Graffeo v. State

429 So. 2d 670, 1983 Ala. Crim. App. LEXIS 4221

Opinion

ON RETURN TO REMAND

BOWEN, Judge.

On remand, the trial court, 412 So.2d 312, conducted a sentencing hearing and denied probation. The trial judge questioned defense counsel as to whether he desired a continuance of the hearing and as to whether he considered that he was prejudiced by his not having a copy of the “updated” presentence report sooner than he had actually received it. The court made it clear that it would grant the defendant a continuance of the hearing if requested, but no request was ever made.

The court also made it explicit that it wanted to give the defendant “full opportunity to present everything to the court” that she wanted.

Our review of the hearing held on remand convinces us that there was no violation of the Alabama Rules of Criminal Procedure — Temporary Rules. The trial judge had sufficient and adequate information on which to make a fair and impartial determination of the defendant’s application for probation. He is in a much better position than any appellate court to determine whether or not an accused should be granted probation. Absent a plain and clear abuse, that discretion should remain with the trial judge.

The judgment of the circuit court is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.