author: PER CURIAM. COBB, Judge

text:
    Charles E. CONNERS v. STATE of Alabama.
    CR-00-1074.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Jan. 25, 2002.

      Charles E. Conners, pro se.
    Andrew W. Redd, general counsel, and William F. Addison, asst. gen. counsel, Department of Corrections, for appellee.
   PER CURIAM.

On October 5, 2000, Charles E. Conners filed a petition for a writ of habeas corpus, in which he alleged that he was denied due process when he was removed from work release and reclassified as a “heinous offender” based on a change in the criteria of the Department of Corrections for determining which inmates are eligible for work release. After receiving a response from the State, the circuit court summarily denied Conners’s petition on January 2, 2001.

I.

Citing Ex parte Berry, 794 So.2d 307 (Ala.2000), Conners contends that the circuit court erred in summarily denying his habeas corpus petition because, he says, he had a liberty interest in remaining on work release. Specifically, Conners maintains that the work-release contract he signed when he was first placed on work release created a liberty interest in remaining on work release because, he says, the contract contained the following language: “If I am removed from work release, I will receive a due process hearing.” (C. Supp. 9.) In addition, although Conners concedes that he was given a reclassification hearing, he argues that the reclassification hearing was held after he had already been removed from work release and, therefore, that the hearing did not satisfy the requirements of due process.

In Ex parte Berry, the Alabama Supreme Court held that the circuit court had erred in summarily denying Berry’s petition for a writ of habeas corpus because, it said, Berry’s petition had created a genuine issue of material fact as to whether he had a liberty interest in remaining on work release. Specifically, the Court stated:

“Similarly in this present case Berry argues that the procedures set out in the [Department of Corrections’] Classification Manual require a due-process hearing before an inmates participation in the work-release program can be terminated. Berry has provided this Court with the portion of the Department of Corrections’ Classification Manual that contains the language stating that ‘[n]o due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL, or SIR.’ Berry also alleges that it has been the practice of the Department of Corrections to remove inmates from the work-release program only after the inmate commits some infraction of an administrative rule or regulation. The language in the Classification Manual prevents the Department of Corrections from arbitrarily removing an inmate from the work-release program, and, by doing so, creates a liberty interest in an inmate’s continued participation in the work-release program. Therefore, the circuit court erred in summarily dismissing Berry’s petition for the writ of habe-as corpus. Berry’s petition creates a genuine issue of material fact as to the applicability of the regulation to his work-release status.”

794 So.2d at 309.

In this case, Conners maintains that his work-release contract, not the Department of Corrections Classification Manual, created a liberty interest in his remaining on work release. However, unlike the appellant in Ex parte Berry, Con-ners did not provide this Court with a copy of his work-release contract showing that the contract did, in fact, contain the language he alleged it did. In fact, Conners failed to attach any documentation to his petition to support his claim that he had not been afforded due process before he was removed from work release.

Section 15-21-4, Ala.Code 1975, provides:

“Application for a writ of habeas corpus must be made by petition, signed either by the party himself for whose benefit it is intended or by some other person on his behalf, must be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief, and must state, in substance, the name of the person on whose behalf the application is made, that he is imprisoned or restrained of his liberty in the county, the place of such imprisonment, if known, the name of the officer or person by whom he is so imprisoned and the cause or pretense of such imprisonment; and, if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.”

(Emphasis added.) The record reflects that Conners did not attach to his petition any documents supporting his claim that he had a liberty interest in remaining on work release or that he was removed from work release without due process; he did not allege that he had demanded a copy of any such documents and was refused; and he offered no excuse for his failure to comply with § 15-21-4. See, e.g., Young v. State, 712 So.2d 1121 (Ala.Crim.App.1998); and Williams v. State, 651 So.2d 1153 (Ala.Crim.App.1994). Although Conners filed a motion for discovery of documents some 29 days after the circuit court summarily denied his petition, this belated request for documents was not sufficient to comply with § 15-21-4. In addition, although the Alabama Supreme Court’s holding in Ex parte Berry shows that inmates may, in fact, have a liberty interest in remaining on work release, that holding does not relieve inmates of their burden under § 15-21-4 either to attach copies of the records of their removal from work release or to demand those records in a timely fashion.

Moreover, even assuming that Con-ners’s work-release contract created a liberty interest in remaining on work release and notwithstanding Conners’s failure to comply with § 15-21-4, Conners’s claim that his reclassification hearing was held after he had been removed from work release—and, therefore, that the hearing did not comport with due process—is refuted by the record. The State attached to its motion to dismiss Conners’s petition copies of the following three documents: (1) the advance written notice to Conners of the reclassification hearing; (2) a memorandum of the procedure used during the hearing; and (3) the progress-review form indicating the evidence presented at the reclassification hearing and the reasons that Conners had been reclassified as a “heinous offender.” Two of these documents refute Conners’s claim that he was removed from work release before his reclassification hearing, and the third document is, at best, ambiguous as to the timing of the hearing. Furthermore, these documents reflect that Conners’s reclassification hearing complied with the due-process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Based on the record before us, it appears that Conners received all the due process to which he was entitled.

