SB198ENGROSSED
Page 0
P14PEE-2
By Senator Orr
RFD: Judiciary
First Read: 11-Apr-23
2023 Regular Session
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A BILL
TO BE ENTITLED
AN ACT
Relating to sentencing; to amend Sections
12-25-34.2, 13A-4-1, 13A-4-2, 13A-4-3, 13A-5-6,
15-18-8, and 15-22-54, Code of Alabama 1975, to add
additional offenses that would be subject to the
presumptive sentencing guidelines; to modify the
criminal penalties for criminal solicitation, attempt,
and criminal conspiracy; to give a judge discretion
when sentencing a person convicted of a Class C or
Class D felony offense; to make nonsubstantive,
technical revisions to update the existing code
language to current style; and in connection therewith
would have as its purpose or effect the requirement of
a new or increased expenditure of local funds within
the meaning of Section 111.05 of the Constitution of
Alabama of 2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 12-25-34.2, 13A-4-1, 13A-4-2,
13A-4-3, 13A-5-6, 15-18-8, and 15-22-54, Code of Alabama 1975,
are amended to read as follows:
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"§12-25-34.2
(a) For the purposes of this section, the following
words shall have the following meanings:
(1) AGGRAVATING FACTORS. Substantial and compelling
reasons justifying an exceptional sentence whereby the
sentencing court may impose a departure sentence above the
presumptive sentence recommendation for an offense.
Aggravating factors may result in dispositional or sentence
range departures, or both, and shall be stated on the record
by the court.
(2) DEPARTURE. A sentence which that departs from the
presumptive sentence recommendation for an offender.
(3) DISPOSITION. The part of the sentencing courts
presumptive sentence recommendation other than sentence
length.
(4) DISPOSITIONAL DEPARTURE. A sentence whichthat
departs from the presumptive sentence recommendation for
disposition of sentence.
(5) MITIGATING FACTORS. Substantial and compelling
reasons justifying an exceptional sentence whereby the
sentencing court may impose a departure sentence below the
presumptive sentence recommendation for an offense. Mitigating
factors may result in disposition or sentence range
departures, or both, and shall be stated on the record by the
court.
(6) NONVIOLENT OFFENSES. As defined in Section
12-25-32.
(7) PRESUMPTIVE SENTENCE RECOMMENDATION. The
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recommended sentence range and disposition provided in the
sentencing standards.
(8) SENTENCE RANGE. The sentencing court's
discretionary range of length of sentence as provided and
recommended in the presumptive sentencing recommendation.
(9) SENTENCE RANGE DEPARTURE. A sentence whichthat
departs from the presumptive sentence recommendation as to the
sentence range.
(10) VIOLENT OFFENSES. As defined in Section 12-25-32.
(b)(1) The voluntary sentencing standards as provided
for in Section 12-25-34, as applied to nonviolent offenses
shall become presumptive sentencing standards effective
October 1, 2013, to the extent the modification adopted by the
Alabama Sentencing Commission become effective October 1,
2013. The standards shall be applied by the courts in
sentencing subject to departures as provided herein. To
accomplish this purpose as to the existing initial voluntary
sentencing standards, the Alabama Sentencing Commission shall
adopt modifications to the standards, worksheets, and
instructions to the extent necessary to implement this
provision including, but not limited to, defining aggravating
and mitigating factors that allow for departure from the
presumptive sentencing recommendations. The commission's
modifications shall be presented to the Legislature in the
commission's annual report within the first five legislative
days of the 2013 Regular Session.
(2) The Alabama Sentencing Commission shall immediately
adopt modifications to the standards, worksheets, and
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instructions to the extent necessary to implement this act.
The amendatory provisions of this act shall supersede any
standards, worksheets, and instructions of the commission that
are in conflict with these amendatory provisions.
(c) Durational and dispositional departures from the
presumptive sentencing standards shall be subject to appellate
review. Along with the modifications provided for in
subsection (b), the Alabama Sentencing Commission shall
recommend a narrowly defined scope of appellate review
applicable to departures from presumptive sentencing
recommendations. The scope of appellate review shall become
effective upon approval by an act of the Legislature enacted
by bill."
"§13A-4-1
(a)(1) A person is guilty of criminal solicitation if,
with the intent that another person engage in conduct
constituting a crime, he or she solicits, requests, commands
or importunes such otheranother person to engage in such
conduct.
