author: BURKE, Judge.

text:
    Patrick SIMS v. STATE of Alabama.
    CR-14-0390.
    Court of Criminal Appeals of Alabama.
    July 10, 2015.

      Patrick Sims, pro se.
    Luther Strange, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   BURKE, Judge.

Patrick Sims appeals the revocation of his probation. It appears that, in 2001, Sims was convicted of first-degree robbery and was sentenced to 20 years in prison. That sentence was split, and Sims was ordered to serve five years in prison followed by probation. While on probation, Sims was arrested for breaking and entering a motor vehicle. It further appears that a probation delinquency report was filed based on that arrest and based on Sims’s changing his residence without the consent of his probation officer; however, a copy of the delinquency report is not contained in the record.

Facts and Procedural History

A probation-revocation hearing was held on October 29, 2014. Sims represented himself at the hearing.

The only witness presented by the State at the hearing was Christopher Grear, a police officer for the Anniston Police Department. Officer Grear testified that he investigated the complaint of the breaking and entering of a motor vehicle that occurred in the parking lot of a Dollar General discount store in May 2014. Officer Grear reviewed surveillance video from the Dollar General store. On that video, Officer Grear observed a black male wearing a dark work uniform park his white Chevrolet Lumina automobile next to the victim’s vehicle, enter the Dollar General store, return to his vehicle, reach through the window of the victim’s vehicle, pull a purse out of the victim’s vehicle, and then leave in his vehicle. Officer Grear also observed that the Lumina was missing some paint. On June 17, 2014, Officer Grear happened to see the Lumina he had seen in the surveillance video. Officer Grear ran the Lumina’s license-plate number and discovered that the vehicle belonged to Sims. At that time, Officer Grear spoke with Sims, who happened to be wearing the same work uniform that Officer Grear had seen the suspect wearing in the video. Officer Grear identified Sims as the person he saw in the video taking the purse from the victim’s vehicle.

Sims called Sheronica McGuire, his probation officer, to testify at the hearing. On cross-examination, McGuire testified:

“On June 26th I spoke with Detective Wade and he told me that he was, in fact, looking or attempting to locate Mr. Sims. He stated that Mr. Sims’ stepmother told him that he—Mr. Sims no longer lived at the address he provided the probation office, which was on 20 Queens Drive, but instead he stayed in Alexandria.”

(R. 34.)

Laconya Bowers, Sims’s stepmother, testified that some officers visited her house and asked her whether Sims lived in the house. Bowers responded: “[Y]es, he lives here but he’s not here now, he’s at work.” (R. 36.)

At the conclusion of the revocation hearing, the circuit court did not make any oral findings. On November 4, 2014, the circuit court issued the following written or: der:

“Revocation hearing was held October 29, 2014. Defendant present pro se. State represented by Chief Assistant District Attorney Lynn Hammond.
“Upon consideration of the evidence presented by the State, the Court finds [Patrick Sims] to be in violation of the following probation condition(s) and the Court is reasonably satisfied from the evidence that a violation of the conditions or regulations of probation occurred:
“1. Charged with new offense— Breaking and Entering a Motor Vehicle
“2. Change of residence without the consent of the Probation Officer
“The Court hereby REVOKES [Sims’s] probation based on the finding that [Sims], while on probation, violated the above probation condition(s) and sentences the probationer to:
“Serve his remaining sentence with a total of 104 days jail credit as of November 4, 2014 (credit to be given by [the Department of Corrections] for the 2 splits previously served).”

(C. 6.)

After his probation was revoked, Sims filed a “motion for reconsideration of probation revocation.” (C. 7.) In that motion, Sims argued that the circuit court’s revocation order was inadequate, that the circuit court’s finding that he had been charged with a new offense was an insufficient basis on which to revoke his probation, that the evidence was insufficient to support the revocation of his probation, and that the circuit court failed to advise of him of his right to counsel. The circuit court denied Sims’s motion.

Discussion

I.

On appeal, Sims argues, among other things, that the grounds for revoking his probation were insufficient. According to Sims, the circuit court’s finding that he changed his residence without the consent of his probation officer was improper because it was based entirely on hearsay evidence. Further, Sims argues that the circuit court’s other basis for the revocation of his probation—that he had been “charged with [a] new offense”—was improper because merely being charged with a new offense is an insufficient ground for probation revocation.