Because Conners failed to comply with the statutory pleading requirements of § 15-21-4; because, even assuming that Conners had a liberty interest in remaining on work release, the record refutes Conners’s claim that his reclassification hearing was held after he had been removed from work release; and because the record reflects that Conners was afforded due process during the reclassification hearing, the circuit court’s summary denial of Conners’s petition for a writ of habeas corpus was proper, even in light of the Alabama Supreme Court’s holding in Ex parte Berry.

II.

Conners contends that the circuit court erred in denying his motion for discovery, filed on January 31, 2001, 29 days after the circuit court had denied his petition. However, the record reflects that, contrary to Conners’s contention, the circuit court never ruled on Conners’s discovery motion. In addition, Conners never objected to the circuit court’s failure to rule on the motion. Because Conners suffered no adverse ruling from the circuit court, this issue is not properly before this Court for review. See, e.g., Allen v. State, 825 So.2d 264 (Ala.Crim.App.2001); and Woods v. State, 790 So.2d 1014 (Ala.Crim.App.2000).

III.

Finally, Conners contends that the circuit court erred in ordering the Department of Corrections to withhold 25% of the deposits to Ms prison account until the court costs for filing his habeas corpus petition were paid because, he says, he was granted indigency status and an indigent defendant is not required to pay filing fees. In addition, Conners contends that the circuit court erred in ordering him to pay $187 in court costs when, he says, the statutory maximum filing fee is $140. Conners presented both of these claims in his motion to vacate the circuit court’s order denying his habeas corpus petition; therefore, they are properly before this Court for review.

Section 12-19-70(b), Ala.Code 1975, provides, in pertinent part, that “[t]he docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship.” See also Fincher v. State, 724 So.2d 87, 90 (Ala.Crim.App.1998) (“Section 12-19-70(b), Ala.Code 1975, provides that, as was done in the present case, the docket fee of an indigent petitioner may be waived initially and then taxed as costs at the conclusion of the case.”); and Cofield v. State, 682 So.2d 493, 494 (Ala.Crim.App.1996) (“[T]he docket fee of an indigent petitioner may be waived initially and then may be taxed as costs at the conclusion of the case.”). The circuit court properly ordered Conners to pay the court costs of his habeas corpus petition.

In addition, we find no error in the circuit court’s imposition of $187 in court costs. Although § 12-19-71, Ala.Code 1975, provides a filing fee in civil cases of $145 for all cases filed after October 1, 2000, this Court has recognized that there are separate county costs that may increase that filing fee beyond the statutory maximum of $145. See, e.g., Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001), citing Act No. 79-751, Ala. Acts 1979 (providing for an additional law library fund fee of $2.00 in all cases in circuit and district courts in counties that have established law libraries under the act), Act No. 93-564, Ala. Acts 1993 (providing for an additional juvenile court-services fund fee of $3.00 in all cases, except small claims, in circuit and district courts in Elmore County), and Act No. 99-530, Ala. Acts 1999 (providing for an additional county treasury fee of $5.00 in all cases, except small claims, in circuit and district courts in Elmore County), as examples of such county costs. The record in this ease does not show that the $42 discrepancy between the $145 statutory filing fee and the $187 filing fee assessed against Conners was the result of separate county costs, nor does it show that the discrepancy was not the result of such separate costs.

“ ‘This court cannot predicate error on matters not shown by the record, nor can we presume error from a silent record. Smelcher v. State, 520 So.2d 229 (Ala.Crim.App.1987); Abbott v. State, 494 So.2d 789 (Ala.Crim.App.1986). “Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.” Jolly v. State, 405 So.2d 76 (Ala.Crim.App.1981); Watson v. State, 398 So.2d 320 (Ala.Crim.App.1980), writ denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981).’ ”

Stegall v. State, 628 So.2d 1006, 1009 (Ala.Crim.App.1993), quoting Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992). We will not presume that a circuit court’s imposition of court costs is error based on a silent record. Rather, we believe that the burden is on the petitioner to show that any discrepancy between the statutory filing fee of $145 and the filing fee imposed in his or her case is not the result of separate county costs. Conners has failed to meet that burden. Therefore, we find no error in the circuit court’s imposition of $187 in court costs.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

COBB, J., dissents, with opinion.

COBB, Judge

(dissenting).

I respectfully dissent from the majority’s decision to affirm the judgment in this cause. First, I disagree with the majority’s attempt in Part I of its opinion to differentiate Conners’s circumstances from the facts in Ex parte Berry, 794 So.2d 307 (Ala.2000). Second, I do not agree with Part III, because I do not believe that the record is silent as to any error with regard to the imposition of the filing fee.

I.