(2) A person may not be convicted of criminal
solicitation upon the uncorroborated testimony of the person
allegedly solicited, and there must be proof of circumstances
corroborating both the solicitation and the defendant's
intent.
(b) A person is not liable under this section if, under
circumstances manifesting a voluntary and complete
renunciation of his or her criminal intent, he or she (1)
notified the person solicited of his or her renunciation and
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(2) gave timely and adequate warning to the law enforcement
authorities or otherwise made a substantial effort to prevent
the commission of the criminal conduct solicited. The burden
of injecting this issue is on the defendant, but this does not
shift the burden of proof.
(c) A person is not liable under this section when his
or her solicitation constitutes conduct of a kind that is
necessarily incidental to the commission of the offense
solicited. When the solicitation constitutes an offense other
than criminal solicitation whichthat is related to but
separate from the offense solicited, the defendant is guilty
of suchthe related offense only and not of criminal
solicitation.
(d) It is no defense to a prosecution for criminal
solicitation that the person solicited could not be guilty of
the offense solicited because of any of the following :
(1) Criminal irresponsibility or other legal incapacity
or exemption; or.
(2) Unawareness of the criminal nature of the conduct
solicited or of the defendant's criminal purpose ; or.
(3) Any other factor precluding the mental state
required for the commission of the offense in question.
(e) It is no defense to a prosecution for criminal
solicitation that the defendant belongs to a class of persons
who by definition are legally incapable in an individual
capacity of committing the offense that he or she solicited
another to commit.
(f) Criminal solicitation is a:
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(1) Class A felony if the offense solicited is murder.
(2) Class B felony if the offense solicited is a Class
A felony.
(3) Class C felony if the offense solicited is a Class
B felony.
(4) Class D felony if the offense solicited is a Class
C felony.
(4)(5) Class A misdemeanor if the offense solicited is
a Class CD felony.
(5)(6) Class B misdemeanor if the offense solicited is
a Class A misdemeanor.
(6)(7) Class C misdemeanor if the offense solicited is
a Class B misdemeanor.
(7)(8) Violation if the offense solicited is a Class C
misdemeanor."
"§13A-4-2
(a) A person is guilty of an attempt to commit a crime
if, with the intent to commit a specific offense, he or she
does any overt act towards the commission of suchthe offense.
(b) It is no defense under this section that the
offense charged to have been attempted was, under the
attendant circumstances, factually or legally impossible of
commission, if suchthe offense could have been committed had
the attendant circumstances been as the defendant believed
them to be.
(c) A person is not liable under this section if, under
circumstances manifesting a voluntary and complete
renunciation of this criminal intent, he or she avoided the
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commission of the offense attempted by abandoning his or her
criminal effort and, if mere abandonment is insufficient to
accomplish such avoidance, by taking further and affirmative
steps whichthat prevented the commission thereof. The burden
of injecting this issue is on the defendant, but this does not
shift the burden of proof.
(d) An attempt is a:
(1) Class A felony if the offense attempted is murder.
(2) Class B felony if the offense attempted is a Class
A felony.
(3) Class C felony if the offense attempted is a Class
B felony.
(4) Class D felony if the offense attempted is a Class
C felony.
(4)(5) Class A misdemeanor if the offense attempted is
a Class CD felony.
(5)(6) Class B misdemeanor if the offense attempted is
a Class A misdemeanor.
(6)(7) Class C misdemeanor if the offense attempted is
a Class B misdemeanor.
(7)(8) Violation if the offense attempted is a Class C
misdemeanor."
"§13A-4-3
(a) A person is guilty of criminal conspiracy if, with
the intent that conduct constituting an offense be performed,
he or she agrees with one or more persons to engage in or
cause the performance of suchthe conduct, and any one or more
of suchthe persons does an overt act to effect an objective of
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the agreement.
(b) If a person knows or should know that one with whom
he or she agrees has in turn agreed or will agree with another
to effect the same criminal objective, he or she shall be
deemed to have agreed with suchthe other person, whether or
not he or she knows the other's identity.
