author: PITTMAN, Judge.

text:
    David L. ROSE v. Ruby F. ROSE.
    2081182.
    Court of Civil Appeals of Alabama.
    April 1, 2011.

      John D. McCord of McCord & Martin, Gadsden, for appellant.
    William J. Miller of Turner & Miller, LLC, Anniston, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

The opinion of November 19, 2010, is withdrawn, and the following is substituted therefor.

David L. Rose (“the former husband”) appeals from a judgment of the Calhoun Circuit Court holding him in contempt for stopping payment of a share of his military-retirement benefits (referred to herein as “the former husband’s benefits” or “his benefits”) to Ruby F. Rose (“the former wife”), which the former husband was ordered to pay pursuant to the parties’ divorce judgment. The trial court premised its decision on its conclusion that the former wife’s award of a share of the former husband’s benefits constituted an unmodifiable division of marital property. We affirm in part, reverse in part, and remand this case with instructions.

The parties were divorced in 1993. In October 2008, the former wife petitioned the trial court for a calculation of arrear-age, alleging that the former husband had stopped payment of her award of a share of his benefits, and asked the trial court to hold the former husband in contempt. The former husband responded, denying the former wife’s claims, and filed a counterclaim for a modification or termination of the former wife’s award of a share of his benefits. The former wife responded in opposition.

After hearing arguments and reviewing briefs submitted by each party at the trial judge’s request, the trial court concluded that the former wife’s award of a share of the former husband’s benefits was an unmodifiable division of marital property, and it held the former husband in contempt for having stopped payment of the former wife’s share of his benefits. The former husband filed a postjudgment motion and a motion to stay the execution of the trial court’s order, which motions were both denied; he thereafter timely appealed to this court.

The former husband raises one issue on appeal: whether the former wife’s award of a share of his benefits constitutes an unmodifiable division of marital property or whether, in the alternative, the former wife’s award constitutes an award of periodic alimony. Because the issue raised on appeal is a legal issue, we review the trial court’s decision de novo without affording any presumption of correctness to the trial court’s decision. Boudreau v. Slaton, 9 So.3d 495, 498 (Ala.Civ.App.2008).

The facts of this case are not disputed. When the parties divorced in 1993, the divorce judgment identified, and provided for the division of, three “assets,” including the former husband’s benefits; the division of those “assets” was outlined in an agreement of the parties, which was incorporated into the judgment and referred to therein as a “property settlement.” The judgment provided that each party would receive a 50% share of the former husband’s benefits, that the former wife would be entitled to one-half of any cost-of-living increases to his benefit payments, and that the former wife’s entitlement to his benefits would terminate if she were to remarry or die. The record reveals that, once the former wife began receiving payments of the former husband’s benefits, she listed those payments as income on her tax filings.

In October 2008, the former husband contacted the Defense Finance and Accounting Service (“DFAS”), the agency responsible for issuing his benefits, and instructed DFAS to stop issuing payments to the former wife. The DFAS complied, which prompted the former wife to seek an arrearage of the unissued payments and a finding that the former husband was in contempt. In response, the former husband argued that the former wife’s award, which he claimed was an award of periodic alimony, should be modified based on a change in circumstances or be terminated under Ala.Code 1975, § 30-2-55, because, he said, the former wife was cohabiting with a member of the opposite sex.

The record indicates that the parties submitted briefs to argue their positions as to the proper classification of the former wife’s award of the former husband’s benefits. Additionally, the record reveals that the parties adduced evidence at trial for the trial court to weigh in determining whether to modify or terminate that award as urged by the former husband, in the event that the trial court classified that award as periodic alimony. The parties stipulated that the case did not involve the issue whether the former wife had remarried under common law, which, if proven, would have invoked the provision of the divorce judgment stating that payment of the former wife’s share of the benefits should cease upon remarriage. However, the former wife stipulated at trial that she had been cohabiting with a member of the opposite sex for the five years prior to the trial.

On appeal, the former husband asserts that the trial court erred in concluding that the former wife’s award of a share of his benefits is an unmodifiable division of marital property; he contends that the former wife’s award is a modifiable award of periodic alimony because, he says, the former wife’s receipt of those benefits under the divorce judgment is not permanent.