A. Conners’s Proof

The majority concludes that the circuit court’s summary denial of Conners’s petition was correct, in part because Conners violated § 15-21-4, Ala.Code 1975, in that he did not “attach to his petition any documents supporting his claim that he had a liberty interest in remaining on work release or that he was removed from work release without due process; he did not allege that he had demanded a copy of any such documents and was refused; and he offered no excuse for the failure to comply with § 15-21-4.” 837 So.2d 321. However, on January 31, 2001, Conners filed both a motion for discovery of documents, in which he requested a copy of his “Inmate Work Release Agreement,” and a motion to vacate, in which he alleged that his Work Release Agreement contained the following language: “If I am removed from work release, I will receive a due process hearing.” (C.R. 32 and S.R. 9.) As the majority points out, these two motions were filed 29 days after the circuit court had summarily denied Conners’s petition. Nonetheless, the requisite language was used by Conners and unrefuted by the State. The majority states that, “although the Alabama Supreme Court’s holding in Ex parte Berry shows that inmates may, in fact, have a liberty interest in remaining on work release, that holding does not relieve inmates of their burden under § 15-21-4 either to attach copies of the records of their removal from work release or to demand those records in a timely fashion.” 837 So.2d 322. However, Justice Brown noted in her dissent in Berry that the excerpt from the Classification Manual the majority relied on to find that Berry had a liberty interest in remaining on work release was not contained in the record on appeal; the excerpt was contained only in an appendix to the appellant’s brief on appeal. If the petitioner in Berry could present his evidence for the first time on appeal, then certainly Con-ners could present his evidence for the first time to the circuit court in a motion to vacate. Therefore, I believe that the summary disposition of Conners’s petition was not appropriate.

B. The Sufficiency of the Hearing

The majority states that, although Con-ners alleges that his hearing occurred after he had already been removed from work release, the exhibits attached to the State’s motion to dismiss Conners’s petition indicate otherwise. I disagree. The administrative changes regarding “heinous offenders” apparently involve three stages: first, the prisoner is reclassified as a “heinous offender,” based on the facts underlying his conviction; second, the “heinous offender” is removed from work release; and, finally, the custody status of the “heinous offender” is reviewed. The exhibits attached to the State’s motion to dismiss indicate that the hearing Conners received did not concern his removal from work-release status; rather, the hearing concerned Conners’s custody reclassification.

Exhibit 2, entitled “Department of Corrections — Progress Review Form,” and dated June 18, 1996, concerned the proposed custody transfer of Conners. The form states, “Reclass[ification] hearing due to Commissioner’s order to remove Con-ners from work release due to the details of the murders he committed.” This sentence indicates that the hearing concerned a proposed custody change, that Conners had already been reclassified as a “heinous offender,” and that Conners had already been removed from work release by virtue of the Commissioner’s order.

Exhibit 3, entitled “24 Hour Advance Notification of Pending Reclassification,” and dated June 18, 1996, states, “This is not a disciplinary hearing. A reclassification team will review this matter and recommend changes, if needed, in your current placement and/or custody.” The reason stated for the reclassification hearing was that, “[biased upon a re-evaluation of the criteria for work release, it has been determined by the Commissioner that certain inmates whose crimes are heinous should neither be placed nor otherwise remain in work release or assigned to a community based facility.” This sentence, although ambiguous, also indicates that the hearing would address either Conners’s work-release status or, more likely, his placement in a particular facility.

Finally, and most telling, Exhibit 4, entitled “Reclassification Hearing on Conners, Charles B/M 106122,” which is undated, states:

“On Wednesday, June 19, 1996, at approximately 5:14 p.m., a reclassification board convened to consider an upgrade in custody and change in institutional placement for CONNERS, CHARLES B/M 106122....
“The board came to the following decision after reviewing all testimony. [The Chairperson’s] recommendation is return to Level TV institution as stipulated in [the Commissioner’s] criteria. Recommend Elmore-Min. unless CRB stipulates inmate must be housed at a Level IV facility.”

(R. 17) (emphasis added). Again, this exhibit indicates that the hearing, and the reclassification board’s ultimate decision, concerned Conners’s housing, not his participation in the work-release program. As was the case in Berry, the hearing before the reclassification board was to determine if a change in classification criteria necessitated a change in his placement or custody. The hearing was not conducted to determine whether Conners should be removed from the work-release program.

Therefore, I cannot agree with the majority’s assertion that “Conners’s claim that his reclassification hearing was held after he had been removed from work release — and, therefore, that the hearing did not comport with due process — is refuted by the record.”

II.

Based on the premise that this Court will not predicate error on a silent record, the majority finds no error in the circuit court’s imposition of a $187 filing fee when § 12-19-71 provides for a filing fee of $145. I disagree with the application of that otherwise correct proposition of law in this case. The record is not silent. Con-ners alleged, and the record indicates, that the filing fee assessed against Conners exceeded the statutorily allowed fee by $42.00, without explanation. Conners has proved his claim. The $42 discrepancy might be due to the imposition of separate county costs, see, e.g., Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001) (“Various costs for the county law library, the county treasury, and the juvenile court services board were assessed as costs in this ease.”). However, the record here does not indicate the reason for the increase in the statutorily provided filing fee.

For the reasons stated above, I believe this cause should be remanded for further proceedings to explore the merits of Con-ners’s petition, consistent with Ex parte Berry, and for explanation of the filing fees.

