David Lee Fitts v. State of Alabama (Appeal from Etowah Circuit Court: CC-20-420.70 and CC-21-1431.70)

Rel: March 28, 2025

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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
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CR-2024-0283
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David Lee Fitts

v.

State of Alabama

Appeal from Etowah Circuit Court
(CC-20-420.70 and CC-21-1431.70)

ANDERSON, Judge.

David Lee Fitts appeals the Etowah Circuit Court's order revoking

his probation. On appeal, Fitts argues that the circuit court abused its

discretion in revoking his probation because, he says, the State did not
CR-2024-0283

present nonhearsay evidence indicating that he had absconded. This

Court agrees. Thus, for the following reasons, we reverse and remand.

In June 2022, Fitts pleaded guilty to two counts of possession or

receipt of a controlled substance. (C. 8.) He received a two-year suspended

sentence and was placed on two years' probation. (C. 8.) In April 2023,

Probation Officer Scottie Waldrep drafted a delinquency report alleging

that Fitts had violated the conditions of his probation by absconding. (C.

7.) Specifically, the report alleged that, after initially reporting following

his graduation from a drug-treatment program in February 2023, Fitts

ceased contact with Probation Officer Waldrep. (C. 7.) According to the

report, Probation Officer Waldrep "contacted all [of Fitts's] phone

contacts[,] and [Fitts] ... failed to return [the] calls." (C. 7.) But Fitts's

"wife did call [Probation Officer Waldrep] back and said that [Fitts] ha[d]

left her and [wa]s back on drugs." (C. 7.) The report further alleged that,

in April 2023, Probation Officer Waldrep "conducted a home visit at

Fitts['s] residence and spoke to his sister. She advised that he moved to

Attalla, A[labama,] but didn't know the address." (C. 7.) Probation Officer

Waldrep also stated that he "checked all the local jails to ensure [Fitts]

ha[d] not been held." (C. 7.) Probation Officer Waldrep concluded that

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"Fitts [wa]s actively avoiding his supervision by making his whereabouts

unknown and again making it difficult for [him] to keep up with [Fitts]."

(C. 7.)

Following Fitts's arrest, the circuit court held a revocation hearing.

The State's lone witness was Probation Officer Courtney Swain. (R. 6.)

He testified that Fitts was supervised out of Marshall County, that a

"petition was filed because [Fitts] failed to report as instructed, [and that]

his whereabouts w[ere] unknown to the officer in Marshall County." (R.

6-7.) Probation Officer Swain also confirmed that records showed Fitts

had last reported in February 2023 and that during a home visit people

at his listed residence indicated that he no longer lived there. (R. 7.)

On cross-examination, Probationer Officer Swain conceded that he

had never spoken with Fitts because he "ha[d] a Marshall County officer

supervising him, and the report was filed by that officer." (R. 8.) He

further confirmed that he did not speak with Probation Officer Waldrep

and that, "based on the report that the officer submitted, what the

findings were, [he] submitted [them] to the [c]ourt." (R. 9.)

Fitts's counsel subsequently argued that the State had presented

no nonhearsay evidence indicating that Fitts had absconded:

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"[A]ny proof of absconding or even the failure to report is
based on hearsay. ... There's been no direct testimony today
other than what someone else has done or someone else has
written or someone else has gone to a residence or someone
else has made a phone call. So everything that the probation
officer here is stating is hearsay. While hearsay is allowed,
hearsay can't be the only basis for revocation."

(R. 11-12.) Cocounsel likewise asserted that the State had not presented

any nonhearsay evidence of Fitts's alleged absconding: "[T]hey've offered

no testimony that they've had any interaction with him, other than just

what he's been doing in Marshall County. No one from Marshall County

is here." (R. 12-13.) The circuit court concluded, however, that, "[b]ased

upon the report ... of Scott[ie] Waldr[e]p in the Marshall County office of

the Bureau of Pardons and Paroles, as relayed by Officer Swain, the

[c]ourt finds that the charge of absconding is sustained. ... The Defendant

is revoked to his underlying sentence." (R. 15-16.) The circuit court

repeated its decision in a written order. (C. 33.) Fitts later moved the

circuit court to set aside its revocation order, again arguing that the State

had not presented any nonhearsay evidence indicating that he had

absconded. (C. 34-35.) The circuit court denied Fitts's motion (C. 38), and

this appeal followed.

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CR-2024-0283

On appeal, Fitts argues (1) that the circuit court's ruling was solely

based on hearsay evidence, (2) that the circuit court did not conduct a

proper revocation hearing, and (3) that the circuit court's revocation

order was deficient. Because this Court agrees that the State presented

no nonhearsay evidence indicating that Fitts had absconded, we need not

address Fitts's other arguments.