The former wife argues that her award of the former husband’s benefits is an unmodifiable division of marital property, which is a form of alimony in gross. She relies heavily on Ex parte Vaughn, 634 So.2d 533 (Ala.1993), and argues that, because Alabama decisions have previously stated that retirement benefits may be divided as property pursuant to a property settlement or as alimony in gross, her award must be classified as a property settlement; she erroneously asserts that Vaughn stands for the proposition that because retirement benefits may be divided as marital property in a unmodifiable property settlement, those benefits necessarily cannot be used as a source of periodic alimony.

The former wife’s argument oversimplifies the issue. Although retirement benefits may be divided as property, such benefits are equally available as a source of income from which to pay periodic alimony. Singleton v. Harp, 689 So.2d 880, 882 (Ala.Civ.App.1996); see also Daniel v. Daniel, 841 So.2d 1246, 1251 (Ala.Civ.App. 2002), and Strong v. Strong, 709 So.2d 1259, 1261 (Ala.Civ.App.1998).

Because there is no requirement that retirement benefits, in the event of a divorce, be treated only as a source of alimony in gross or as marital property subject to equitable division, the issue with which we are faced is whether, as a legal matter, the former husband’s benefits are to be viewed as a source of periodic alimony or as marital property equitably divided among the parties (whether alimony in gross or property subject to equitable division). Both parties concede that the divorce judgment refers to the former husband’s benefits as one of the three “assets” divided pursuant to an agreement of the parties; they further concede that that agreement was incorporated into the divorce judgment and is labeled therein as a “property settlement.” Nonetheless, it is well settled that “the substance of the award takes precedence over the form or label.” Kenchel v. Kenchel, 440 So.2d 567, 569 (Ala.Civ.App.1983); see also Kelley v. State Dep’t of Revenue, 796 So.2d 1114, 1117 (Ala.Civ.App.2000) (labels are not controlling on the question of the true nature of the obligation). Therefore, we must consider the nature of the former wife’s award to determine its classification.

It is well settled that alimony in gross “ ‘must satisfy two requirements[:] (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ ” Daniel, 841 So.2d at 1250 (quoting Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986)); see also Kelley, 796 So.2d at 1117. “It must also be payable out of the present estate of the paying spouse as that estate exists at the time of the divorce.” Daniel, 841 So.2d at 1250. Such an award is intended as “ ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ ” Daniel, 841 So.2d at 1250 (quoting Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974)).

On the other hand, periodic alimony need not be payable out of the estate of the paying spouse as it exists at the time of the divorce. Bray v. Bray, 979 So.2d 798, 801 (Ala.Civ.App.2007). A periodic-alimony award “ ‘ “is an allowance for the future support of the [recipient spouse]” ’ ” and is subject to modification or termination under § 30-2-55. Bray, 979 So.2d at 800 (quoting Daniel, 841 So.2d at 1250, quoting in turn Hager, 293 Ala. at 55, 299 So.2d at 750). Periodic alimony is also distinguishable from alimony in gross because it is treated as taxable income to the party receiving the award. Adkins v. Adkins, 61 So.3d 1071, 1077 (Ala.Civ.App.2010).

The source of periodic-alimony payments must be the current income of the payor spouse. Smith v. Smith, 866 So.2d 588, 591 (Ala.Civ.App.2003) (holding that a retirement account from which a payor spouse was not already drawing benefits could not be a source of periodic-alimony payments). However, “a trial court may consider retirement accounts as a source from which a party may be required to pay alimony if the trial court has evidence from which it can determine that those retirement accounts are being used as a source of current income to the party.” Stamm v. Stamm, 922 So.2d 920, 923 (Ala.Civ.App.2004). Evidence that a person has begun drawing retirement-benefits from his or her account has been held sufficient to establish that such benefits constitute a source of current income. See Yohey v. Yohey, 890 So.2d 160, 168 (Ala. Civ.App.2004); see also Stamm, 922 So.2d at 924.