      . Because the record shows that Conners was afforded due process before he was removed from work release, we need not address whether a reclassification hearing in full compliance with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), held after removal from work release, would satisfy due process.

        . We note that the statutory maximum filing fee is actually $145. See § 12-19-71, Ala. Code 1975.


source: Caselaw Access Project

author: MOORE, Chief Justice.

license: Public Domain

text:
    Ex parte Charles E. CONNERS. (Re Charles E. Conners v. State of Alabama).
    1010939.
    Supreme Court of Alabama.
    May 24, 2002.
    Charles E. Conners, pro se.
    Submitted on petitioner’s brief only.
   MOORE, Chief Justice.

The petition for the writ of certiorari is denied. In a per curiam opinion holding that Ex parte Berry, 794 So.2d 307 (Ala.2000), does not control Charles E. Conners’s case, the Court of Criminal Appeals affirmed the trial court’s judgment. In denying the petition for the writ of certio-rari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

HOUSTON, LYONS, JOHNSTONE, and WOODALL, JJ., concur.


author: COBB, Judge. BASCHAB, Judge

text:
    Harry John COUGHLIN, Jr., and Betty Lovett Coughlin v. STATE of Alabama.
    CR-00-2114.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied March 15, 2002.
    Certiorari Denied May 17, 2002 Alabama Supreme Court 1011266.

      Harry John Coughlin, Jr., pro se.
    Betty Lovett Coughlin, pro se.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, FU., and SHAW and WISE, JJ., concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge

(dissenting).

I must respectfully dissent. The record in this case does not indicate that the trial court ever advised the appellants about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and did not advise them that they had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Therefore, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995), cert. denied, 680 So.2d 947 (Ala.1996).


author: WISE, Judge. COBB, Judge,

text:
    O.T. v. STATE of Alabama.
    CR-01-0070.
    Court of Criminal Appeals of Alabama.
    March 22, 2002.
    Kelly Dean Vickers, Montgomery, for appellant.

      O.T. pro se.
    Bill Pryor, atty. gen., and Andy Scott Poole, asst; atty. gen., for appellee.
   WISE, Judge.

The appellant, O.T., appeals from the Montgomery Circuit Court’s revocation of his probation. The record reveals that the appellant was charged with two counts of first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975, and two counts of first-degree theft of property, a violation of § 13A-8-3, Ala.Code 1975. The trial court granted the appellant’s request for youthful-offender status pursuant to § 15-19-1, Ala.Code 1975. Thereafter, on December 14, 1999, the appellant pleaded guilty to, and was adjudicated guilty of, one count of first-degree burglary, one count of first-degree theft, and one count of first-degree receiving stolen property. On January 21, 2000, the circuit court sentenced the appellant to three years’ imprisonment, on each conviction, the sentences to run concurrently. The circuit court then suspended the sentences, and placed the appellant, on three years of Level II supervised probation. The court also ordered the appellant to pay court costs, attorney fees, a $150 assessment to the Crime Victims Compensation Fund, and a total of $5,299.01 in restitution.

The appellant’s probation officer filed a delinquency report, alleging that the appellant had failed to report and had failed to pay court-ordered moneys and supervision fees. On September 14, 2000, the court entered an order declaring the appellant delinquent. After the appellant was located and arrested, the court scheduled a probation-revocation hearing for April 13, 2001. Following the revocation hearing, the court set aside its previous delinquency finding and placed the appellant on Level I supervised probation for six months. Despite being given a second chance, the appellant failed to comply with the conditions of probation. On May 4, 2001, the circuit court again declared the appellant delinquent, and it ordered that he be arrested and brought before the court to show cause why his probation should not be revoked.

On September 28, 2001, the circuit court conducted a probation-revocation hearing. During the hearing, the appellant’s probation officer testified that the appellant had failed to report regularly and that he had failed to pay court costs and supervision fees, as required by the terms and conditions of his probation. The probation officer further testified that after the appellant was given a second .chance, he again failed to report as required. Additionally, the officer testified, the appellant failed to obtain the type of telephone line necessary to enable the State to monitor him electronically. At the conclusion of the hearing, the circuit court revoked the appellant’s probation. The revocation order was entered on the case action summary and stated: “Probation revoked for failure to report.” (C. 3.) This appeal followed.

The appellant’s appointed counsel filed a brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel stated that his review of the record revealed that no error had occurred in the circuit court’s revocation of the appellant’s probation.

This Court issued an order on November 27, 2001, informing the appellant that his counsel had filed an Anders brief and ordering him to file with the Court any issues he believed to be worthy of appellate review. Thereafter, the appellant, acting pro se, filed a letter brief, requesting that his probation be reinstated because, he said, he had not been given sufficient time to obtain the type of telephone service necessary for electronic monitoring, a requirement under Level I supervised probation. The appellant also argued that the evidence presented by the State did not justify revoking his probation. He argued that because his violations involved nothing more than the failure to comply with the technical requirements of his probation, rather than the commission of a new criminal offense, he should be given another chance to comply with the terms of probation and to meet the conditions imposed.

