Ferguson & Ferguson
Attorneys at Law
1. What is Domestic Violence in the 3rd Degree?
DOMESTIC VIOLENCE – THIRD DEGREE, 13A-6-132, CODE OF ALABAMA
(a) A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22; the crime of menacing pursuant to Section 13A-6-23; the crime of reckless endangerment pursuant to Section 13A-6-24; the crime of criminal coercion pursuant to Section 13A-6-25; the crime of harassment pursuant to subsection (a) of Section 13A-11-8; the crime of criminal surveillance pursuant to Section 13A-11-32; the crime of harassing communications pursuant to subsection (b) of Section 13A-11-8; the crime of criminal trespass in the third degree pursuant to Section 13A-7-4; the crime of criminal mischief in the second or third degree pursuant to Sections 13A-7-22 and 13A-7-23; or the crime of arson in the third degree pursuant to Section 13A-7-43; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship, as defined in Section 13A-6-139.1, with the defendant. Domestic violence in the third degree is a Class A misdemeanor.
2. What is Possession of a Forged Instrument 2nd Degree?
(a) A person commits the crime of criminal possession of a forged instrument in the second degree if he possesses or utters any forged instrument of a kind specified in Section 13A-9-3 with knowledge that it is forged and with intent to defraud.
(b) Criminal possession of a forged instrument in the second degree is a Class C felony.
3. What is Theft of Property 4th Degree?
(a) The theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another constitutes theft of property in the fourth degree. (b) Theft of property in the fourth degree is a Class A misdemeanor.
4. What is Possession of a Controlled Substance?
(a) A person commits the crime of unlawful possession of controlled substance if:
(1) Except as otherwise authorized, he or she possesses a controlled substance enumerated in Schedules I through V.
(2) He or she obtains by fraud, deceit, misrepresentation, or subterfuge or by the alteration of a prescription or written order or by the concealment of a material fact or by the use of a false name or giving a false address, a controlled substance enumerated in Schedules I through V or a precursor chemical enumerated in Section 20-2-181 .
(b) Unlawful possession of a controlled substance is a Class D felony.
5. What is a Violation of Probation?
(a) The period of probation or suspension of execution of sentence shall be determined by the court and shall not be waived by the defendant, and the period of probation or suspension may be continued, extended, or terminated. However, except as provided in Section 32-5A-191 relating to ignition interlock requirements, in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant.
(b) The court granting probation may, upon the recommendation of the officer supervising the probationer, 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 cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence, upon which the court shall hold a violation hearing. No probationer shall be held in jail awaiting such 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 shall have authority to 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. In case of an arrest 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 forthwith 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 revoke probation to impose a sentence of imprisonment, and credit shall be given for all time spent in custody prior to revocation. If the probationer was convicted of 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. However, in all cases, excluding violent offenses defined pursuant to Section 12-25-32 and classified as a Class A felony, and sex offenses, defined pursuant to Section 15-20A-5 , the court may only revoke probation as provided below:
(1) Unless the underlying offense is a violent offense as defined in Section 12-25-32 and classified as a Class A felony, when a defendant under supervision for a felony conviction has violated a condition of probation, other than arrest or conviction of a new offense or absconding, the court may impose a period of confinement of no more than 45 consecutive days to be served in the custody population of the Department of Corrections. By April 29, 2016, the Department of Corrections shall develop and implement a streamlined process to transport and receive the probationer into its custody population and shall identify and, if possible, implement policies aimed at reducing the administrative delays, if any, in transferring to the Department of Corrections the physical custody of the probationer and those whose probation has been revoked. Such process shall be developed in cooperation with the Alabama Sheriffs’ Association and the Association of County Commissions of Alabama. Such process shall include the most cost-effective method to process sanctioned probation violators for the maximum 45-day confinement period and shall provide that the Department of Corrections shall reimburse the state mileage rate, as determined by the Alabama Comptroller’s Office, to the county for any state inmate sanctioned as a probation violator and transferred to or from a Department of Corrections facility by the county. 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 shall not revoke probation unless the defendant has previously received a total of three periods of confinement under 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 under this subsection. The maximum 45-day term of confinement ordered under this subsection for a felony shall not be reduced by credit for time already served in the case. Any such credit shall instead be applied to the suspended sentence. In the event the time remaining on the imposed sentence is 45 days or less, the term of confinement shall be for the remainder of the defendant’s sentence.
(2) The total time spent in confinement under this subsection shall not exceed the term of the defendant’s original sentence.
(3) Confinement shall be immediate. The court shall be responsible for ensuring that the circuit clerk receives the order revoking probation within five business days. The circuit clerk shall insure that the Department of Corrections receives necessary transcripts for imposing a period of confinement within five business days of its receipt of the court’s order.
(4) If a probation violator, as described in subdivision (1), is presented to the county jail for confinement and the probation violator has a serious medical condition, the confinement of the probation violator creates a security risk to the jail facility, or the 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 medical condition, the confinement of the probation violator creates a security risk to the facility, or 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 his or her staff 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 under the circumstances described above.
(f) In lieu of the provisions 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 may, after administrative review and approval by the officer’s supervisor, require the probationer to submit to behavioral treatment, substance abuse treatment, GPS monitoring, such other treatment as determined by the board or supervising officer, or a period of confinement in a consenting jail facility as specified in subdivision (10) of Section 15-22-52 .
(g) Prior to imposing a sanction provided under subsection (f) and pursuant to subdivision (10) of Section 15-22-52 , the probationer must first be presented with a violation report, with the alleged probation violations and supporting evidence noted. The probationer may file a motion with the court to conduct a probation violation hearing within 10 days. The probationer shall be given notice of the right to such hearing and advised of the right (i) to a hearing before the court on the alleged violation in person, with the right to present relevant witnesses and documentary evidence; (ii) to retain and have counsel at the hearing and that counsel will be appointed if the probationer is indigent; and (iii) to confront and cross examine any adverse witnesses. 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. However, the probationer shall have no right of 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).