A.

“‘Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. “ ‘[I]t is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation.’ ” Sams v. State, 48 So.3d 665, 668 (Ala.2010) (quoting Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999)). This rule arises from due-process considerations and from a concern that “‘[t]he use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating the information that forms the basis of the revocation.’ ” Id.

In the present case, the only evidence that Sims changed his residence without the consent of his probation officer was the following testimony of his probation officer:

“I spoke with Detective Wade and he told me that he was, in fact, looking or attempting to locate Mr. Sims. He stated that Mr. Sims’ stepmother told him that he—Mr. Sims no longer lived at the address he provided the probation office, which was on 20 Queens Drive, but instead he stayed in Alexandria.”

(R. 34.)

Clearly, the probation officer’s testimony regarding Detective Wade’s ouh-of-court statements about Sims changing his residence was hearsay. Because that testimony was the only evidence indicating that Sims had changed his residence, hearsay formed the sole basis for the circuit court’s finding that Sims changed his residence without the consent of his probation officer. Therefore, the revocation of Sims’s probation on that ground was not based on sufficient evidence and was improper.

B.

Next, concerning whether merely being charged with a new offense is a sufficient ground for probation revocation, this Court has stated:

“ “While it is not necessary that a probationer be convicted of the charged offense before his probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation.’ Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984).
“ ‘If merely being arrested is sufficient for revocation of probation, then revocation would lie within the discretion of police officers rather than with judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’
“Hill v. State, 350 So.2d 716, 718 (Ala.Crim.App.1977).”

Calhoun v. State, 854 So.2d 1209, 1210 (Ala.Crim.App.2002).

In the present case, there is simply no oral or written finding by the circuit court that the court was reasonably satisfied that Sims was guilty of the new offense, and merely being charged with a new offense is an insufficient ground for probation revocation. Sims pointed out this fact in his “motion for reconsideration of probation revocation,” but the circuit court summarily denied that motion and chose not to change its order or to make additional findings. Nevertheless, immediately before the probation revocation hearing began, the circuit court correctly stated: “I don’t have to have a trial on the offense itself. I just need to be reasonably satisfied that one occurred.” (R. 15.) Thus, it is unclear from the record whether the circuit court believed that the fact that Sims had been arrested for a new offense was a sufficient ground for revoking Sims’s probation. In any event, merely being arrested or charged with a new offense is not a sufficient ground for probation revocation. Therefore, because the circuit court did not state any proper ground for revoking Sims’s probation, this case must be remanded for the circuit court to set aside its revocation order.

II.

Moreover, Sims argues that he was not advised of his right to be represented by counsel under Rule 27, Ala. R.Crim. P. Rule 27.5(a)(3), Ala. R.Crim. P., provides that, at the probationer’s initial appearance after his or her arrest, the judge shall “[ajdvise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met.” Rule 27.6(b), Ala. R. Crim P., provides:

“The probationer is entitled to be present at the [probation revocation] hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a color-able claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

In the present situation, at Sims’s initial appearance, he stated that he had read his probation delinquency report, that he understood the report, and that he wanted a hearing. The circuit court then set the hearing for October 1, 2014. Nothing in the record indicates that the circuit court advised Sims of his right to counsel. However, after the circuit court set the hearing date, the following discussion occurred:

“[Sims]: All right. Can I ask a question? How do I go about subpoenas?
“The Court: All these questions—y’all haven’t caught on. These questions don’t get a lot of good answers from me, do they? Y’all caught on yet? But you can ask.
“[Sims]: I want to know how do I subpoena "witnesses.
“The Court: Pour years of college, three years of law school. That will get you a good start.
“(Brief break.)
“The Court: If you want a subpoena issued, if you can’t figure out how to do it, you’re going to have to get somebody to do it for you. Pour years of college and three years of law school, that may not be enough, but somebody can figure out how to get you a subpoena probably if you don’t have a lawyer.
“[Sims]: I have another question. I retained a lawyer, Mr. Doug Ghee.
“The Court: He knows how to issue a subpoena.
“[Sims]: Yeah, but I’m not sure if he’s going to represent me at the revocation hearing or not.
“The Court: Okay. Well, best be finding out.
“(END OF PROCEEDINGS)”

(R. 3^4.)