In response to the appellant’s pro se brief, appointed counsel filed a supplemental brief, in which he responded to the appellant’s claims. Counsel stated the appellant’s brief did nothing more than reiterate his plea that the circuit court reconsider its decision revoking his probation. Counsel appeared to concede that this claim had not been preserved for appellate review. However, counsel stated:

“After further consideration, counsel for the appellant finds the court’s order revoking the probation is inadequate in that it fails to state the evidence relied upon to warrant the revocation, and upon remand, it is hoped the trial court will reconsider the revocation and place the defendant back on probation.”

On February 4, 2002, the State filed a brief in response to appointed counsel’s supplemental brief. The State agreed that this case should be remanded for the circuit court to enter a written order that complied with the requirements first set out in Armstrong v. State, 294 Ala. 100, 312 So.2d 620, 623 (Ala.1975).

“The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ Puckett, 680 So.2d at 983.”

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

This Court has also held that a defendant can allege for the first time on appeal that the trial court erred in failing to advise him of his right to request an attorney to represent him during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000).

After examining the record before us, we conclude that the appellant’s request that we reconsider the revocation of his probation is, in effect, nothing more than a claim that the evidence presented by the State was insufficient to justify the circuit court’s decision to revoke his probation' — -a claim that is being raised for the first time on appeal. Because he did not present this claim below, and because it is not one of the three exceptions that this Court has recognized as claims that can be raised for the first time on appeal, this claim has not been preserved for appellate review.

We agree, however, that this case is due to be remanded for the circuit court to enter an order setting out the evidence relied upon and the reasons for revoking the appellant’s probation, in accordance with the requirements of Rule 27.6(f), Ala. R.CrimP., and Armstrong v. State.

Before probation can be revoked, the circuit court must provide a written order stating the evidence and the reasons relied upon to revoke probation in order to comply with the due-process requirements of Gagnon v. Scarpelli 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Wyatt v. State, 608 So.2d 762 (Ala.1992); Armstrong v. State, supra; Cottle v. State, 826 So.2d 212 (Ala.Crim.App.2001); Stallworth v. State, 690 So.2d 551 (Ala.Crim.App.1997). “These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.” T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Crim.App.1994).

In this case, the circuit court’s written order stated merely: “Probation revoked for failure to report.” This was insufficient to comply with the requirements of Rule 27.6(f), Ala.R.Crim.P., and Armstrong v. State. Indeed, even the State acknowledges that because the trial court’s order did not set out the evidence relied upon in revoking the appellant’s probation, remand is necessary.

Based on the foregoing, we remand this cause to the circuit court for that court to enter a new order reflecting the evidence relied upon, as well as the reason or reasons for revoking the appellant’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, J., concur. COBB, J., concurs specially, with opinion. SHAW, J., concurs in the result.

COBB, Judge,

concurring specially.

This case once again clearly demonstrates the need for the Alabama Supreme Court to relieve the trial courts of the time-consuming burden of setting out, in a separate written order, the evidence and the reasons relied upon when a trial court revokes probation. Under the facts of this case, remand is not in the interest of judicial economy.

The probation officer testified that O.T. did not report to him as required by the terms of his probation. Specifically, the probation officer testified:

“[T]his will be the third go-round. I mean, he didn’t report something as simple as once a month. Then we put him on once a week report, and then subsequently to that, he still didn’t come in. It’s not as though he was oblivious to the fact that he needed to come in and report, he just wouldn’t. And enough time was given to him to come in and make everything all right.
“And I told him, I said, ‘Listen, I don’t even want to bring this matter up to the judge. You just come in, and we’ll make this thing right.’ He wouldn’t come in.”

(R. 4.)

O.T. did not deny that he had failed to report to his probation officer — in fact, his comments were tantamount to admissions — but instead, he offered excuses for failing to do so.

The trial court stated:

“You have had every opportunity to comply with probation.... I don’t know anything else we can do to get you to comply with probation.... [Bjased on your behavior on probation, I hereby revoke your probation.”

(R. 5.)

The written order revoking probation states: “Prob[ation] revoked for failure to report.” (C.R.3.) The trial court’s reason for revoking probation- — failure to report — • and the evidence relied upon establishing this reason — oral testimony from the probation officer — is clearly supported by the transcript from the revocation hearing. The probation officer testified that O.T. failed to report to him as required by the terms of his probation. O.T. did not deny this accusation. This provided a sufficient reason to revoke probation.

Moreover, it is abundantly clear from the record that O.T.’s due process rights would not be compromised in the absence of a written order. It is clear that O.T. understood that his probation was being revoked because the trial court believed the uncontradicted testimony from the probation officer that O.T. had failed to report as required by the terms and conditions of O.T.’s probation. Thus, the evidence and the reason for revoking probation were clear to O.T.

I respectfully invite the Alabama Supreme Court, as I did when writing for this court in Trice v. State, 707 So.2d 294, 297 (Ala.Crim.App.1997), “to reconsider its holdings in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), requiring a separate written order setting forth the evidence relied upon and the reason for the revocation in cases not involving confessions, and instead follow Alabama Rule 27.6(f), Ala.R.Crim.P., and those jurisdictions that permit a statement on the record from the proceedings to provide the evidence relied on and the reasons for revoking probation.”

