Ex Parte Helton , 578 So. 2d 1379 ( 1990 )

578 So. 2d 1379 (1990)

Ex parte Thomas Dean HELTON.
(Re Thomas Dean Helton v. State).

89-866.

Supreme Court of Alabama.

August 10, 1990. Rehearing Denied December 7, 1990.

Thomas B. Prickett II, Oneonta, for petitioner.

Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for respondent.

KENNEDY, Justice.

Thomas Dean Helton was convicted of murder and was sentenced to 10 years in the state penitentiary. His sentence was suspended and he was given five years of probation.

Subsequently, on February 23, 1989, the State filed a motion to revoke Helton's probation for alleged violations of the terms of his probation. Following a hearing on the motion, the trial court revoked Helton's probation. The Court of Criminal Appeals affirmed that action, with an opinion, 578 So. 2d 1377, and this Court granted certiorari review. We now reverse and remand.

The issues are whether the trial court's order revoking Helton's probation complied with the requirements of Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975), and whether it was error for the trial court to consider a DUI conviction where there was allegedly no showing that Helton was represented by counsel or that he had waived the right to counsel.

The trial court's order revoking probation read as follows:

"This being the date heretofore set for hearing for determination of whether the probationary sentence heretofore entered on March 6, 1987, should be revoked for alleged violations. The defendant being present in open court with his attorney of record, Herb Sparks. After consideration of all the evidence heard ore tenus by this Court, [it] is the opinion of this Court that said defendant/probationer has violated the terms and conditions of his probation herein since being placed on probation and is not being rehabilitated as hoped or contemplated by the law, and therefore it is,

"ORDERED that said defendant/probationer, Thomas Dean Helton, has violated the terms and and conditions of his probation and that the probationary sentence be, and [it] is hereby revoked and that said defendant serve his full sentence....

"DONE and ORDERED this the 23rd day of February, 1989 at Oneonta, Alabama."

In Armstrong, this Court held that when revoking probation, the trial judge must enter a written statement detailing the evidence relied upon and setting out the reasons for such revocation. Here, the order does not indicate what evidence the judge based his decision upon or otherwise provide the reasons for the revocation; therefore, the trial judge erred.

The second issue raised by Helton, relating to the DUI conviction, was not properly raised at trial and thus, was not preserved for review. Salter v. State, 470 So. 2d 1360, 1362 (Ala.Cr.App.1975).

REVERSED AND REMANDED.

HORNSBY, C.J., and JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice (dissenting).

The Court of Criminal Appeals held that Helton had failed to preserve error in the trial court and, therefore, that his claim of error was procedurally barred. I think the Court of Criminal Appeals was absolutely correct. Helton concedes that he raised no objection in the trial court, but excuses his failure to object in the trial court, as follows:

"Defendant concedes that this issue was not raised by exception or objection at trial but could not have been because the written order was not entered until after the trial was complete. Alabama Rules of Criminal Procedure Rule 16.2 does not require the objection or exception to an adverse final judgment. Appellant submits that a defendant cannot be required to object to the inadequacy of a written order prior to its being written. This would be impossible."

Helton, in my opinion, apparently refers to the provisions of Rule 16.2(d), of the Temporary Rules of Criminal Procedure (Rule 15.2(d), Alabama Rules of Criminal Procedure, effective January 1, 1991), which states that "lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding." But as I view it, even if that subsection applies, Helton made no objection during the pendency of the proceeding. In any event, the failure of the trial judge to comply with the requirements of Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975), does not, in my judgment, oust the trial court of jurisdiction in a probation revocation matter. As a matter of fact, in Armstrong there was a specific objection made, in the revocation proceeding in the trial court, and the error was preserved for appeal. Here, that is not the case.

Helton argues that "a defendant cannot be required to object to the inadequacy of a written order prior to its being written." He is right, of course, but the Rules of Criminal Procedure do not require that. The Rules do require that a post-trial motion be filed. Temporary Rule 13, "Post-Trial Motions," specifically provides that Helton could have raised any objection he had regarding the sufficiency of the order after the order was entered.^[1] Of course, a motion filed under the provisions of Temporary Rule 13 would be untimely if not filed within 30 days.

The law of appellate review of questions not decided by trial courts seems clear:

"It is a fundamental rule of appellate procedure that, regardless of merits of appellant's contentions, appellate courts will not review questions not decided by the trial court. McWhorter v. Clark, 342 So. 2d 903 (Ala.1977). The Supreme Court cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to nor decided by it. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958). This Rule especially applies in a situation where, as here, an abuse of discretion is alleged. In the present case, Bevill has failed to properly preserve any error the trial Court may have committed in the discretionary function required under ARCP 41(a)(2). Bevill appeals from the dismissal order itself, without ever having made a motion to alter, vacate, set aside or reconsider the trial [c]ourt's order."

Bevill v. Owen, 364 So. 2d 1201, 1203 (Ala. 1979).

Because I am of the opinion that the failure of the trial court to comply with Armstrong should have been raised by Helton in a motion filed pursuant to the provisions of Temporary Rule 13, I am of the opinion that the Court of Criminal Appeals correctly held that any error in that regard had not been preserved; consequently, I must respectfully dissent from that portion of the majority opinion which holds otherwise.

NOTES

[1] Temporary Rule 13(a)(2) provides: "A motion for new trial must be filed no later than thirty (30) days after sentence is pronounced."