On October 1, 2014, Sims appeared before the circuit court with counsel, and the circuit court simply reset the hearing to October 29, 2014. (R. 8-9.) There was no discussion concerning Sims’s right to counsel.

On October 29, 2014, immediately before the revocation hearing began, an attorney appeared with Sims, but the following occurred:

“The Court: Patrick Sims. You’re Patrick Sims; is that correct?
“[Sims]: Yes, sir.
“The Court: You appear with the Honorable Doug Ghee who’s been appointed?
“Mr. Ghee: No, sir.
“The Court: Retained?
“Mr. Ghee: Retained in another matter, but I’m here with him on this matter.
“The Court: The state is represented by the Honorable Lynn Hammond. You’ve seen your report; is that correct?
“[Sims]: Yes, sir.
“The Court: Any additions or corrections to the report?
“[Sims]: Yes, Your Honor.
“The Court: What are they?
“Mr. Ghee: Judge, like I say, I represent him in another matter, and I just saw he was on the docket and I stood up here with him. I’ve not seen his report. Can we have a few minutes to look at it? May I have a few?
“The Court: Do you have an extra report?
“Mr. Ghee: I’ll look at his copy. Judge. I’ll look at his copy if you’ll call us back.
“The Court: Okay.
“Mr. Ghee: Thank you.
“The Court: All right.
“(Brief break.)
“The Court: Patrick Sims. Did /all talk any? Do y’all need a hearing?
“Mr. Ghee: Judge, we talked. May we approach?
“The Court: Sure. Did you talk to the State about this?
“Mr. Ghee: No, sir. I’ve talked to the probation officer, Judge, but—technically I don’t represent Mr. Sims on this case, Your Honor. I represent him on the case that’s the new charge that he does have that’s pending that he has had a preliminary hearing on and professes his innocence on. He and I have a disagreement about how to proceed today. I’m here with him on it because I do represent him on the other case. He would like to ask the Court for time to seek legal counsel on this particular case and come back before you, and I think he wants to address the Court if you will allow.
“The Court: I think—didn’t we already—we had a hearing set for October already once, didn’t we? I think I said something about getting a video, about getting a police officer. Have you got the police officer present?
“Ms. Hammond: I do.
“Mr. Ghee: There is a video, Your Honor, and I have requested—I have seen it myself. And I’ve also requested a copy of it from Randy to give Mr. Sims.
“The Court: Yeah. I mean, I don’t have to have a trial on the offense itself. I just need to be reasonably satisfied that one occurred.
“Mr. Ghee: Yes, sir.
“The Court: This police officer is going to be able to identify this man?
“Ms. Hammond: Yes, sir.
“Mr. Ghee: You have a good memory, Your Honor, and that is true. The video did come up.
“The Court: That’s what I was concerned about last time, so I gave him some leeway. And here we are again today.
“Mr. Ghee: I’ve seen the video and I’ve related to him what was in the video.
“The Court: I’m going to go on. It’s been a month. You ready to go forward?
“Ms. Hammond: Yes, Your Honor.
“The Court: Call your first witness.
“Ms, Hammond: State calls Officer Leach.
“The Court: Sure.
“Ms. Hammond: Sorry. Officer Grear. I got mixed up on my officers.
“Mr. Ghee: Judge, he does not wish for me to be here with him.
“The Court: Sure, I understand.”

(R. 13-16.)

Although it appears that Sims might have known that he had a right to counsel, he was never advised of his right to counsel, and he ultimately was not represented by counsel at the revocation hearing. It appears that, on the day of the hearing, Sims wanted to ask the circuit court for time to seek legal counsel, but, without discussing Sims’s right to counsel, the circuit court proceeded with the hearing. The record does not clearly indicate that Sims understood his right to counsel and that he voluntarily relinquished that right. On remand, the circuit court must fully advise Sims of his right to counsel, and the court can determine whether Sims is entitled to counsel under Rule 27.6(b), Ala. R. Crim P.