In Yohey, we held that a trial court had acted properly in requiring a payor spouse to treat his retirement account as a source from which to pay periodic alimony even though he had testified that the draws from that account had been made only for emergency purposes. Yohey, 890 So.2d at 168. We reached that result because the trial court could have discredited his testimony and concluded that he had used those drawn benefits as current income to pay for general living expenses. Similarly, in Stamm, a payor spouse testified that he had been drawing benefits from his retirement account, but he did not indicate the purpose for which he had drawn the benefits. We concluded that the trial court could have properly inferred that he had drawn benefits to pay for general living expenses. Stamm, 922 So.2d at 924.

Our review of the record here leads us to the conclusion that the former husband’s benefits are a source of income for payment of a periodic-alimony award. It is undisputed that payments are currently being issued from the former husband’s retirement account; the former wife had previously been issued payments from that account before the payments were discontinued at the direction of the former husband. The record also shows that the former wife has listed her share of the former husband’s benefits as income in her tax filings — a characterization that would not be valid if the former husband’s benefits had been divided as marital property.

Additionally, the former wife’s award of a share of the former husband’s benefits cannot be deemed to constitute an unmodifiable division of marital property, or alimony in gross, because both the time at which the former wife’s award will completely vest and the total amount the former wife will receive are indefinite. See Kelley, 796 So.2d at 1117. As a result, that award is judicially modifiable pursuant to § 30-2-55 because it was incorporated into the divorce judgment. See Ex Parte Murphy, 886 So.2d 90, 94 (Ala.2003) (if parties to a divorce proceeding have entered into an agreement in anticipation thereof, and request incorporation of all or part of the agreement into the judgment, the agreement, if incorporated, loses its contractual nature insofar as the right to modify is concerned). Therefore, we reverse the trial court’s judgment as to that issue.

The former husband further contends that if indeed the former wife’s award of a share of his benefits is determined to be an award of periodic alimony, which we have determined to be the case, then the trial court erred by not terminating the former wife’s award pursuant to Ala.Code 1975, § 30-2-55. We agree.

Alabama Code 1975, § 30-2-55, is clear:

“Any [judgment] of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the [divorce judgment] and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

(Emphasis added.) This case is distinguishable from the more common case where cohabitation is to be determined based upon a factual inquiry that is dependent upon the sifting of conflicting evidence and upon inferences properly drawn from particular items of evidence. Here, the former wife’s counsel stipulated, and the former wife herself admitted, that she had been cohabiting with a member of the opposite sex, which obviates the need for a factual inquiry into the issue of cohabitation; that issue is, in effect, no longer in dispute. See Ex parte Ward, 782 So.2d 1285, 1288 (Ala.2000) (holding that “[a] trial court cannot ignore undisputed evidence,” and reversing a trial court’s judgment determining that no cohabitation had existed where the recipient spouse, although not going so far as to stipulate to cohabiting, had given undisputed testimony that she had lived with, and had had sexual relations with, her paramour for 12 years).

Because we have determined that the former wife’s award of the former husband’s benefits is an award of periodic alimony, we must remand this case to the trial court to enforce “the mandate of [Ala. Code 1975,] § 30-2-55,” in light of the former wife’s admission, and her counsel’s stipulation on her behalf, that she has been cohabiting with a member of the opposite sex, under which circumstance “the trial court is required to terminate the periodic alimony.” Russell v. Russell, 586 So.2d 12, 13 (Ala.Civ.App.1991) (“Upon ... proof that the [recipient spouse] has remarried or is living openly or cohabiting with a member of the opposite sex, the trial court has the duty ... to terminate such alimony.”). On remand, the trial court should apply § 30-2-55 to the undisputed facts of this case. See Ward, 782 So.2d at 1288 (although a payor spouse is not entitled to a refund for alimony paid after the recipient spouse began cohabiting with a member of the opposite sex, alimony ceases to accrue or mature past the date on which cohabitation began).

