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ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2008-2009

CR-06-1835

Daniel Emerson
v.
State of Alabama
Appeal from St. Clair Circuit Court
(CC-05-137.70)

WISE, Presiding Judge.

On October 6, 2005, the appellant, Daniel Emerson, was
convicted of first-degree sexual abuse.  The trial court split
his sentence to time served followed by five years on
supervised probation.  On March 7, 2006, Emerson's probation

officer filed an "Officer's Report on Delinquent Probationer."

On January 31, 2007, the circuit court conducted an initial

revocation hearing.   At the conclusion of that hearing, the

circuit court instructed Emerson that, when it knew where he

would live, it would reinstate his probation.  On June 25,

2007, the circuit court conducted a second hearing.  After

determining that Emerson did not have a suitable place to

live, the circuit court revoked his probation.  This appeal

followed.

I.

Emerson argues that the circuit court did not enter a

written order in which it stated the evidence upon which it

relied in revoking his probation.

"It follows that the requirement of Wyatt [v.
State, 608 So. 2d 762 (Ala. 1992),] and its
associated cases -- that the trial court enter a
written order stating its reasons for the revocation
and the evidence relied upon regardless of the state
of the record --is no longer applicable.
Henceforth, the Court of Criminal Appeals may
determine, upon a review of the record, whether the
requisite Rule 27.6(f)[, Ala. R. Crim. P.,]
statements are presented by that record.  Thus, the
Court of Criminal Appeals may examine the record and
conclude that 'oral findings, if recorded or
transcribed, can satisfy the requirements of
Morrissey [v. Brewer, 408 U.S. 471, 92 S. Ct. 2593,
33 L. Ed. 2d 484 (1972),] when those findings create
a record sufficiently complete to advise the parties

and the reviewing court of the reasons for the
revocation of supervised release and the evidence
the decision maker relied upon.' [United States v.]
Copeland, 20 F.3d [412,] 414 (11th Cir. 1994)].

"We hasten to note that our holding in this case
does not diminish the duty of the trial court to
take some affirmative action, either by a statement
recorded in the transcript or by written order, to
state its reasons for revoking probation, with
appropriate reference to the evidence supporting
those reasons.  The requirements of Wyatt will still
be fully applicable in those situations where the
record, for lack of transcription of the revocation
hearing or for some other reason, fails to clearly
and unambiguously set forth the reasons for the
revocation and the evidence that supported those
reasons. Thus, the requirements of Wyatt are fully
applicable to the trial court's order of revocation
where the record fails to comply with Rule 27.6(f)."

McCoo v. State, 921 So. 2d 450, 462-63 (Ala. 2005) (emphasis

added).

"In order to meet the requirements of Rule 27.6(f),
as well as those of constitutional due process, it
is 'the duty of the trial court to take some
affirmative action, either by a statement recorded
in the transcript or by written order, to state its
reasons for revoking probation, with appropriate
reference to the evidence supporting those reasons.'
McCoo, 921 So. 2d at 462 (emphasis added)."

Ex parte Garlington, [Ms. 1061831, February 22, 2008] ___ So.

2d ___, ___ (Ala. 2008).

In its written revocation order, the circuit court

stated:

"This case was called for hearing on Petition to
Revoke Probation on this the 25th day of June, 2007.
Appearing for the State, the Honorable Carol Boone.
The defendant appeared before the Court with his
attorney, the Honorable Don Hamlin.

"After an ore tenus hearing the Court finds that
the defendant has violated the terms and conditions
of his probation in that he has:

"1. Defendant failed to find a suitable
place to live approved by the Sheriff's
Department.

"2. Defendant has been drinking.

"3. Defendant has been associating with

known convicted felons.

"It is therefore ORDERED, ADJUDGED AND DECREED
that the defendant, Daniel Emerson, probation is
hereby revoked and the defendant ordered
incarcerated in the Department of Corrections to
serve the balance of the fifteen year sentence as
heretofore ordered."

(C.R. 54.)  

The circuit court did not include in either its written

revocation order or the transcript of the revocation

proceedings an affirmative statement that adequately set forth

the evidence upon which it relied in revoking Emerson's

probation. Accordingly, we must remand this case to the

circuit court with instructions that it enter a written order

in which it specifically states the evidence upon which it
relied in revoking Emerson's probation.

II.

Emerson also argues that the circuit court erred when it

did not appoint counsel to represent him during the June 25,

2007, hearing. The record shows that Emerson was represented

by counsel during the January 31, 2007, hearing.  However, on

June 18, 2007, counsel filed a motion to withdraw from

Emerson's case. The transcript of the June 25, 2007, hearing

indicates that Emerson represented himself at that hearing.

"'[T]here is no automatic right to counsel in a
probation revocation proceeding.'  Law v. State, 778
So. 2d 249, 250 (Ala. Crim. App. 2000) (citing
Spence v. State, 766 So. 2d 206, 207 (Ala. Crim.
App. 1999)). Whether a probationer is entitled to
counsel is determined on a case-by-case basis.  See
Law, 778 So. 2d at 250; Armstrong v. State, 294 Ala.
100, 312 So. 2d 620 (1975)."

Gibbons v. State, 882 So. 2d 381, 382 (Ala. Crim. App. 2003).

Rule 27.6(b), Ala. R. Crim. P., provides, in pertinent part:

"Counsel will be appointed to represent an indigent

probationer upon request:

"(1) If the probationer makes a
colorable claim that the probationer has
not committed the alleged violation of the
conditions or regulations of probation or
the instructions issued by the probation
officer; or

"(2) Even when the violation is a
matter of public record or is uncontested,
if there are substantial reasons that
justify or mitigate the violation and that
may make revocation inappropriate, and the
reasons are complex or otherwise difficult
to develop or present."

In this case, the record indicates that the circuit court
appointed counsel to represent Emerson before the initial
revocation hearing. After counsel filed his motion to
withdraw, the circuit court allowed Emerson to appear pro se
at the June 25, 2007, hearing.  However, the circuit court did
not advise Emerson of his right to request counsel or make any
findings regarding whether Emerson had a right to appointed
counsel during the June 25, 2007, hearing.  Therefore, we must
also remand this case to the circuit court for that court to
make specific, written findings of fact regarding whether
Emerson had a right to appointed counsel during the June 25,
2007, hearing.  See Turner v. State, 981 So. 2d 444 (Ala.
Crim. App. 2007); Lanier v. State, 849 So. 2d 994 (Ala. Crim.
App. 2002).

For the above-stated reasons, we remand this case to the
circuit court with instructions that it make specific, written
findings of fact regarding whether Emerson had a right to

appointed counsel during the June 25, 2007, hearing.  If the
circuit court determines that Emerson was entitled to have
appointed counsel represent him during that hearing, it shall
set aside its order revoking Emerson's probation and conduct
a new revocation hearing that complies with the due process
requirements set forth in Morrissey v. Brewer, 408 U.S. 471,
92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli,
411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973);
Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975); and
Rule 27, Ala. R. Crim. P.  If the circuit court determines
that Emerson was not entitled to appointed counsel during the
June 25, 2007, hearing, it shall set forth its findings in a
written order and shall also enter a new written revocation
order in which it specifically states the evidence upon which
it relied in revoking Emerson's probation.  The circuit court
shall take all necessary action to see that the circuit clerk
makes due return to this court at the earliest possible time

and within 35 days after the release of this opinion.1

1Because of our disposition of this case, we pretermit
discussion of any remaining claims Emerson raises in his brief
to this court.

CR-06-1835
REMANDED WITH INSTRUCTIONS.
Welch, Windom, and Kellum, JJ., concur.

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