Conclusion

If, after Sims is fully advised of his right to counsel, the circuit court determines that counsel is not required, the court must set forth its findings in the record. If, after the revocation hearing, the circuit court determines that Sims’s probation should be revoked, the court must set forth in the record the evidence and the proper grounds for the revocation. ,

Based on the foregoing, the case is remanded for the circuit court to set aside its revocation order and to conduct a new hearing. On remand, 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 after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

       Note from the reporter of decisions: On October 15, 2015, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


source: Caselaw Access Project

author: KELLUM, Judge. JOINER, Judge,

license: Public Domain

text:
    STATE of Alabama v. Danny PYLANT.
    CR-14-1628.
    Court of Criminal Appeals of Alabama.
    Feb. 12, 2016.

      Luther Strange, atty gen., and Michael A. Nunnelley, asst atty. gen., for appellant.
    James M. Byrd, Mobile, for appellee.
   KELLUM, Judge.

Danny Pylant was indicted for driving under the influence of alcohol, a violation of § 32-5A-191, Ala. Code 1975. The Baldwin Circuit Court dismissed the indictment on the ground that Pylant was denied his constitutional right to a speedy trial. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s judgment dismissing Pylant’s indictment.

The record indicates that Pylant was arrested, for driving under the influence of alcohol (“DUI”) and criminally negligent homicide on March 29, 2014. The DUI charge was nolle prossed by the State on April 7, 2014; the criminally-negligent-homicide charge remained pending. The grand jury subsequently “no billed” the homicide charge but indicted Pylant on August 27, 2014, for DUI. On September 12, 2014, a warrant was issued for Pylant’s arrest. On July 2, 2015, a sheriffs deputy executed the warrant, and Pylant was arrested. On July 22, 2015, Pylant pleaded not guilty, waived arraignment, and demanded a trial by jury. That same day, Pylant also filed a motion to dismiss his indictment on the ground that he had been denied his right to a speedy trial. The State subsequently filed a motion to dismiss Pylant’s motion in which it argued that Pylant had not been denied his right to a speedy trial. After considering the arguments of counsel presented at a hearing on the motion, the circuit court entered an order on August 30, 2015, granting Pylant’s motion to dismiss. This appeal followed.

The State contends that the circuit court erroneously granted Pylant’s motion to dismiss the indictment against him on a speedy-trial ground because, it argues, Py-lant failed to present any evidence indicating that he was prejudiced by the delay or that he was entitled to a finding that prejudice should be presumed. “The facts before us are undisputed. The only question to be decided is a question of law, and our review is therefore de novo.” Ex parte Heard, 999 So.2d 978, 980 (Ala.2003), citing Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003).

In determining whether a defendant has been denied his or her constitutional right to a speedy trial, we apply the test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which considers the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) the prejudice to the defendant.

In Ex parte Walker, 928 So.2d 259, 263 (Ala.2005), the Alabama Supreme Court stated:

“ ‘A single factor is not necessarily determinative, because this is a “balancing test, in which the conduct of both the prosecution and the defense are weighed.” ’ Ex parte Clopton, 656 So.2d [1243] at 1245 [ (Ala.1985) ] (quoting Barker, 407 U.S. at 530). We examine each factor in turn.”

A. Length of the delay. Pylant was initially arrested on March 29, 2014, for DUI but the charge was nolle prossed by the State. Pylant was then indicted on August 27, 2014, for the March 2014 DUI and was arrested on July 2, 2015; the circuit court conducted a hearing on Py-lant’s speedy-trial motion on August 27, 2015. The delay in this case was 17 months.

“In Doggett v. United States, the United States Supreme Court explained that the first factor—length of delay—'is actually a double enquiry.’ 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this factor is whether the length of the delay is ‘ “presumptively prejudicial.’” 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). A finding that the length of delay is presumptively prejudicial ‘triggers’ an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.’). See also Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002).
“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest-warrant—-whichever is earlier—to the date of the trial.’ Roberson, 864 So.2d at 394. Cf. § 15-3-7, Ala.Code 1975 (‘A prosecution may be commenced within the meaning of this chapter 'by finding an indictment, the issuing of a warrant or by binding over the offender.’); Rule 2.1, Ala. R.Crim. P. (‘All criminal proceedings shall be commenced either by indictment or by complaint.’).” -

Ex parte Walker, 928 So.2d at 263-64.