We note, however, that although the former husband is correct in his assertion that the trial court is required to terminate payment of his benefits as of the time cohabitation begins, that judicial duty does not render erroneous a finding of contempt for failure to pay alimony benefits that are due under a judgment after the time that cohabitation has commenced where no modification proceedings have been undertaken. Even though the former husband has correctly contended that the former wife’s award of a share of his benefits was statutorily subject to modification or termination, the trial court could have nevertheless determined, as it did, that the former husband’s conduct in contacting the DFAS and terminating the payments unilaterally was not the appropriate means of effectuating § 30-2-55. See Scott v. Scott, 38 So.3d 79, 86-87 (Ala.Civ.App.2009) (discussing alternatives to unilaterally terminating periodic-alimony payments that should be utilized when a payor spouse believes he or she should no longer be obligated to make such payments). We further note that determinations of contempt are “ ‘committed to the sound discretion of the trial-court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.’ ” Stamm, 922 So.2d at 924 (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)). For that reason, we affirm the judgment under review as to the contempt finding.

APPLICATION GRANTED; OPINION OF NOVEMBER 19, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN, and MOORE, JJ., concur.

THOMAS, J., concurs in the result, without writing.

      . Under Alabama caselaw, an award of alimony in gross is considered to be "a form of property settlement.” Daniel, 841 So.2d at 1250 (citing Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974)).

      . Although it is undisputed that the parties’ settlement agreement was incorporated into the divorce judgment, we nevertheless would have held that the former wife’s award is a periodic-alimony award that is judicially modifiable pursuant to § 30-2-55 because her award is contingent on whether she remarries. We reject the former wife’s argument that this case falls in line with Stockbridge v. Reeves, 640 So.2d 947 (Ala.Civ.App.1994), and Singleton v. Harp, 689 So.2d 880 (Ala.Civ. App.1996), cases in which this court affirmed trial court determinations that military-retirement benefits had been divided pursuant to a property settlement. Those cases are significantly distinguishable from this case because the award of a portion of the military-retirement benefits in each of those cases were not contingent on whether the recipient spouse remarried.

      . Because the former wife stipulated that she had been cohabiting with a member of the opposite sex for the five years preceding trial, the record reveals undisputed evidence that the former wife was cohabiting with a member of the opposite sex. Thus, any factual inquiry into the array of factors that a trial court may typically weigh in determining whether cohabitation exists would be useless because of the undisputed evidence establishing cohabitation; any determination on the record that the former wife had not cohabited would be plainly wrong. See Ward, 782 So.2d at 1288 (holding that a trial court’s determination that cohabitation did not exist, in direct contradiction of the recipient spouse’s admissions, was error).


source: Caselaw Access Project

author: PER CURIAM. JOINER, Judge, WINDOM, Judge,

license: Public Domain

text:
    Ex parte Rodney Wayne PATTERSON. (In re State of Alabama v. Rodney Wayne Patterson).
    CR-10-0334.
    Court of Criminal Appeals of Alabama.
    March 18, 2011.

      Chris Malcom, Moulton, for petitioner.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Rodney Wayne Patterson, filed this petition for a writ of habeas corpus requesting that we reinstate his original bail, which had been revoked. In October 2009, Patterson was arrested for attempted murder; his bail was set at $75,000. In January 2010, Patterson was indicted for attempted murder and his bail, which he had paid, remained the same. In May 2010, the State moved that Patterson’s bail be revoked because, it argued, Patterson had been charged with another offense while he was free on bail for the attempted murder charge, and a condition of his release had been that he not engage in any criminal activity. On May 13, 2010, Judge Pride Tompkins revoked Patterson’s bail. On November 12, 2010, Patterson was found “not guilty” of reckless endangerment — the charge that formed the basis for the revocation of his pretrial bail. Patterson then moved to have his original bail reinstated. After a hearing on November 15, 2010, Judge Tompkins denied Patterson’s motion. This original petition for a writ of habeas corpus followed.

Patterson asserts that he is entitled to remain free on pretrial bail because, he argues, he has been acquitted of the charge that formed the basis for the revocation of his pretrial bail.

“The purposes of bail are to secure the accused’s attendance, and avoid the imprisonment of persons still entitled to a presumption of innocence, among others.
“Since it is not the purpose of the criminal law to confine a person accused of crime before conviction, bail is allowed in recognition of the presumption of innocence until guilt is proved, and is a necessary corollary to the constitutional concept that persons may be imprisoned only after conviction. Bail is intended to enable an accused to remain out of jail until the next proceeding in the case, or until there has been a final disposition of the accusation, and to prepare a defense. Bail also reheves the state of the burden of detaining possibly innocent persons pending trial.”