(c) A person is not liable under this section if, under
circumstances manifesting a voluntary and complete
renunciation of his criminal purpose, he or she gave a timely
and adequate warning to law enforcement authorities or made a
substantial effort to prevent the enforcement of the criminal
conduct contemplated by the conspiracy. Renunciation by one
conspirator, however, does not affect the liability of another
conspirator who does not join in the abandonment of the
conspiratorial objective. The burden of injecting the issue of
renunciation is on the defendant, but this does not shift the
burden of proof.
(d) It is noNone of the following is a defense to a
prosecution for criminal conspiracy that:
(1) The person, or persons, with whom defendant is
alleged to have conspired has been acquitted, has not been
prosecuted or convicted, has been convicted of a different
offense, or is immune from prosecution , or.
(2) The person, or persons, with whom defendant
conspired could not be guilty of the conspiracy or the object
crime because of lack of mental responsibility or culpability,
or other legal incapacity or defense , or.
(3) The defendant belongs to a class of persons who by
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definition are legally incapable in an individual capacity of
committing the offense that is the object of the conspiracy.
(e) A conspirator is not liable under this section if,
had the criminal conduct contemplated by the conspiracy
actually been performed, he or she would be immune from
liability under the law defining the offense or as an
accomplice under Section 13A-2-24.
(f) Liability as accomplice. Accomplice liability for
offenses committed in furtherance of a conspiracy is to be
determined as provided in Section 13A-2-23.
(g) Criminal conspiracy is a:
(1) Class A felony if an object of the conspiracy is
murder.
(2) Class B felony if an object of the conspiracy is a
Class A felony.
(3) Class C felony if an object of the conspiracy is a
Class B felony.
(4) Class D felony if an object of the conspiracy is a
Class C felony.
(4)(5) Class A misdemeanor if an object of the
conspiracy is a Class CD felony.
(5)(6) Class B misdemeanor if an object of the
conspiracy is a Class A misdemeanor.
(6)(7) Class C misdemeanor if an object of the
conspiracy is a Class B misdemeanor.
(7)(8) Violation if an object of the conspiracy is a
Class C misdemeanor."
"§13A-5-6
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(a) Sentences for felonies shall be for a definite term
of imprisonment, which imprisonment includes hard labor,
within the following limitations:
(1) For a Class A felony, for life or not more than 99
years or less than 10 years.
(2) For a Class B felony, not more than 20 years or
less than 2two years.
(3) For a Class C felony, not more than 10 years or
less than 1one year and 1one day and must be in accordance
with subsection (b) of Section 15-18-8 unless sentencing is
pursuant to Section 13A-5-9 or the offense is a sex offense
pursuant to Section 15-20A-5 .
(4) For a Class D felony, not more than 5five years or
less than 1one year and 1one day and must be in accordance
with subsection (b) of Section 15-18-8 .
(5) For a Class A felony in which a firearm or deadly
weapon was used or attempted to be used in the commission of
the felony, or a Class A felony sex offense involving a child
as defined in Section 15-20A-4, not less than 20 years.
(6) For a Class B or C felony in which a firearm or
deadly weapon was used or attempted to be used in the
commission of the felony, or a Class B felony sex offense
involving a child as defined in Section 15-20A-4, not less
than 10 years.
(b) The actual time of release within the limitations
established by subsection (a) shall be determined under
procedures established elsewhere by law.
(c) In addition to any penalties heretofore or
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hereafterotherwise provided by law, in all cases where an
offender is designated as a sexually violent predator pursuant
to Section 15-20A-19, or where an offender is convicted of a
Class A felony sex offense involving a child as defined in
Section 15-20A-4, and is sentenced to a county jail or the
Alabama Department of Corrections, the sentencing judge shall
impose an additional penalty of not less than 10 years of
post-release supervision to be served upon the defendant's
release from incarceration.
(d) In addition to any penalties heretofore or
hereafterotherwise provided by law, in all cases where an
offender is convicted of a sex offense pursuant to Section
13A-6-61, 13A-6-63, or 13A-6-65.1, when the defendant was 21
years of age or older and the victim was six years of age or
less at the time the offense was committed, the defendant
shall be sentenced to life imprisonment without the
possibility of parole."
"§13A-5-9
(a) In all cases when it is shown that a criminal
defendant has been previously convicted of a Class A, Class B,
or Class C felony and after the conviction has committed
another Class A, Class B, or Class C felony, he or she must
shall be punished as follows:
(1) On conviction of a Class D felony, he or she shall
be punished for a Class C felony.
