html_with_citations)

Rel: December 16, 2022




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                 Alabama Court of Criminal Appeals
                               OCTOBER TERM, 2022-2023
                                _________________________

                                         CR-2022-0618
                                   _________________________

                                       Tracy Alonzo Gavin

                                                      v.

                                         State of Alabama

                          Appeal from Mobile Circuit Court
                          (CC-18-6524.70 and CC-18-1234.70)


McCOOL, Judge.

        Tracy Alonzo Gavin appeals the Mobile Circuit Court's order

revoking his probation.

                                 Facts and Procedural History
CR-2022-0618

     Based on the limited record provided to this Court, it appears that,

in 2019, Gavin was convicted of third-degree robbery and trafficking in a

controlled substance and, after serving a period of incarceration, was

released to begin serving a period of probation.

     In January 2022, Gavin's probation officer filed a delinquency

petition alleging that Gavin had violated the conditions of his probation

by committing the new offenses of possession of drug paraphernalia,

possession of marijuana, unlawful possession of prescription drugs, and

unlawful possession of a controlled substance.          The circuit court

subsequently held a revocation hearing, and the evidence presented at

that hearing tended to establish the following facts.

     On January 10, 2022, Officer Stewart of the Mobile Police

Department stopped a vehicle in which Gavin was a passenger.1 Because

he smelled marijuana, Officer Stewart searched the vehicle and found

marijuana, a black backpack that was "at [Gavin's] feet" and that

contained 21 ecstasy pills (R. 4), and scales. Officer David Reyes of the

Mobile Police Department, who responded to the traffic stop, spoke with

Gavin at the scene, and Gavin denied that any of those items belonged to


     1The   record does not include Officer Stewart's first name.
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CR-2022-0618

him but admitted that "his fingerprints would be on the items" and that

he "would fail [a] drug test." (R. 5.) The driver also denied that any of

those items belonged to him.

     The circuit court did not issue a ruling at the conclusion of the

hearing or make any findings of fact at that time. The next day, the

circuit court issued an order that states, in pertinent part:

     "Sworn testimony was taken from Officer David Reyes with
     MPD Narcotic and Vice Division regarding a traffic stop on
     January 10, 2022. [Gavin] was a passenger in a vehicle driven
     by Ryshun Samuels, and the stop was made due to a switched
     tag. Officer Stewart, who made the traffic stop, smelled
     marijuana in the vehicle and conducted a search. A loaded
     [handgun] was found between the front seats of the vehicle.
     A bag was found on the floor of the passenger side containing
     84 grams of marijuana, 21 ecstasy pills, and a scale. A
     sunglass case containing two bags, one of which had 7 grams
     of marijuana and one of which had 2 grams of marijuana, was
     also discovered under the passenger seat.

     "After a search, Off. Reyes arrived on the scene and
     questioned [Gavin]. [Gavin] stated that the marijuana did not
     belong to him but he would fail a drug test.

     "At the conclusion of the hearing, the matter was taken under
     submission."

(C. 15.) Later that day, the circuit court issued another order, which

states, in pertinent part:




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CR-2022-0618

     "This matter was before the court on a probation revocation
     request alleging [Gavin] violated the terms and conditions of
     probation by having an arrest for new criminal conduct.

     "The court heard the sworn testimony of Officer David Reyes
     with Mobile Police Department and the matter was taken
     under submission.

     "After considering the testimony, the court is reasonably
     satisfied that [Gavin] violated the terms and conditions of his
     probation by having a new arrest for possession of marijuana
     in the first degree, possession of a controlled substance,
     possession of narcotics paraphernalia, and illegal prescription
     drugs.

     "[Gavin's] probation is fully revoked and he is to serve out the
     remainder of his sentence."

(C. 17.) Gavin filed a timely notice of appeal.

                                Discussion

     Gavin's only argument on appeal is that the circuit court revoked

his probation solely on the basis that he had been arrested for new

offenses, which, as Gavin notes, is not a proper basis for revocation.

Nelson v. State,
331 So. 3d 1194
 (Ala. Crim. App. 2021). However, the

State correctly argues that this claim was not preserved for appellate

review.

     It is well settled that

          " '[t]he general rules of preservation apply in probation-
     revocation proceedings. Puckett v. State,
680 So. 2d 980
 (Ala.