In the instant case, the 17-month delay was presumptively prejudicial. Ingram v. State, 629 So.2d 800, 802 (Ala.Crim.App.1993)(19-month delay presumptively prejudicial); Beaver v. State, 455 So.2d 253, 254 (Ala.Crim.App.1984)(16-month delay presumptively prejudicial); Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)(“Depending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”). “A finding that the length of delay is presumptively prejudicial triggers an examination of the remaining three Barker factors.” Ex parte Walker, 928 So.2d 259, 263-64 (Ala.2005)(citing Doggett v. U.S., 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Because the delay falls within the period considered presumptively prejudicial, we will evaluate the remaining Barker criteria.

B. Reasons for delay. In Ex parte Walker, supra, the Alabama Supreme Court stated:

“The State has the burden of justifying the delay. See Barker, 407 U.S. at 531; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘“to gain some tactical advantage over (defendants) or to harass them.” ’ 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [(Ala.1990) ]. Justified delay—which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible—is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993)(‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.”’)(quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

Ex parte Walker, 928 So.2d at 265.

In the instant case, negligent delay on the part of the State resulted in the approximately 10-month delay between the August 27, 2014, indictment and Py-lant’s arrest on July 2, 2015. Any delays immediately following Pylant’s March 2014 arrest and before his August 2014 indictment, however, were standard delays associated with post-arrest procedures and preparing and presenting a case to a grand jury. The record does not indicate that the State deliberately delayed Pylant’s prosecution. “ ‘Delays caused by the state’s negligence are weighed against the state but not as heavily as if the state had intentionally caused the delays.’ ” Coventry v. State, 903 So.2d 169, 172 (Ala.Crim.App.2004)(quoting Franklin v. State, 644 So.2d 35, 37 (Ala.Crim.App.1994)). “[N]egligenee and ‘bureaucratic indifference and inefficiency5 must be weighed against the State, although not as heavily as a deliberate attempt to delay the trial.” Kimberly v. State, 501 So.2d 534, 537 (Ala.Crim.App.1986)(quoting Taylor v. State, 429 So.2d 1172, 1174 (Ala.Crim.App.1983)). As the United States Supreme Court explained in Barker: “A more neutral reason such as negligence or overcrowded courts should be weighted less heavily [against the State] but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 407 U.S. at 531. Because the record indicates that 10 months of the 17-month delay, at most, was attributable to the State’s negligence, this factor weighs only lightly against the State.

C. Assertion of right to speedy trial. The record contains only one request for a speedy trial, which was filed by Pylant 20 days after his arrest. Before the case was set for trial, the circuit court conducted a hearing on Pylant’s request for a speedy trial and dismissed the indictment against Pylant.

“ ‘An accused does not waive the right to a speedy trial simply by failing to assert it. Barker, 407 U.S. at 528, 92 S.Ct. 2182. Even so, courts applying the Barker factors are to consider in the weighing process whether and when the accused asserts the right to a speedy trial, 407 U.S. at 528-29, 92 S.Ct. 2182, and not every assertion of the right to a speedy trial is weighted equally. Compare Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990)(“Repeated requests for a speedy trial weigh heavily in favor of an accused.”), with Clancy v. State, 886 So.2d 166, 172 (Ala.Crim.App.2003) (weighting third factor against an accused who asserted his right to a speedy trial two weeks before trial, and stating: “‘The fact that the appellant did not assert his right to a speedy trial sooner “tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.” ’ ”)(quoting Benefield v. State, 726 So.2d 286, 291 (Ala.Crim.App.1997), additional citations omitted), and Brawn v. State, 392 So.2d 1248, 1254 (Ala.Crim.App.1980)(no speedy-trial violation where defendant asserted his right to a speedy trial three days before trial).”’

State v. Jones, 35 So.3d 644, 654 (Ala.Crim.App.2009)(quoting Ex parte Walker, 928 So.2d at 265-66). Because Pylant filed his request of a speedy trial within a month of his arrest for DUI, this factor weighs in favor of Pylant.

D. Prejudice to the defendant. In his motion to dismiss, Pylant alleged that he was prejudiced by the 17-month delay because, he says, he could not locate “two eye witnesses who would attest to [his] innocence.” (C. 13.) Pylant alleged that the witnesses spoke to him immediately before his arrest and that “there was no indication [Pylant] was under the influence of alcohol.” (C. 13.)