8 C.J.S. Bail § 6 (2010). “Bail operates to balance the ‘presumption of innocence of the accused and the compelling interest of the State that the accused appear to answer the accusation against him.’” Ex parte Henson, 131 S.W.3d 645, 647 (Tex. App.2004).

Under Alabama law, an accused has a constitutional right to pretrial bail in all noncapital cases.

“Article I, § 16, Alabama Constitution of 1901, provides: ‘That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.’ This Court has interpreted § 16 as providing an absolute right to bail in all noncapital cases. State v. Blake, 642 So.2d 959, 968 (Ala.1994). See also, Ala. Code 1975, § 15-13-2; Brown v. State, 615 So.2d 1306 (Ala.Crim.App.1993); and Ex parte Jackson, 687 So.2d 222 (Ala.Crim.App.1996).”

Ex parte Colbert, 805 So.2d 687, 688 (Ala. 2001). See § 15-13-3, Ala.Code 1975, which states: “In all cases other than those specified in subsection (a) of Section 15-13-3 [capital cases] a defendant is, before conviction, entitled to bail as a matter of right.”

We have recognized that this constitutional right is subject to forfeiture by the defendant. In Ex parte Fleming, 814 So.2d 302 (Ala.Crim.App.2001), we stated:

“[A] defendant may forfeit his constitutional right to pretrial bail by his conduct while out on bail. See Shabazz v. State, 440 So.2d 1200 (Ala.Crim.App. 1983). In Shabazz, we stated:
“ ‘The Constitution of the State of Alabama provides “That all persons shall, before conviction, be bailable by sufficient sureties,, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.” Ala. Const, art. I, § 16. Additionally, § 15-13-2, Code of Alabama 1975, states that “In all cases other than those specified in subsection (a) of section 15-13-3, a defendant is, before conviction, entitled to bail as a matter of right.” Subsection (a) of § 15-13-3 deals with capital cases. The courts of this State have consistently construed the statute and constitutional provision as ensuring to an accused an absolute right to bail. Brakefield v. State, 269 Ala. 433, 113 So.2d 669 (1959); Holman v. Williams, 256 Ala. 157, 53 So.2d 751 (1951); Sprinkle v. State, 368 So.2d 554 (Ala.Crim.App.1978), writ quashed, 368 So.2d 565 (Ala.1979).
“ ‘... Although the court found the right to bail on a noncapital case to be absolute, even when there had previously been a forfeiture of bail on the same charge, it also said that an accused could forfeit his constitutional right to bail if it appeared that he had done so through affirmative evidence. This court opines that engaging in felonious criminal activity while out on bail is an example of such affirmative evidence. Mere failure to appear in court would not suffice.’
440 So.2d at 1201-02 (emphasis added). Cf: Alabama courts have recognized that the following constitutional protections may be waived: (right to counsel at trial) (Clemons v. State, 720 So.2d 985 (Ala.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999)); (right to counsel and to conduct own defense) (Ex parte Arthur, 711 So.2d 1097 (Ala.1997)); (right against self-incrimination) (Ex parte Graddick, 501 So.2d 444 (Ala.1986)); (right to trial by jury) (Arrington v. State, 773 So.2d 500 (Ala.Crim.App.2000)); (right to speedy trial) (Williams v. State, 641 So.2d 1305 (Ala.Crim.App.1994)).
“The philosophy expressed in Shabazz has been incorporated into Rule 7.3(a), Ala. R.Crim. P., and Rule 7.5(b), Ala. R.Crim. P., promulgated by the Alabama Supreme Court. Rule 7.3(a) lists the mandatory conditions of release, once bail has been set. Those mandatory conditions require that a defendant
“ ‘(1) Appear to answer and to submit to the orders and process of the court having jurisdiction of the case;
“‘(2) Refrain from committing any criminal offense;
“‘(3) Not depart from the state without leave of court; and “‘(4) Promptly notify the court of any change of address.’ ”

814 So.2d at 303-04.

Rule 7.5(b), Ala. R.Crim. P., provides, in pertinent part:

“If, after a hearing on the matters set forth in the motion, the court finds that the defendant released has not complied with or has violated the conditions of release, or that material misrepresentations or omissions of fact were made in securing the defendant’s release, the court may modify the conditions or revoke the release. If a ground alleged for revocation of the release is that the defendant released has violated the condition under Rule 7.3(a)(2) by committing a criminal offense, or that there was a misrepresentation or omission concerning other charges pending against the defendant released, the court may modify the conditions of release or revoke the release, if the court finds that there is probable cause (or if there has already been a finding of probable cause) to believe that the defendant released committed the other offense or offenses charged.”