      .The appellant was charged in two indictments. The indictment in case no. CC-97-2225, charged the appellant with first-degree burglary and first-degree theft, as did the indictment in case no. CC-98-339. Pursuant to a negotiated plea agreement, the State agreed in case no. CC-98-339 to nolle pros the burglary charge and to amend the theft charge to first-degree receiving stolen property in exchange for the appellant’s guilty plea to one count each of first-degree burglary, first-degree theft, and first-degree receiving stolen property.

      . The court ordered the appellant to pay $788 in restitution in case no. CC-97-2226, and $4,511.01 in case no. CC-98-339.

      . Level I supervised probation appears to be a more stringent level of probation, requiring the probationer to wear an electronic-monitoring device.

      . Counsel noted that although the appellant had filed a motion to reconsider, the circuit court had not ruled on that motion. No motion to reconsider is included in the record, and the case action summary does not indicate that such a motion was filed. All that appears in the record is the appellant’s plea at the conclusion of the revocation hearing that the circuit court reconsider its decision.

       Note from the reporter of decisions: On May 24, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

      . “Before probation can be revoked, the circuit court must provide a written order stating the evidence and the reasons relied upon to revoke probation in order to comply with the due-process requirements of Gagnon v. Scarpelli, 411 U.S. 778 [93 S.Ct. 1756, 36 L.Ed.2d 656] (1973). Wyatt v. State, 608 So.2d 762 (Ala.1992); Armstrong v. State, [294 Ala. 100, 312 So.2d 620 (1975) ]. ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.' ”

        Peoples v. State, 807 So.2d 608, 610 (Ala.Crim.App.2001)(quoting T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Crim.App.1994)).


author: PER CURIAM.

text:
    Paul Beasley JOHNSON, Petitioner, v. Michael W. MOORE, etc., Respondent.
    No. SC01-2182.
    Supreme Court of Florida.
    Sept. 26, 2002.
    Rehearing Denied Jan. 29, 2003.

      Michael P. Reiter, Capital Collateral Regional Counsel — Northern Region, and Heidi E. Brewer, Assistant CCRC, Tallahassee, FL, for Petitioner.
    Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

Paul Beasley Johnson petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

Johnson was convicted of three counts of first-degree murder, two counts of armed robbery, kidnapping, arson, and two counts of attempted first-degree murder. The trial court imposed three death sentences. The facts of this case are more fully set forth in our opinion in Johnson’s direct appeal, where this Court affirmed Johnson’s convictions and sentences. See Johnson v. State, 608 So.2d 4, 6 (Fla.1992) (,Johnson I). Johnson filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied relief, and we affirmed that denial. See Johnson v. State, 769 So.2d 990, 992 (Fla.2000) (Johnson II). Johnson has now filed with this Court the instant petition for a writ of habeas corpus which raises ten claims. We deny Johnson’s petition for a writ of habeas corpus.

Johnson first asserts that his appellate counsel was ineffective for failing to ensure that the record on appeal was com-píete. When evaluating an ineffective assistance of appellate counsel claim raised in a writ of habeas corpus, this Court must determine,

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency-falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainright, 496 So.2d 798, 800 (Fla.1986). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Johnson’s first claim is without merit. Johnson’s appellate counsel filed a supplemental motion with this Court on direct appeal requesting reconstruction of the record. This Court denied the motion as being without merit. See Johnson I, 608 So.2d at 13 (“There is no merit in Johnson’s argument that we should have granted his motion to reconstruct the record.”). Thus, Johnson has not shown that his appellate counsel was deficient for failing to raise this issue. See Rutherford v. Moore, 774 So.2d 637, 645 (Fla.2000) (“[I)f an issue was actually raised on direct appeal, the Court will not consider a claim that appellate counsel was ineffective for failing to raise additional arguments in support of the claim on appeal.”). Johnson also alleges that appellate counsel failed to include missing record items (some of which are now unavailable) including the court reporter’s tapes, the written slips that were used to communicate peremptory challenges to the trial court, a newspaper article relating to Johnson’s case, and transcripts of unrecorded discussions occurring during several bench conferences. Johnson claims that his appellate counsel’s failure to secure those items has prejudiced his ability to appeal issues regarding voir dire and the trial court’s denial of Johnson’s motion to suppress statements made by a jailhouse informant.