(1)(2) On conviction of a Class C felony, he or she
must shall be punished for a Class B felony.
(2)(3) On conviction of a Class B felony, he or she
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must shall be punished for a Class A felony.
(3)(4) On conviction of a Class A felony, he or she
must shall be punished by imprisonment for life or for any
term of not more than 99 years but not less than 15 years.
(b) In all cases when it is shown that a criminal
defendant has been previously convicted of any two felonies
that are Class A, Class B, or Class C felonies and after such
convictions has committed another Class A, Class B, or Class C
felony, he or she must shall be punished as follows:
(1) On conviction of a Class D felony, he or she shall
be punished for a Class B felony.
(1)(2) On conviction of a Class C felony, he or she
mustshall be punished for a Class A felony.
(2)(3) On conviction of a Class B felony, he or she
mustshall be punished by imprisonment for life or for any term
of not more than 99 years but not less than 15 years.
(3)(4) On conviction of a Class A felony, he or she
mustshall be punished by imprisonment for life or for any term
of not less than 99 years.
(c) In all cases when it is shown that a criminal
defendant has been previously convicted of any three felonies
that are Class A, Class B, or Class C felonies and after such
convictions has committed another Class A, Class B, or Class C
felony, he or she must shall be punished as follows:
(1) On conviction of a Class D felony, he or she shall
be punished for a Class A felony.
(1)(2) On conviction of a Class C felony, he or she
must be punished by imprisonment for life or for any term of
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not more than 99 years but not less than 15 years.
(2)(3) On conviction of a Class B felony, he or she
mustshall be punished by imprisonment for life or any term of
not less than 20 years.
(3)(4) On conviction of a Class A felony, where the
defendant has no prior convictions for any Class A felony, he
or she mustshall be punished by imprisonment for life or life
without the possibility of parole, in the discretion of the
trial court.
(4)(5) On conviction of a Class A felony, where the
defendant has one or more prior convictions for any Class A
felony, he or she must shall be punished by imprisonment for
life without the possibility of parole.
(d) In all cases when it is shown that a criminal
defendant has been previously convicted of any two or more
felonies that are Class A or Class B felonies and after such
convictions has committed a Class D felony, upon conviction,
he or she must be punished for a Class C felony.
(e) In all cases when it is shown that a criminal
defendant has been previously convicted of any three or more
felonies and after such convictions has committed a Class D
felony, upon conviction, he or she must be punished for a
Class C felony."
"§15-18-8
(a) When a defendant is convicted of an offense, other
than a sex offense involving a child as defined in Section
15-20A-4, that constitutes a Class A or Class B felony
offense, and receives a sentence of 20 years or less , in any
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court having jurisdiction to try offenses against the State of
Alabama and the judge presiding over the case is satisfied
that the ends of justice and the best interests of the public
as well as the defendant will be served thereby, he or she may
order:
(1) That aIn cases where the defendant is convicted of
a Class A, Class B, Class C or Class BD felony beand the
imposed sentence is not more than 15 years, that the convicted
defendant be confined in a prison, jail-type institution, or
treatment institution for a period not exceeding three years
in cases where the imposed sentence is not more than 15 years,
and, that the execution of the remainder of the sentence be
suspended notwithstanding any provision of the law to the
contrary, and that the defendant be placed on probation for
sucha period and upon such terms as determined by the court
deems best.
(2) That aIn cases where the defendant is convicted of
a Class A, Class B, or Class C felony with anand the imposed
sentence ofis greater than 15 years but not more than 20
years, that the convicted defendant be confined in a prison,
jail-type institution, or treatment institution for a period
of three to five years , for Class A or Class B felony
convictions and for a period of three years for Class C felony
convictions, during which the offender shall not be eligible
for parole or release because of deduction from sentence for
good behavior under the Alabama Correctional Incentive Time
Act, and that the execution of the remainder of the sentence
be suspended notwithstanding any provision of the law to the
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contrary, and that the defendant be placed on probation for
the a period upon the terms as determined by the court deems
best.
This subsection shall not be construed to impose the
responsibility for offenders sentenced to a Department of
Corrections facility upon a local confinement facility not
operated by the Department of Corrections.