(Emphasis added.) The Committee Comments to Rule 7.5, Ala. R.Crim. P., note that “[t]he rule is not intended to operate as an absolute denial of release where there is probable cause to believe the defendant committed an offense while on release.”

Rule 7.5(b), Ala. R.Crim. P., is patterned after § 18 U.S.C.A. § 3148. This section provides that a court may revoke pretrial bail if there is “probable cause to believe that the person has committed a Federal, State, or local crime while on release.... ” The federal statute further states:

“If there is probable cause to believe that, while on release, the person committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community.”

18 U.S.C.A. § 3148(b) (emphasis added). See also 8 C.J.S. Bail § 143 (2010). “Once the presumption arises, the ball is in the defendant’s court ... and it is incumbent on the defendant to come forward with some evidence to rebut the presumption.” United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989).

Other state courts have addressed the continued validity of a bail revocation when there has been an acquittal on the charge that was the basis for the revocation. Massachusetts law provides:

“If a person is on release pending the adjudication of a prior charge, and the court ... finds probable cause to believe that the person has committed a crime during said period of release, the court shall then determine ... whether the release of said person will seriously endanger any person or the community.... If the court determines that the release of said person will seriously endanger any person or the community ... the court may revoke bail on the prior charge.... Said order shall state in uniting the reasons therefor and shall be reviewed by the court upon the acquittal of the person, or the dismissal of, any of the cases involved.”

Mass. Gen. Laws ch. 276 § 58 (2006) (emphasis added). “The only language in the statute pertaining to any type of review of a revocation order is limited, requiring review (‘shall be reviewed’) ‘upon the acquittal of the person, or the dismissal of, any of the cases involved.’ ” Commonwealth v. Pagan, 445 Mass. 315, 321, 837 N.E.2d 252, 259 (2005).

The Vermont Supreme Court in State v. Mecier, 136 Vt. 336, 339, 388 A.2d 435, 438 (1978), has stated:

“In the case before us ... if the earlier extortion case is dismissed or the defendant is acquitted of the charge, the defendant is then entitled to an immediate review of his bail situation with respect to the present charge. The court then involved would have the usual duty to make every effort to resolve the bail application in favor of some sort of release, no more restrictive than necessary. ...”

Here, Patterson was acquitted of the charge that formed the basis for the revocation of his pretrial bail — the charge was not dismissed or nolle prossed. Given Alabama’s clear preference for pretrial bail in all noncapital cases, we hold that Patterson is entitled to have his original $75,000 bail reinstated. See Shabazz v. State, 440 So.2d 1200 (Ala.Crim.App.1983). Accordingly, this petition for a writ of habeas corpus is hereby granted.

PETITION GRANTED; WRIT ISSUED.

WELCH, P.J., and KELLUM and BURKE, JJ., concur. JOINER, J., concurs specially, with opinion. WINDOM, J., dissents, with opinion.

JOINER, Judge,

concurring specially.

I concur in the main opinion. In its response to Rodney Wayne Patterson’s petition, the State asserts that Patterson has continued to harass the victim of the alleged murder attempt. I write specially to note that I do not read our decision as precluding the circuit court from adding, as a condition to the reinstatement of the bail, the requirement that Patterson avoid contact with the victim. Moreover, if such a condition already exists, I do not read our decision as invalidating that condition or as precluding the State from seeking to have Patterson’s bail revoked for violating that condition.

WINDOM, Judge,

dissenting.