Johnson argues generally that these missing items would have aided his direct appeal, but he does not point to specific errors that occurred due to the omissions of this material. In Thompson v. State, 759 So.2d 650, 660 (Fla.2000), this Court rejected a similar claim and stated:

We have previously rejected a similar claim that appellate counsel was ineffective for failing to have transcribed portions of the record, including parts of voir dire, the charge conference, and a discussion of whether the defendant would testify. See Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993). We reasoned that “[h]ad appellate counsel asserted error which went uncorrected because of the missing record, or had [the defendant] pointed to errors in this petition, this claim may have had merit.” Id. However, because the defendant “point[ed] to no specific error which occurred” during the portions of the record that remained untranscribed, we concluded that appellate counsel was not ineffective. Id.; see also Turner v. Dugger, 614 So.2d 1075, 1079-80 (Fla.1992) (finding defendant had not been prejudiced by failure of counsel to have charge conference transcribed). As with the defendant in Ferguson, Thompson has not pointed to any errors that occurred during the untranscribed portions of the proceedings.

(Alterations in original.) Similarly, Johnson has not demonstrated that the deficiencies he generally alleges undermine confidence in the correctness of his sentence. See Pope, 496 So.2d at 800. Johnson is not entitled to relief on this claim.

Johnson’s second claim asserts that appellate counsel was ineffective for failing to raise the claim that Johnson was absent for certain challenges during voir dire examination. The trial court imposed a process for challenging potential jurors, whereby counsel for each side submitted written notes to the judge indicating the challenged jurors. The judge then announced the jurors who would be dismissed. The record does reflect that Johnson was not at the bench when Johnson’s counsel delivered to the trial judge the notes listing the challenged jurors. However, the record also reflects that Johnson was in the courtroom during the time the notes were delivered, was present when the jurors were examined in open court, and was with his counsel when the decisions as to who would be challenged were made. The delivery of notes listing challenged jurors only informed the trial court of Johnson’s decisions. Johnson was not deprived of his ability to consult with his trial counsel when the peremptory challenges were being exercised, as was the defendant in Francis v. State, 413 So.2d 1175, 1177 (Fla.1982). We conclude that Johnson was not prejudiced by the procedure used, and thus we hold that Johnson has not demonstrated that he is entitled to relief on this issue.

Johnson’s third claim asserts that appellate counsel was ineffective for failing to challenge the facial validity of the instructions on the aggravating factors. This challenge involves four subclaims.

Johnson’s first subclaim is that appellate counsel was ineffective for failing to raise a facial challenge to the cold, calculated, and premeditated (CCP) instruction. Johnson raised the claim of ineffective assistance of trial counsel for failing to object to the CCP instruction in his 3.850 motion, and the circuit court summarily denied the claim as being without merit. The circuit court stated:

The trial in the instant case concluded prior to the decision in Jackson v. State, 648 So.2d 85 (Fla.1994). The trial court instructed the jury that in order for the cold, calculated and premeditated aggra-vator to apply they must find a “heightened degree of calculated premeditation or methodical intent.” (R. 3609.) The instruction attempted to provide the jury with guidance in analyzing the applicability of the aggravator. The defendant failed to demonstrate that counsel’s actions were deficient or prejudicial.

State v. Johnson, No. CF 81-0112A1, order at 5 (Fla. 10th Cir. Ct. order filed January 28, 1997). Additionally, the record shows that the CCP instruction given was broader than the standard instruction and was substantially as requested by defense counsel. This Court affirmed the postconviction court’s denial. Johnson’s direct appeal also occurred before the Jackson decision was decided. Appellate counsel cannot be considered ineffective for failing to challenge a jury instruction on the basis of decisions that had not yet been decided. Cf. Downs v. State, 740 So.2d 506, 518 (Fla.1999).

Johnson’s second subclaim addresses the heinous, atrocious, or cruel (HAC) instruction. This subclaim is procedurally barred because this Court addressed this claim in Johnson I, 608 So.2d at 13. See Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“[Hjabeas corpus petitions are not to be used for additional appeals on questions which ... were raised on appeal....”). Johnson’s third subclaim challenges the avoid arrest instruction. Johnson concedes that this issue is procedurally barred as having been found without merit by the postconviction court. See id.

Johnson’s final subclaim challenge is that the pecuniary gain instruction is facially invalid. This claim is without merit because Johnson’s trial counsel agreed to the instruction for pecuniary gain. Appellate counsel cannot be deemed ineffective for failing to raise a claim that was not preserved below or that is without merit. See Rutherford, 774 So.2d at 646.

Johnson’s fourth claim asks this Court to revisit the issue of whether the trial court erred by refusing to find the existence of mitigation. We find this claim to be procedurally barred because this claim was addressed on direct appeal. See Parker, 550 So.2d at 460 (“[H]abeas corpus petitions are not to be used for additional appeals on questions which ... were raised on appeal.... ”).

Johnson’s fifth claim is that appellate counsel was ineffective for failing to raise the issue that the jury was misled by court instructions and State comments. There was no objection to the trial court’s instructions or the State’s comments, and appellate counsel cannot be deemed ineffective for failing to raise this issue unless the alleged error constitutes fundamental error. See Rutherford, 774 So.2d at 646. Johnson, however, does not cite to any case in support of his contention that the trial court’s actions constituted error— much less fundamental error. Therefore, Johnson is not entitled to relief on this claim.