(b) Unless a defendant is sentenced to probation, drug
court, or a pretrial diversion program, when a defendant is
convicted of an offense that constitutes a Class C or D felony
offense and receives a sentence of not more than 15 years, the
judge presiding over the case shall order that the convicted
defendant be confined in a prison, jail-type institution,
treatment institution, or community corrections program for a
Class C felony offense or in a consenting community
corrections program for a Class D felony offense, except as
provided in subsection (e), for a period not exceeding two
years in cases where the imposed sentence is not more than 15
years, and that the execution of the remainder of the sentence
be suspended notwithstanding any provision of the law to the
contrary and that the defendant be placed on probation for a
period not exceeding three years and upon such terms as the
court deems best. In all cases when it is shown that a
defendant has been previously convicted of any three or more
felonies or has been previously convicted of any two or more
felonies that are Class A or Class B felonies, and after such
convictions has committed a Class D felony, upon conviction,
he or she must be punished for a Class C felony. This
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subsection shall not be construed to impose the responsibility
for offenders sentenced to a Department of Corrections
facility upon a local confinement facility not operated by the
Department of Corrections.
(c) Nothing in this section shall be construed as
superseding the sentencing requirements set forth and adopted
by the Legislature as prescribed by the Alabama Sentencing
Commission's Sentencing Standards.
(d) In counties or jurisdictions where no community
corrections program exists or resources from a community
investment are not complete, a county or jurisdiction may
enter into a compact or contract with another county or other
counties to create a multi-jurisdiction community corrections
facility that meets the needs and resources of each county or
jurisdiction or enter into a compact or contract with a county
or jurisdiction that has a community corrections program to
provide services, as provided in and pursuant to Article 9 of
this chapter.
(e) If no community corrections program exists within a
county or jurisdiction and no alternative program options are
available under subsection (e) of Section 15-18-172, a
defendant convicted of an offense that constitutes a Class D
felony may be sentenced to high-intensity probation under the
supervision of the Board of Pardons and Paroles in lieu of
community corrections.
(f)(b) Probation may not be granted for a sex offense
involving a child as defined in Section 15-20A-4 , which that
constitutes a Class A or B felony. Otherwise, probation may be
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granted whether the offense is punishable by fine or
imprisonment or both. If an offense is punishable by both fine
and imprisonment, the court may impose a fine and place the
defendant on probation as to imprisonment. Probation may be
limited to one or more counts or indictments, but, in the
absence of express limitation, shall extend to the entire
sentence and judgment.
(g)(c) Regardless of whether the defendant has begun
serving the minimum period of confinement ordered under the
provisions of subsections subsection (a) or (b), if the imposed
sentence is not more than 20 years , the court shall retain
jurisdiction and authority throughout that period to suspend
that portion of the minimum sentence that remains and place
the defendant on probation, notwithstanding any provision of
the law to the contrary , and the court may revoke or modify
any condition of probation or may change the period of
probation.
(h)(d) While incarcerated or on probation and among the
conditions thereof, the defendant may be required to do any of
the following:
(1) To pay a fine in one or several sums ;.
(2) To make restitution or reparation to aggrieved
parties for actual damages or loss caused by the offense for
which conviction was had ; and.
(3) To provide for the support of any persons for whose
support he or she is legally responsible.
(i)(e) Except as otherwise provided pursuant to Section
15-18-64, the defendant's liability for any fine or other
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punishment imposed as to which probation is granted shall be
fully discharged by the fulfillment of the terms and
conditions of probation.
(j)(f) During any term of probation, the defendant
shall report to the probation authorities at sucha time and
place as directed by the judge imposing sentence.
(k)(g) No defendant serving a minimum period of
confinement ordered under subsection (a) or (b) shall be
entitled to parole or to deductions from his or her sentence
under the Alabama Correctional Incentive Time Act, during the
minimum period of confinement so ordered; provided, however,
that this subsection shall not be construed to prohibit
application of the Alabama Correctional Incentive Time Act to
any period of confinement which may be required after the
defendant has served suchthe minimum period.
(l)(h) When a defendant is convicted of a misdemeanor
or convicted of a municipal ordinance, the judge presiding
over the case may impose a sentence in accordance with Section
13A-5-7. The court may order a portion of the sentence to be
suspended and the defendant be placed on probation for such a
period not exceeding two years and upon such terms as the
court deems best .