I respectfully disagree with the majority’s determination that Rodney Wayne Patterson is entitled to the reinstatement of his original bail. As discussed in detail below, I do not believe that Patterson’s acquittal of the charge that formed the basis of his bail revocation establishes a lack of probable cause that he committed the new offense and, thus, forfeited his right to bail. See Rule 7.5(b), Ala. R.Crim. P. Therefore, I must respectfully dissent.

“The Constitution of the State of Alabama provides ‘[t]hat all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.’ Ala. Const. art. I, § 16.” Shabazz v. State, 440 So.2d 1200, 1201 (Ala.Crim.App.1983). See also § 15-13-2, Ala.Code 1975, (“In all cases other than those specified in subsection (a) of Section 15-13-3 [capital cases], a defendant is, before conviction, entitled to bail as a matter of right.”). “Although ... the right to bail on a non-capital case [is] absolute, ... an accused [may] forfeit his constitutional right to bail [by] engaging in ... criminal activity....” Shabazz, 440 So.2d at 1202. See also Ex parte Fleming, 814 So.2d 302, 304 (Ala.Crim.App.2001) (holding that an accused may forfeit his right to bail by committing a new offense). Rule 7.5, Ala. R.Crim. P., establishes the standard to be applied in a bail-revocation preceding in which an individual is accused of forfeiting the right to bail by committing a new offense. Specifically, Rule 7.5(b), Ala. R.Crim. P., states, in pertinent part, that “[i]f a ground alleged for revocation of the release is that the defendant released has violated the condition under Rule 7.3(a)(2) by committing a criminal offense, ... the court may ... revoke the release after a hearing, if the court finds that there is probable cause (or if there has already been a finding of probable cause) to believe that the defendant released committed the other offense or offenses charged.” (Emphasis added.) Consequently, a court may revoke an individual’s bail if the court finds that there is probable cause to believe that the individual committed a new offense or if the court finds that the individual was arrested for a new offense based on probable cause. Ex parte Bumpers, 854 So.2d 627, 630 (Ala. Crim.App.2003).

A criminal conviction, on the other hand, requires “proof beyond a reasonable doubt” that the defendant committed the criminal offense. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Probable cause is a less “strict standard [than that] of proof beyond a reasonable doubt.” State v. Montgomery, 968 So.2d 543, 550 (Ala.Crim.App.2006) (citations and quotations omitted). Unlike proof beyond a reasonable doubt, probable cause is established if “a reasonable [person] would believe the crime occurred and that the defendant committed it.” Id. (citations and quotations omitted). “Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Id. (citations and quotations omitted).

Because the showing necessary to revoke bail (probable cause) is less stringent than the showing necessary to convict an individual of a criminal offense (beyond a reasonable doubt), I believe that the majority incorrectly holds that Patterson’s acquittal on the new offense establishes that there was no probable cause to revoke his bail for that new offense. Courts in this State have consistently recognized that the outcome of one proceeding will not dictate the outcome of another proceeding involving the same matter when the two proceedings are governed by different standards of proof. For that reason, “[a] judgment in a criminal case cannot be res judicata in a civil action because the parties to the actions are different, the rules of evidence are different, and a different standard of proof is involved.” City of Gadsden v. Head, 429 So.2d 1005, 1007 (Ala.1983). See also Morrison v. State, 267 Ala. 1, 2, 100 So.2d 744, 745 (1957) (citing the differences in the burden of proof as a reason that “ ‘ “it is generally held that a judgment or opinion in a civil action, or the record of proceedings therein, is not admissible in a subsequent criminal prosecution [employing the beyond-a-reasonable-doubt standard] involving the same matter” ’ ”) (quoting Helms v. State, 35 Ala.App. 187, 188, 45 So.2d 170, 171 (1950), quoting in turn 22 C.J.S. Criminal Law § 50). As this Court stated in Loper v. State, “[i]t is hornbook law in Alabama that a judgment in a civil case is not conclusive as res judicata in a criminal case, or vice versa, there being ... different degrees of proof ... required.” 469 So.2d 707, 710-11 (Ala.Crim.App.1985) (Emphasis added.) In the same vein, this Court has recognized that “[b]y virtue of the different burdens of proof placed on the state in probation revocation hearings, it is quite possible that probation may be revoked based on a set of facts where a criminal conviction based on the same set of facts [and the same evidence] cannot stand.” Carlton v. State, 507 So.2d 998, 1002 (Ala.Crim.App.1986).