In probation-revocation proceedings, " 'the [circuit] court is not

bound by strict rules of evidence, and the alleged violation of a valid

condition of probation need not be proven beyond a reasonable doubt.' "

Lawrence v. State, 389 So. 3d 1237, 1241 (Ala. Crim. App. 2023) (quoting

Singleton v. State, 209 So. 3d 529, 533 (Ala. Crim. App. 2015)). Instead,

" ' "the [circuit] court 'need only ... be reasonably satisfied from the

evidence that the probationer has violated the conditions of his

probation.' " ' " Id. (citations omitted).

" ' "It is well settled that hearsay evidence may not form the sole

basis for revoking an individual's probation." ' " McCary v. State, 385 So.

3d 584, 586 (Ala. Crim. App. 2023) (quoting Corbitt v. State, 369 So. 3d

682, 685 (Ala. Crim. App. 2022)). That being said, " ' "hearsay evidence is

admissible in a revocation proceeding," ' " and " 'a combination of both

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hearsay and nonhearsay evidence may be sufficient to warrant

revocation.' " Id. (citations omitted). When the State " ' " presents a

mixture of hearsay and nonhearsay evidence to show that a defendant

violated his probation by committing a new offense, the circuit court

cannot revoke a defendant's probation for that violation unless the

nonhearsay evidence connects the defendant to the alleged offense." ' " Id.

(citations and emphasis omitted); see also Sams v. State, 48 So. 3d 665,

670 (Ala. 2010).

In McCary, the defendant's probation officer filed a delinquency

report alleging that he had absconded. Id. at 585. At the revocation

hearing, the State presented two probation officers as witnesses, but

their testimony was solely based on the delinquency report, which was

filed by a different probation officer. Id. The two probation officers even

conceded that they had no firsthand knowledge of the defendant's alleged

violation, and the probation officer that authored the delinquency report

did not testify. Id. The defendant's attorney moved to dismiss the case

and argued that hearsay evidence could not form the sole basis of the

revocation of the defendant's probation. Id. But the circuit court denied

the motion and ultimately revoked the defendant's probation. Id.

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This Court held that the circuit court had erred in revoking the

defendant's probation because the State had failed to present any

nonhearsay evidence indicating that the defendant had absconded. Id. at

586. It noted that the State's two witnesses, by their own admission, had

no firsthand knowledge of the alleged violation. Id. It also noted that the

witnesses' knowledge of the alleged violation came from the delinquency

report, which was authored by a third person who did not testify at the

hearing. Id.

Here, like in McCary, the State did not present any nonhearsay

evidence supporting its allegation that Fitts had absconded. The State's

lone witness, Probation Officer Swain, based his testimony on the

delinquency report and records entered by Probation Officer Waldrep (R.

9), and Probation Officer Waldrep did not testify. Probation Officer Swain

also conceded that he had never spoken with Fitts because he was

supervised by Probation Officer Waldrep in Marshall County and that he

had never spoken with Probation Officer Waldrep about Fitts's alleged

violation. (R. 8-9.)

Though the circuit court's order was based on Probation Officer

Waldrep's report "as relayed by Officer Swain," the State argues that

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"[t]he fact that it took eight months to locate and arrest Fitts on the

probation violation writ was sufficient corroboration of the reliable

hearsay evidence that Fitts had absconded." (State's brief at 9.) We

disagree. Although Probation Officer Swain confirmed that Fitts was

arrested in February 2024 (R. 10), the officer conceded that the only

information he possessed about Fitts's case was the report on a

delinquent probationer filed by a probation officer in another county. (R.

9.) In fact, Officer Swain testified that "anything that ha[d] been done or

been searched … or anything else was done by an officer" in that other

county. (Id.); cf. Ex parte Phillips, 287 So. 3d 1179, 1208 (Ala. 2018)

(quoting Stephens v. First Commercial Bank, 45 So. 3d 735, 738 (Ala.

2010)) (" '[I]f [the witness] is testifying based upon his personal

knowledge and not merely repeating the contents of documents, his

statements are by definition not hearsay.' "). Further, the circuit court did

not cite the "apparently acknowledged" absconding as a basis for

revoking Fitts's probation but, rather, as a reason for departing from

Probation Officer Waldrep's recommendation. (R. 15.) Finally, the State

cites no specific authority establishing, or even suggesting, that the bare

fact that a period passed between the issuance of an arrest warrant and

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a probationer's arrest can constitute nonhearsay evidence of absconding.

(State's brief at 9.) As this Court has previously said:

" 'If merely being arrested is sufficient for revocation, then
revocation would lie within the discretion of police officers,
rather than 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 on the appellant's conduct and not upon an
accusation only. The State must submit enough substantive
evidence to reasonably satisfy the trier of facts that a
condition of probation was breached.' "

Mitchell v. State, 462 So. 2d 740, 742 (Ala. Crim. App. 1984) (quoting Hill

v. State, 350 So. 2d 716, 718 (Ala. Crim. App. 1977)).

Therefore, because the State failed to present any nonhearsay

evidence indicating that Fitts had absconded, the circuit court abused its

discretion by revoking Fitts's probation. Accordingly, this Court reverses

the circuit court's order revoking Fitts's probation and remands this case

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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