(i) Nothing in this section shall be construed to
impose the responsibility for offenders sentenced to a
Department of Corrections facility upon a local confinement
facility not operated by the Department of Corrections. "
"§15-22-54
(a) The period of probation or suspension of execution
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of sentence shall be determined by the court and may not be
waived by the defendant. The period of probation or suspension
may be continued, extended, or terminated as determined by the
court. Except as provided in Section 32-5A-191, relating to
ignition interlock requirements, the maximum probation period
of a defendant guilty of a misdemeanor may not exceed two
years, nor shall the maximum probation period of a defendant
guilty of a felony exceed five years, except as provided in
Section 13A-8-2.1. When the conditions of probation or
suspension of sentence are fulfilled, the court, by an order
duly entered on its minutes, shall discharge the defendant.
(b) The court granting probation, upon the
recommendation of the officer supervising the probationer, may
terminate all authority and supervision over the probationer
prior to the declared date of completion of probation upon
showing a continued satisfactory compliance with the
conditions of probation over a sufficient portion of the
period of the probation. At least every two years, and after
providing notice to the district attorney, the court shall
review the probationer's suitability for discharge from
probation supervision if the probationer has satisfied all
financial obligations owed to the court, including
restitution, and has not had his or her supervision revoked.
(c) At any time during the period of probation or
suspension of execution of sentence, the court may issue a
warrant and have the defendant arrested for violating any of
the conditions of probation or suspension of sentence, and the
court shall hold a violation hearing. No probationer shall be
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held in jail awaiting the violation hearing for longer than 20
business days, unless new criminal charges are pending. If the
hearing is not held within the specified time, the sheriff
shall release the probation violator unless there are other
pending criminal charges. A judge may issue a bond to a
probationer for release from custody.
(d) Except as provided in Chapter 15 of Title 12, any
probation officer, police officer, or other officer with power
of arrest, when requested by the probation officer, may arrest
a probationer without a warrant. When an arrest is made
without a warrant, the arresting officer shall have a written
statement by the probation officer setting forth that the
probationer has, in his or her judgment, violated the
conditions of probation, and the statement shall be sufficient
warrant for the detention of the probationer in the county
jail or other appropriate place of detention until the
probationer is brought before the court. The probation officer
shall report the arrest and detention to the court and submit
in writing a report showing in what manner the probationer has
violated probation.
(e) After conducting a violation hearing and finding
sufficient evidence to support a probation violation, the
court may take any of the following actions:
(1)a. If the underlying offense was a Class D felony
and his or her probation is revoked, the incarceration portion
of any split sentence imposed due to revocation shall be
limited to two years or one-third of the original suspended
prison sentence, whichever is less.
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b.(1)a. If the underlying offense was a violent
offense as defined in Section 12-25-32 and classified as a
Class A felony, a sex offense pursuant to Section 15-20A-5, or
aggravated theft by deception pursuant to Section 13A-8-2.1,
the court shall revoke probation and require the probationer
to serve the balance of the term for which he or she was
originally sentenced, or any portion thereof, in a state
prison facility, calculated from the date of his or her
rearrest as a delinquent probationer.
c.b. If the probation violation was for being arrested
or convicted of a new offense ,or absconding, or failing to
successfully complete a court supervised, evidence-based
treatment program, as defined in Section 12-25-32, a court
ordered faith-based program, or any other court ordered
rehabilitative program, the court may revoke probation and
require the probationer to serve the balance of the term for
which he or she was originally sentenced, or any portion
thereof, in a state prison facility, calculated from the date
of his or her rearrest as a delinquent probationer.
d.c. For all other probationers, the court may impose
a period of confinement of no more than 45 consecutive days to
be served in a residential transition center established
pursuant to Section 15-22-30.1 or a consenting county jail
designated for this purpose as provided in Section 14-1-23.
The probationer shall be held in the county jail of the county
in which the violation occurred while awaiting the revocation
hearing. The Department of Corrections shall reimburse the
state mileage rate to the county, as determined by the Alabama
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Comptroller's Office, for any probationer charged with, or
sanctioned or revoked for, a probation violation and who is
transferred to or from a Department of Corrections facility or
to or from a consenting county jail by the county.