Further, as the majority notes, ‘“[a] verdict of acquittal is not an affirmative finding of innocence or that all of the accused’s testimony is true, but it is merely a declaration that the jury [or, in a bench trial, the judge] was not satisfied beyond a reasonable doubt about the defendant’s guilt.’ ” 70 So.3d at 439, n. 3 (quoting 23A C.J.S. Criminal Law § 1903 (2010)). Likewise, a verdict of acquittal based on the State’s failure to present sufficient evidence to establish the accused’s guilt beyond a reasonable doubt does not establish that there was insufficient evidence to support a finding of probable cause to believe that the accused committed the offense. See Stone v. State, 501 So.2d 562, 565 (Ala.Crim.App.1986) (recognizing that “ ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause’ ”), overruled on other grounds, Ex parte Boyd, 542 So.2d 1276 (Ala.1989) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).

Here, the circuit court revoked Patterson’s bail on the ground that Patterson had been arrested based on probable cause to believe that he had committed a new offense. The standard established in Rule 7.5(b), Ala. R.Crim. P., to revoke an accused’s bail is probable cause, not proof beyond a reasonable doubt. The majority, however, grants Patterson’s petition for a writ of habeas corpus on the ground that “Patterson was acquitted of the charge that formed the basis for the revocation of his pretrial bail_” 70 So.3d at 439. In doing so, the majority erroneously elevates the probable-cause standard established in Rule 7.5(b), Ala. R.Crim. P., to the reasonable-doubt standard necessary for a criminal conviction. In re Winship, 397 U.S. at 361.

Because the circuit court revoked Patterson’s bail on the ground that Patterson had been arrested based on probable cause in compliance with the standard established in Rule 7.5(b), Ala. R.Crim. P., I believe that this Court should deny his petition for a writ of habeas corpus. Accordingly, I respectfully dissent from the majority’s determination that “Patterson[’s acquittal] of the charge that formed the basis for the revocation of his pretrial bail” establishes that he is entitled to reinstatement of the original bail.

      . The basis for this misdemeanor charge was that Patterson allegedly engaged in reckless conduct by "driving behind [the victim] at a high rate of speed as if to run her off the road.” After a bench trial in the district court, Judge Angela Terry found Patterson "not guilty.”

      . The federal statute provides that the "rebut-table presumption” arises only when the accused has been charged with a new felony.

      . We realize that "[a] verdict of acquittal is not an affirmative finding of innocence or that all of the accused's testimony is true, but it is merely a declaration that the jury was not satisfied beyond a reasonable doubt about the defendant’s guilt.” 23A C.J.S. Criminal Law § 1903 (2010). However, we do not believe that the law applicable to probation-revocation proceedings applies in this case. We have stated: "By virtue of the different burdens of proof placed on the State in probation revocation hearings, it is quite possible that probation may be revoked based on a set of facts where a criminal conviction based on the same set of facts cannot stand. '[A] proceeding to revoke probation is not a criminal prosecution....'” Carlton v. State, 507 So.2d 998, 1002 (Ala.Crim.App.1986). A probation-revocation proceeding is a postconviction proceeding, i.e., it occurs after conviction and sentence. Here, Patterson stands convicted of no offense, and he, under the law, is presumed innocent of the attempted-murder charge.

      . Patterson does not challenge the constitutionality of the probable-cause standard established in Rule 7.5(b), Ala. R.Crim. P.; therefore, that issue is not properly before this Court.

      . I note that the circuit court failed to hold a hearing within 72 hours of Patterson’s arrest as required by Rule 7.5, Ala. R.Crim. P. I, however, believe that this error does not mandate that this Court grant Patterson’s petition because Patterson was eventually granted a hearing. See Ex parte Bartlett, 848 So.2d 1024, 1026 (Ala.Crim.App.2002) (holding that any error in the failure to hold a bail-revocation hearing within 72 hours was cured by a subsequent hearing in which the accused was provided "the opportunity to present evidence to support his release from custody”).