                                     4
CR-2022-0618

     Crim. App. 1996). This Court has recognized three exceptions
     to the preservation requirement in probation-revocation
     proceedings: (1) that there be an adequate written or oral
     order of revocation, McCoo v. State,
921 So. 2d 450
 (Ala. 2005);
     (2) that a revocation hearing actually be held; and (3) that the
     trial court advise the defendant of his or her right to request
     an attorney. Croshon v. State,
966 So. 2d 293
 (Ala. Crim. App.
     2007). Our Supreme Court recognized a fourth exception to
     the preservation requirement that allows a defendant to raise
     for the first time on appeal the allegation that the circuit court
     erred in failing to appoint counsel to represent the defendant
     during probation-revocation proceedings. See Ex parte Dean,
57 So. 3d 169, 174
 (Ala. 2010).' "

King v. State,
294 So. 3d 257
, 259 (Ala. Crim. App. 2019) (quoting

Singleton v. State,
114 So. 3d 868, 870
 (Ala. Crim. App. 2012)).

     As evidenced by King, a claim that the circuit court revoked

probation for an improper reason is not one of the exceptions to the

general rules of preservation. Thus, because Gavin did not argue below

that the circuit court had revoked his probation for an improper reason,

he failed to preserve that claim for appellate review. See Grace v. State,
727 So. 2d 881, 883
 (Ala. Crim. App. 1998) (holding that the appellant's

claim that the circuit court had "revoked his probation merely because he

had been arrested" was not preserved for appellate review because he

had not raised the claim below).




                                     5
CR-2022-0618

     We acknowledge, but reject, Gavin's two attempts to circumvent the

preservation requirement that is fatal to his claim. First, Gavin appears

to argue that he did not have an opportunity to raise this claim below

because, he says, he was not "required to anticipate" the circuit court's

ruling and because, he says, there is "no authority that … required [him]

to … file a post-revocation motion." (Gavin's reply brief, p. 2.) In Dowdle

v. State,
24 So. 3d 546, 548
 (Ala. Crim. App. 2009), this Court held that

there is no rule that authorizes a postjudgment motion in a revocation

proceeding and that, as a result, the filing of such a motion will not

extend the 30-day period in which the circuit court has jurisdiction to

modify its judgment.      However, that holding does not prohibit a

postjudgment motion in a revocation proceeding; it merely cautions a

probationer that filing such a motion will not extend the time in which

the circuit court may modify its judgment and, by extension, will not

extend the time for filing a notice of appeal. Thus, although Gavin was

not required to file a postjudgment motion, nothing prohibited him from

doing so, and, if he had, he could have challenged the circuit court's basis

for revoking his probation in that motion. See Sims v. State,
214 So. 3d 386, 388
 (Ala. Crim. App. 2015) (noting that the probationer had filed a


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CR-2022-0618

postjudgment motion arguing "that the circuit court's finding that he had

been charged with a new offense was an insufficient basis on which to

revoke his probation"); and Taylor v. State,
229 So. 3d 269
 (Ala. Crim.

App. 2016) (holding that the appellant had failed to preserve a claim

challenging the sufficiency of the evidence in a revocation proceeding

because he had not raised the claim in a postjudgment motion).

     Alternatively, Gavin argues that he is actually challenging the

adequacy of the revocation order, which is one of the exceptions to the

preservation requirement. King, supra. However, the requirement that

there be an adequate revocation order is merely a requirement that the

order, or the circuit court's oral findings, clearly and unambiguously state

the court's reason for revoking probation and the evidence upon which

the court relied. See McCoo v. State,
921 So. 2d 450, 462
 (Ala. 2005)

(holding that the adequacy of a revocation order hinges on whether the

order or the circuit court's oral findings "unambiguously set forth the

reasons for the revocation and the evidence that supported those

reasons"). Whether a circuit court's stated reason is a proper basis for

revocation is a separate issue and one that must be raised in the circuit

court in order to be preserved for appellate review.
Grace, supra.
 Here,


                                     7
CR-2022-0618

the revocation order states the circuit court's reason for revoking Gavin's

probation, and Gavin has clearly argued that the court's reason was not

a proper basis upon which to revoke probation.         Thus, we are not

persuaded by Gavin's argument that he is actually challenging the

adequacy of the revocation order.

                               Conclusion

     The only claim Gavin raises on appeal was not preserved for

appellate review.   Accordingly, the circuit court's revocation order is

affirmed.

     AFFIRMED.

     Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.




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