(2) Upon completion of the confinement period, the
remaining probation period or suspension of sentence shall
automatically continue upon the defendant's release from
confinement. The court may not revoke probation unless the
defendant has previously received a total of three periods of
confinement pursuant to this subsection. For purposes of
revocation, the court may take judicial notice of the three
total periods of confinement under this subsection. A
defendant shall only receive three total periods of
confinement pursuant to this subsection. The maximum 45 day
45-day term of confinement ordered pursuant to this subsection
for a felony shall be reduced by any time served in custody
prior to the imposition of the period of confinement and shall
be credited to the suspended sentence. If the time remaining
on the imposed sentence is 45 days or less, the term of
confinement may not exceed the remainder of the defendant's
sentence.
(3) The total time spent in confinement under this
subsection may not exceed the term of the defendant's original
sentence.
(4) Confinement shall be immediate. The court shall
ensure that the circuit clerk receives the order revoking
probation within five business days. The circuit clerk shall
ensure that the Department of Corrections, a county jail, a
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residential transition center, or a consenting county jail
receives necessary transcripts for imposing a period of
confinement within five business days of its receipt of the
court's order.
(5) If a probation violator is presented to a county
jail, excluding a consenting county jail designated for this
purpose, as provided in Section 14-1-23, for any period of
confinement with a serious health condition, if the
confinement of the probation violator would create a security
risk to the county jail, or if the county jail is near, at, or
over capacity, the sheriff may refuse to admit the probation
violator. If, while in custody of the county jail, the
probation violator develops a serious health condition, if the
confinement of the probation violator creates a security risk
to the county jail, or if the county jail reaches near, at, or
over capacity, the sheriff may release the probation violator
upon notification to the probation officer and to the court
who has jurisdiction over the probation violator. A sheriff
and employees in the county jail shall be immune from
liability for exercising discretion pursuant to Section
36-1-12 in refusing to admit a probation violator into the
jail or releasing a probation violator from jail pursuant to
this subdivision.
(f) In lieu of subsections (c) through (e), when a
probationer violates his or her probation terms and conditions
imposed by the court, his or her probation officer, after an
administrative review and approval by the probation officer's
supervisor, may impose any of the following sanctions:
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(1) Mandatory behavioral treatment.
(2) Mandatory substance abuse treatment.
(3) GPS monitoring.
(4) Any other treatment as determined by the court or
supervising officer.
(5) A short period of confinement in the county jail
of the county in which the violation occurred. Periods of
confinement under this subdivision may not exceed six days per
month during any three separate months during the period of
probation. The six days per month confinement period may only
be imposed as two-day or three-day consecutive periods at any
single time. The total periods of confinement may not exceed
nine total days.
(g)(1) Prior to imposing a sanction pursuant to
subsection (f), the probationer must first be presented with a
violation report , withcontaining the alleged probation
violations and supporting evidence. The probationer shall be
advised that he or she has all of the following:
a. The right to have a hearing before the court on the
alleged violation or violations in person or by electronic
means. If a hearing is requested, no probationer shall be held
beyond 20 business days of the request. Only requesting
probationers posing a threat to public safety or a flight risk
shall be arrested while awaiting a hearing.
b. The right to present relevant witnesses and
documentary evidence.
c. The right to retain and have counsel at the hearing
and that counsel will be appointed if the probationer is
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indigent.
d. The right to confront and cross examine any adverse
witnesses.
(2) Upon the signing of a waiver of these rights by
the probationer and the supervising probation officer, with
approval of a supervisor, the probationer may be treated,
monitored, or confined for the period recommended in the
violation report and designated in the waiver. The probationer
may not request a review if he or she has signed a written
waiver of rights as provided in this subsection.
(h) The board shall adopt guidelines and procedures to
implement the requirements of this section, which shall
include the requirement of a supervisor's approval prior to a
supervising probation officer's exercise of the delegation of
authority authorized by subsection (f)."
Section 2. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, the bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama of 2022, because the bill defines a new crime or
amends the definition of an existing crime.
Section 3. This act shall become effective on July 1,
2023, following its passage and approval by the Governor, or
its otherwise becoming law.
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Senate
Read for the first time and referred
to the Senate committee on Judiciary
................11-Apr-23
Read for the second time and placed
on the calendar:
1 amendment
................27-Apr-23
Read for the third time and passed
as amended
Yeas 33
Nays 0
Abstains 0
................11-May-23
Patrick Harris,
Secretary.
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