Hicks v. State

138 So. 3d 334
CourtCourt of Criminal Appeals of Alabama
DecidedMarch 29, 2013
DocketCR-11-1974
StatusPublished

This text of 138 So. 3d 334 (Hicks v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. State, 138 So. 3d 334 (Ala. Ct. App. 2013).

Opinion

WELCH, Judge.

Kenneth Thomas Hicks appeals the circuit court’s decision to revoke his probation. Hicks pleaded guilty on August 16, 2011, to first-degree rape and first-degree sexual abuse of a child under the age of 12. See §§ 13A-6-61 and 13A-6-69.1, Ala. Code 1975. He was sentenced to 20 years’ imprisonment for each conviction. The sentences were split, and Hicks was ordered to serve 18 months in prison followed by 5 years’ probation.

While Hicks was serving the probationary portions of his sentences, a delinquency report was filed alleging that Hicks had violated the terms and conditions of his probation. On August 3, 2012, Hicks filed a pro se motion to vacate his sentences, claiming that he had been illegally sentenced under the Split-Sentence Act. -See § 15-18-8, Ala.Code 1975. The trial court denied the motion. On September 13, 2012, a probation-revocation hearing was held at which Hicks admitted that he had violated the terms and conditions of his probation. Following Hicks’s admission, the trial court revoked Hicks’s probation. This appeal follows.

On appeal, Hicks argues that the circuit court did not have authority under § 15-18-8(a) of the Split-Sentence Act to split his sentences or to impose probation because sexual offenses involving a child are not among those offenses eligible for treatment under the Split Sentence Act- Hicks also cites in support of his position this Court’s recent decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), and he argues that he should receive the same relief this Court provided the appellant in that ease. In its brief, the State concedes that Hicks’s sentence is not authorized by law and requests that this case be remanded to the circuit court in accordance with Enfinger.

In Enfinger, the appellant pleaded guilty to sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala.Code 1975, and was sentenced as a habitual felony offender to 20 years’ imprisonment. Enfinger’s sentence was split, and he was ordered to time served in the custody of the Sheriff of Baldwin County followed by 3 years’ probation. This Court held that the circuit court did not have the authority under the Split-Sentence Act to split En-finger’s sentence or to impose a term of probation, and, therefore, the circuit court did not have the authority to revoke En-finger’s probation.

In Enfinger this Court stated:

“Section 15-18-8(a), Ala.Code 1975, specifically exempts from the Split-Sentence Act those offenders who have been convicted of ⅛ criminal sex offense involving a child as defined in Section 15-20-21(5).’ Section 15-20-21(5), Ala. Code 1975, defines ‘criminal sex offense involving a child’ as ‘[a] conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.’ Additionally, § 15 — 18—8(b), Ala. Code 1975, specifically precludes the circuit court from imposing a term of probation for offenders convicted of ‘a criminal sex offense involving a child as [340]*340defined in Section 15-20-21(5), which constitutes a Class A or B felony.’ Thus, the circuit court did not have the authority to either impose a split sentence or to impose a term of probation. See § 15-18-8(a) and (b), Ala.Code 1975. Therefore, the ‘execution of [En-finger’s] sentence is illegal.’ Simmons v. State, 879 So.2d 1218, 1222 (Ala.Crim.App.2003).
“In cases where the circuit court had no authority to impose the Split-Sentence Act, the proper remedy has been to remand the case to the circuit court for that court to remove the split portion of the sentence. See e.g., Simmons, supra (holding that, the circuit court had no authority to split a sentence and remanding the case to the circuit court for that court to set aside the split portion of the sentence), Morris v. State, 876 So.2d 1176 (Ala.Crim.App.2003) (same), Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003) (holding that, although the circuit court had authority to split the sentence, the circuit court split the sentence in an improper manner and remanding the ease to the circuit court for that court to ‘reconsider the execution’ of that sentence). Austin[ v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003) ](same).
“Those cases, however, do not contemplate the specific facts of this case — that is, where the circuit court imposes a split sentence and a term of probation under the Split-Sentence Act when it had no authority to do so and later conducts a probation-revocation hearing at which it revokes a defendant’s probationary term and orders that the defendant serve the remainder of his underlying sentence in prison. Thus, the issue before this Court is whether the circuit court’s improper imposition of the Split-Sentence Act can be remedied by the circuit court’s conducting a probation-revocation hearing and revoking a defendant’s probation.
“As discussed above, because the nature of Enfinger’s guilty-plea conviction exempts him from application of the Split-Sentence Act, the circuit court had no authority to apply the Split^-Sentence Act to Enfinger and no authority to impose a term of probation on Enfinger. See § 15-18-8(a) and (b), Ala.Code 1975. Because the circuit court had no authority to split Enfinger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation under § 15-18-8(c), Ala. Code 1975, which provides, in part, that under the Split-Sentence Act the circuit court ‘may revoke or modify any condition of probation or may change the period of probation.’ Because the circuit court had no authority to impose a term of probation or to revoke probation, the circuit court’s order revoking Enfinger’s probation is void.
“Because the circuit court’s probation order is void, the sentence in this ease is analogous to the sentences at issue in Simmons and Morris. Thus, like those cases, we must remand this case to the circuit court for that court to remove the split portion of Enfinger’s sentence, see e.g., Simmons, supra; Morris, supra. To do so, the circuit court must ‘conduct another sentencing hearing and ... reconsider the execution of [Enfinger’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it.’ Austin, 864 So.2d at 1119; Moore, 871 So.2d at 109-10.
“We recognize that the circuit court’s revocation of Enfinger’s probation in this case appears to reach a result that is no different than the result that was obtained in Simmons and Moms — i.e., the probation revocation in essence removed the unauthorized split. Those [341]*341cases, however, did not involve merely the removal of an improper split. In each of those cases, the circuit court was instructed to consider on remand whether the removal of the split would affect the voluntariness of the defendant’s guilty plea. Further, the circuit court in each case was instructed that, if the defendant moved to withdraw his guilty plea, it should allow the defendant to do so. See Simmons, supra; Morris, 876 So.2d at 1178 (‘Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003).’).

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Related

Moore v. State
871 So. 2d 106 (Court of Criminal Appeals of Alabama, 2003)
Austin v. State
864 So. 2d 1115 (Court of Criminal Appeals of Alabama, 2003)
Enfinger v. State
123 So. 3d 535 (Court of Criminal Appeals of Alabama, 2012)
Morris v. State
876 So. 2d 1176 (Court of Criminal Appeals of Alabama, 2003)
Simmons v. State
879 So. 2d 1218 (Court of Criminal Appeals of Alabama, 2003)

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Bluebook (online)
138 So. 3d 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-state-alacrimapp-2013.