Section provides that probation for a felony may not exceed five years. See also Watkins v. Thus, the court in Smitherman did not hold that any probation action could be commenced after the expiration of the maximum probationary period set by statute. In the present case, the action to revoke the appellant's probation was not commenced until the second arrest warrant was issued for the appellant, 26 months after the appellant was originally placed on probation.
In this case, the appellant was arrested once before the expiration of the two-year period for violating the terms of his probation. However, at that time the appellant's probation was reinstated and extended to September 1, , a date 28 months from the date he was originally placed on probation.
The court was placing the appellant on probation for four months longer than allowed by law when it, for the second time, placed the appellant on probation until September 1, The city argues that the issuance of the two arrest warrants tolled the running of the probationary period, Kiker v. Thus, the City asserts, the municipal court did have authority to revoke the appellant's probation because the appellant had not served a total of 24 months on probation.
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This same argument was rejected by this court in Hambley v. The court in Hambley stated:. Appellate courts have authority to interpret ambiguous language in a statute. Hawes, So.
However, there is no ambiguity here. The court does not have the option of continuing the defendant's probation indefinitely. This opinion does not say or imply, as the dissent contends, that a probationer may beat the system simply by leaving the county. Peoples, supra. In the Peoples case, the action to revoke probation was commenced before the time ran out.
Under our system of government, courts do not legislate. Legislatures do.
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Our duty is to apply existing law to the fact situations presented to us. In the appellant's case, when the court purported to revoke the appellant's probation, two years had expired since the commencement of the probationary period. Thus, the court lacked the authority to revoke the appellant's probation. The circuit court erred in denying the appellant's petition for a writ of habeas corpus. This cause is remanded to the Circuit Court for Houston County for proceedings not inconsistent with this decision.
Therefore, I must dissent. The statute does indeed state that "in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years"; yet Smitherman clearly holds:. When the appellant failed to appear for court, the municipal judge issued a probation revocation warrant three days before the expiration of the appellant's probation. Sixteen months elapsed before he was arrested pursuant to that warrant.
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Instead of imposing the original sentence, the court gave the appellant "another chance" and extended his probation for another six months. Before that probationary period expired, the appellant once again failed to appear and another probation revocation warrant was issued. As Judge Taylor wrote in Peoples v.
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The City is correct that the appellant in this matter actually served only nine months on probation because at that point the time was tolled pending probation revocation warrants. Enter your email. Miller v. City of Dothan Annotate this Case. Court of Criminal Appeals of Alabama. November 9, Thomas D. Get yours at no cost at Signs Etcetera Inc. They will accept contributions.
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