Daural Eugene Kelly v. State of Alabama (Appeal from Baldwin Circuit Court: CC-20-169.70)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
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CR-2023-0851
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Daurel Eugene Kelly

v.

State of Alabama

Appeal from Baldwin Circuit Court
(CC-20-169.70)

MINOR, Judge.

This appeal requires us to determine if the Baldwin Circuit Court

erred in revoking Daurel Eugene Kelly's probation solely because he was

arrested for new offenses. For the reasons below, we reverse the circuit
CR-2023-0851

court's judgment and remand this case to the circuit court for proceedings

consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

It appears from the limited record on appeal that Kelly began

serving his term of probation in April 2022 after being convicted of felony

driving under the influence, see § 32-5A-191(h), Ala. Code 1975.1 (C. 2;

R. 13.) At some point after his probation began, Kelly was transferred to

the Guntersville Probation Office. (R. 13.)

Although there are no delinquency reports in the record on appeal,

it appears that Officer Debra Hartman with the Marshall County

Probation Office filed a delinquency report alleging that Kelly was

arrested in November 2022 for public intoxication and that Officer

Shannon Hale with the Marshall County Probation Office filed a

delinquency report in July 2023 alleging that Kelly was arrested in June

2023 for attempting to elude law enforcement and leaving the scene of an

accident with injuries. (R. 14.) In October 2023, the circuit court held a

1Kelly asserts, and the State does not dispute, that the circuit court

sentenced Kelly to 8 years' imprisonment, split to serve 19 months'
imprisonment followed by 3 years' supervised probation. (Kelly's brief,
p. 3; State's brief, p. 1.)
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revocation hearing at which it heard testimony from Justin Marsh, a

probation officer with the Alabama Bureau of Pardons and Paroles, and

Matthew Smith, a police officer with the Albertville Police Department.

Off. Marsh testified that, in April 2022, Kelly signed an order

acknowledging his receipt of the rules and regulations of his probation.

Off. Smith testified that he arrested Kelly in June 2023 for attempting to

elude law enforcement and for leaving the scene of an accident with

injuries, and he testified to the circumstances of the alleged offenses. (R.

3-12.) The State presented no evidence about the events underlying

Kelly's arrest for public intoxication.

At the end of the revocation hearing, the circuit court stated:

"Okay. All right. As to charge number one, there was
not any evidence submitted as to the charge of public
intoxication, so that charge will be dismissed. However, as to
charges two and three of the supplemental report, based on
the testimony of Officer Smith from Albertville Police
Department and Officer Justin Marsh of the Alabama Bureau
of Pardons and Paroles, the Court is reasonably satisfied from
the evidence that [Kelly] did violate the terms and conditions
of his probation based on the arrests in Albertville for
attempting to elude and leaving the scene of an accident with
injury.

"Court does find that there is sufficient nonhearsay
evidence that has been presented at the hearing to support
this finding of revocation, and I am going to go ahead and
order at this time that, Mr. Kelly, you serve out your sentence

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of eight years in the Alabama Department of Corrections.
And any and all time you've been awaiting the hearing today
will be credited toward that eight-year sentence at this time."

(R. 19.) The same day, the circuit court issued a written order of

revocation:

"This matter having been set for hearing on probation
revocation on October 12, 2023, and [Kelly] having appeared
with counsel, James Coleman, and denying the allegations of
the probation revocation, and upon testimony presented, it is
therefore the finding of this Court that [Kelly] was arrested
on new charges of Public Intoxication, Attempt to Elude, and
Leaving the Scene of an Accident, which is a violation of the
conditions of [Kelly's] probation, therefore it is hereby

"ORDERED that [Kelly's] probation is due to be and is
hereby revoked and [Kelly] is committed to the custody of the
Director of the Alabama Department of Corrections to serve
the balance of his original 8-year sentence. [Kelly] is to be
given credit for any time served on this case."

(C. 5.) Kelly timely appealed.

DISCUSSION

On appeal, Kelly argues, among other things, that the circuit court

erred by revoking his probation solely because he was arrested for new

offenses while on probation.2 We agree.

2Because we reverse Kelly's probation revocation on this basis, we

do not address the remaining issues Kelly raises on appeal.
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This Court recently addressed a similar issue in Nelson v. State,

331 So. 3d 1194 (Ala. Crim. App. 2021), in which the Montgomery Circuit

Court revoked Jamon Drekez Nelson's probation after a hearing at which

the State presented evidence from which the circuit court found that

Nelson had violated the conditions of his probation by being arrested for

new criminal offenses. On appeal, Nelson argued that the circuit court

erred when it revoked his probation solely because he was arrested for

new offenses while on probation. Relying on Allen v. State, 644 So. 2d 45

(Ala. Crim. App. 1994), this Court agreed, noting that merely having

"been arrested for new offenses … is not a sufficient basis for revoking

probation." Nelson, 331 So. 3d at 1197; id. at 1196 ("[A]lthough ' "no final

conviction of a probationer on the offense charged is required before his

probation may be revoked," ' Allen, 644 So. 2d at 46 (quoting Smith v.

State, 445 So. 2d 573, 575 (Ala. Crim. App. 1984)), a ' "mere arrest" or the

filing of charges is an insufficient basis for revoking one's probation.' Id.

at 45-46 (quoting Roberson v. State, 572 So. 2d 1323, 1325 (Ala. Crim.

