Act 2010-753, limiting incarceration in the penitentiary for eligible offenders revoked from probation due to technical violations and providing retroactive relief to certain inmates serving time following a technical probation violation revocation, became law April 30, 2010.
Since this Act had an immediate effective date, persons designated eligible probationers whose revocation hearings are held on or April 30, 2010, or any eligible inmate incarcerated based solely on a technical probation violation, imprisonment must be limited to no more than 90 days in the penitentiary or, if no space is available in a DOC facility, not more than 90 days in the county jail.
The provisions of §15-22-54 continue to provide that courts should not revoke probation and order confinement for probation violations “unless the court finds on the basis of the original offense and the probationer’s intervening conduct that . . . no measure short of confinement will adequately protect the community from further criminal activity by the probationer and … no measure short of confinement will avoid depreciating the seriousness of the violation.”
Eligible Offenders: Pending Probation Revocation
A nonviolent felon (to be determined by the sentencing judge) serving a probationary sentence who:
1) Has violated a condition of probation other than by the commission of a new offenses; and
2) Has complied with the conditions of probation (including remaining current on payment of court ordered monies) for a consecutive six-month period.
State Inmates Eligible for Retroactive Application
A nonviolent felon (to be determined by the sentencing judge) serving a prison sentence based on revocation of probation who:
1) Incarceration is the result of only a technical violation (any violations of the conditions of probation, other than the commission of a new criminal offense); and
2) Successfully completed the terms of probation for six consecutive months (including remaining current on payment of court ordered monies); and
3) Had no disciplinary infractions while serving the sentence in the penitentiary; and
4) Has no pending charges or convictions for a new offense.
Alternatives: Act 2010-753 expressly provides that in lieu of revoking probation for technical violators, courts may continue the existing probation and add additional conditions that the offender:
1. Participates in a community corrections program.
2. Participates in a county work release program.
3. Performs community service.
4. Undergoes intensive probation supervision.
5. Participates in a residential or out-patient drug or alcohol treatment program.
6. Participates and completes a Life Skills (LIFETech) residential program”
§ 15-22-54(d)(2)(b), as amended by Act 2010-753, and
7. Abide by any order of the Court issued pursuant §15-22-54(d)(1)d.
Retroactive Application: The Act specifically grants the sentencing court jurisdiction to resentence an eligible inmate incarcerated based on a technical violation upon submission of a petition alleging all eligibility criteria. Credit for the time incarcerated upon revocation shall be credited against the original sentence. If the petitioner is eligible for resentencing and has not served the term of the original sentence, the court may place the defendant on probation for the remaining suspended sentence and require any of the alternatives listed above as a condition of probation. The term of probation may not exceed the maximum of 5 years permitted by law. See, Rule 27 Alabama Rules of Criminal Procedure.