Johnson’s sixth claim is that appellate counsel was ineffective for failing to raise the issue that in the penalty phase, the burden of proof was shifted to Johnson to prove that a sentence of death was inappropriate. This claim is without merit because the instructions did not shift the burden to the defendant to prove that a death sentence was inappropriate. Cf. Teffeteller v. Dugger, 734 So.2d 1009, 1024 (Fla.1999). Appellate counsel cannot be deemed ineffective for failing to raise a meritless issue. See Lambrix v. Singletary, 641 So.2d 847, 848-49 (Fla.1994).

Johnson’s seventh claim is that appellate counsel was ineffective for failing to raise the claim that the State improperly introduced nonstatutory aggravating factors during closing argument and during the cross-examination of Johnson’s witness, Dr. Gary Ainsworth. Johnson claims that the State improperly introduced references to Johnson’s personality disorders, his inability to conform his conduct to the law, and his past drug use. Johnson’s trial counsel did not object to the State’s closing argument, and appellate counsel cannot be deemed ineffective for failing to raise un-preserved claims. See Rutherford, 774 So.2d at 646. Additionally, this Court rejected the merits of the closing argument error claim in Johnson II, 769 So.2d at 1004 (“[Wjhile there were several objectionable comments made during closing arguments, the argument as a whole was proper.”). Therefore, Johnson’s closing argument portion of this ineffective assistance of appellate counsel claim is without merit, and the closing argument did not constitute fundamental error. See id.

Johnson’s trial counsel did object to the State’s cross-examination of Dr. Ains-worth, and appellate counsel did not raise the issue on appeal. Johnson’s habeas claim, however, focuses on the closing argument and does not demonstrate how appellate counsel was “measurably outside the range of professionally acceptable performance” for failing to raise the issue that the prosecutor’s statements erroneously introduced nonstatutory aggravating circumstances to the jury. Pope, 496 So.2d at 800. Thus, Johnson’s claim is insufficiently pled, and we find no fundamental error in the State’s cross-examination.

Johnson’s eighth claim is that appellate counsel was ineffective for failing to raise the claim that the trial court erred in refusing to grant Johnson’s challenges for cause. This issue is procedurally barred and without merit because the substance of this claim was raised and rejected by this Court on both direct appeal and post-conviction appeal. See Rutherford, 774 So.2d at 645 (“[I]f an issue was actually raised on direct appeal, the Court will not consider a claim that appellate counsel was ineffective for failing to raise additional arguments in support of the claim on appeal.”).

Johnson’s ninth claim is that appellate counsel was ineffective for failing to raise the claim that Johnson’s sentence rests upon an unconstitutionally automatic aggravating circumstance based on the underlying felonies. This claim was preserved but was not raised on appeal. Therefore, Johnson’s ineffective assistance of appellate counsel claim is not procedurally barred. However, this Court has repeatedly rejected Johnson’s claim as being without merit. See Blanco v. State, 706 So.2d 7, 11 (Fla.1997) (“Eligibility for this aggravating circumstance is not automatic.... ”). Appellate counsel cannot be ineffective for failing to raise a claim that would have been rejected on appeal. See Lambrix, 641 So.2d at 848-49.

Johnson’s final claim is that appellate counsel was ineffective for failing to raise the claim that the trial court erred in denying Johnson’s motion to declare Florida’s death penalty statute unconstitutional. This claim was preserved but was not raised on appeal. Therefore, Johnson’s ineffective assistance of appellate counsel claim is not procedurally barred. However, this Court has consistently rejected as being without merit claims that are identical to Johnson’s claim. See, e.g., Waterhouse v. State, 792 So.2d 1176, 1181 n. 10 (Fla.2001). Appellate counsel cannot be found ineffective for failing to raise a mer-itless issue. See Lambrix, 641 So.2d at 848^49.

Because all of Johnson’s claims are either without merit or procedurally barred, we deny the petition for writ of habeas corpus.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, and LEWIS, JJ., and HARDING, Senior Justice, concur.

QUINCE, J., recused.

      . In this petition, Johnson alleges: (1) appellate counsel was ineffective for failing to ensure that the record on appeal was complete; (2) appellate counsel was ineffective for failing to raise the issue that Johnson was absent from critical stages of the trial; (3) appellate counsel was ineffective for failing to raise the claim that the jury weighed invalid aggravating circumstances; (4) this Court should revisit the issue that the sentencing judge erred by refusing to find the existence of mitigation; (5) appellate counsel was ineffective for failing to raise the issue that the jury was misled by court instructions and State comments; (6) appellate counsel was ineffective for failing to raise the issue that in the penalty phase, the burden of proof was shifted to Johnson to prove that death was inappropriate; (7) appellate counsel was ineffective for failing to raise the claim that the State improperly introduced nonstatutory aggravating factors; (8) appellate counsel was ineffective for failing to raise the claim that the trial court erred in refusing to grant Johnson’s challenges for cause; (9) appellate counsel was ineffective for failing to raise the claim that Johnson's sentence rests upon an unconstitutionally automatic aggravating circumstance; and (10) appellate counsel was ineffective for failing to raise the claim that the trial court erred in denying Johnson’s motion to declare Florida’s death penalty statute unconstitutional.