App. 1990))."). This Court added that "[t]he fact that an arrest is not a

sufficient basis for the revocation of probation is true even if probation is

conditioned upon the probationer's not being arrested for new offenses."

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Id. at 1197 (citing Calhoun v. State, 854 So. 2d 1209, 1210 (Ala. Crim.

App. 2002)). Thus, this Court reversed the order revoking Nelson's

probation because "the circuit court did not find that it was reasonably

satisfied that Nelson had committed the new offenses for which he had

been arrested but, instead, revoked Nelson's probation based solely on

the fact that Nelson had been arrested for those offenses." Id. at 1197.

The circuit court's order revoking Kelly's probation does not state

that the court was reasonably satisfied that Kelly had committed the new

offenses of public intoxication, attempting to elude law enforcement, and

leaving the scene of an accident with injuries. Instead, the circuit court's

order bases the revocation of Kelly's probation on the court's finding that

Kelly had been arrested for new offenses, which, as noted above, is not a

proper basis for revoking probation, Nelson, supra, and the State

concedes this fact in its brief on appeal. (State's brief, p. 5) ("[T]he trial

court's order of revocation … stated that it was satisfied that Kelly had

been arrested for new charges as opposed to having actually committed

the new offenses to the reasonable satisfaction of the trial court."). "[A]

circuit court must be ' "reasonably satisfied … of the truth of the charge" '

before it can revoke probation based on an allegation that the probationer

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has committed the new offense with which he or she was charged."

Nelson, 331 So. 3d at 1196-97 (emphasis added in Nelson) (quoting Allen,

644 So. 2d at 46, quoting in turn, Smith, 445 So. 2d at 575). And while

the circuit court's revocation order states that Kelly's being arrested for

new offenses violated the conditions of Kelly's probation, that finding is

still not a sufficient basis for revoking Kelly's probation. See Nelson,

supra. This Court has stated:

" 'If merely being arrested is sufficient for revocation of
probation, then revocation would lie within the discretion of
police officers rather than with judicial officers. In such a
case, judges would only perform the ministerial duty of
determining if an arrest had been made and then signing the
revocation order. The decision to revoke probation is a
judicial function and should be based upon the appellant's
conduct and not upon an accusation only. The State must
submit enough substantive evidence to reasonably satisfy the
trier of the facts that a condition of probation was breached.' "

Calhoun, 854 So. 2d at 1210 (quoting Hill v. State, 350 So. 2d 716, 718

(Ala. Crim. App. 1977)). Thus, because the circuit court revoked Kelly's

probation based solely on the fact that Kelly had been arrested for new

offenses but did not indicate that it was reasonably satisfied that Kelly

had committed the new offenses for which he had been arrested, we

reverse the circuit court's order revoking Kelly's probation.

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The State asks this Court to remand the case because, it says, the

circuit court's revocation order fails to meet Rule 27.6(f), Ala. Crim. P.,

which states: "The judge shall make a written statement or state for the

record the evidence relied upon and the reasons for revoking probation."

"In McCoo v. State, 921 So. 2d 450, 462 (Ala. 2005), the
Alabama Supreme Court relaxed the requirements of a
written probation-revocation order and this court's review of
that order:

" '[T]he 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)].' "

Williams v. State, 138 So. 3d 342, 344 (Ala. Crim. App. 2013). See also

Ex parte Garlington, 998 So. 2d 458, 458-59 (Ala. 2008) ("In order to meet

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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 [v. State], 921 So. 2d [450,]

462 [(Ala. Crim. App. 2005)] (emphasis added).").

The State is correct that the circuit court's written "order of

revocation failed to state the specific evidence that it relied upon in

revoking Kelly's probation." (State's brief, p. 5.) Even so, the circuit court

stated orally at the revocation hearing that "based on the testimony of

Officer Smith from Albertville Police Department and Officer Justin

Marsh of the Alabama Bureau of Pardons and Paroles, the Court is

reasonably satisfied from the evidence that [Kelly] did violate the terms

and conditions of his probation" because he was arrested for new offenses.

(R. 19.) Thus, a review of the record shows that the circuit court's

findings were sufficient to comply with Rule 27.6(f), Ala. R. Crim. P., and

there is no need to remand this case, as the State argues, for the circuit

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court "to issue a revised written order clarifying the evidence it relied

upon and its reasons for the revocation." 3 (State's brief, p. 5.)

CONCLUSION

Because the circuit court improperly found that Kelly's arrests for

new offenses were a sufficient basis in and of themselves on which to

revoke his probation, we reverse the circuit court's order revoking Kelly's

probation and remand the case for further proceedings consistent with

this opinion.

REVERSED AND REMANDED.

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

3In Nelson, supra, this Court first remanded that case after
agreeing with Nelson's argument that the circuit court's revocation order
failed to meet Rule 27.6(f), Ala. R. Crim. P. On remand, the circuit court's
revised written order clarified that Nelson's probation revocation was
based solely on Nelson's being arrested for new offenses. In Kelly's case,
however, the record is clear that the circuit court revoked Kelly's
probation based solely on his being arrested for new offenses.
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