In Ex parte Walker, the Alabama Supreme Court discussed the general principles concerning prejudice and set forth guidelines regarding the interaction of the type and weight of prejudice with the cause of the delay and explained how those two factors influenced the defendant’s burden of proving the fourth prong of Barker:

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ Doggett [v. United States], 505 U.S. [647,] 656 [ (1992) ], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: ‘ “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence.’ Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532, and citing Smith v. Hooey, 393 U.S. 374, 377-79 (1969); United States v. Ewell, 383 U.S. 116, 120 (1966)). ‘Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” 505 U.S. at 654 (quoting Barker, 407 U.S. at 532).
"....
“The United States Supreme Court in Doggett used three hypothetical cases to demonstrate the accused’s burden under the fourth Barker factor. 505 U.S. at 656-57, 112 S.Ct. 2686. See Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir.1993) (discussing Doggett). The accused’s burden ‘of proof in each situation varies inversely with the [State]’s degree of culpability for the delay.’ Robinson, 2 F.3d at 570 (citing Doggett, 505 U.S. at 656, 112 S.Ct. 2686). In the first scenario, where the state pursues the accused ‘with reasonable diligence,’ the delay— however long—generally is excused unless the accused demonstrates ‘specific prejudice to his defense.’ Doggett, 505 U.S. at 656, 112 S.Ct. 2686. Thus, when the state acts with reasonable diligence in bringing the defendant to trial, the defendant has the burden of proving prejudice caused by the delay.
“[Discussion of the second situation recognized in Doggett involving bad-faith efforts by the state to delay the defendant’s trial],
“The third scenario recognized in Doggett involves delay caused by the state’s ‘official negligence.’ Doggett, 505 U.S. at 656-57, 112 S.Ct. 2686. Official negligence ‘occupies the middle ground’ between bad-faith delay and diligent prosecution. Id. In evaluating and weighing negligent delay, the court must ‘determine what portion of the delay is attributable to the [state]’s negligence and whether this negligent delay is of such a duration that prejudice to the defendant should be presumed.’ Robinson, 2 F.3d at 570 (citing Doggett, 505 U.S. at 656-58, 112 S.Ct. 2686). The weight assigned to negligent delay ‘increases as the length of the delay increases.’ United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir.2003)(citing Doggett, 505 U.S. at 656-57, 112 S.Ct. 2686). Negligent delay may be so lengthy—or the first three Barker factors may weigh so heavily in the accused’s favor—that the accused becomes entitled to a finding of presumed prejudice. 352 F.3d at 231 (citing Robinson, 2 F.3d at 570, citing in turn Doggett, 505 U.S. at 655, 112 S.Ct. 2686). When prejudice is presumed, the burden shifts to the state, which must then affirmatively show either that the delay is ‘extenuated, as by the defendant’s acquiescence,’ or ‘that the delay left [the defendant’s] ability to defend himself unimpaired.’ Doggett, 505 U.S. at 658 & n. 4, 112 S.Ct. 2686.”

928 So.2d at 266-68.

Even when the delay is caused by the prosecution’s negligence, the defendant is not necessarily entitled to a presumption of prejudice. The Alabama Supreme Court has also held:

“The Doggett Court did not, however, establish a bright-line rule for the length of delay caused by governmental negligence that will warrant a finding of presumed prejudice under the fourth Barker factor. Even so, when an accused alleges solely that her trial was delayed because of governmental negligence—as is the case here—lower federal courts applying Doggett generally do not presume prejudice under the fourth Barker factor unless the postindictment delay is five years or more. Like the Doggett Court, we do not adopt a bright-line rule for the length of delay that will result in a finding of presumed prejudice. But we note that the four-year- and-two-month delay in Walker’s case is well within the five-year time period generally established by federal cases for presuming prejudice. Further, ‘[t]here is no indication from this record that either the [State]’s negligence or the resulting length of the delay here adversely affected the evidence so as to undermine the fairness of a trial.’ [United States v.] Serna-Villarreal, 352 F.3d [225,] 233 (5th Cir.2003).”

Ex parte Walker, 928 So.2d at 270 (some internal citations omitted).

In his motion to dismiss, Pylant generally alleged that he was unable to locate two eyewitnesses who would attest to his innocence. At the hearing on the motion to dismiss, Pylant offered no evidence in support of the general allegations of prejudice made in his motion to dismiss. Specifically, Pylant failed to explain why the witnesses could not be located or what efforts he had made to locate the witnesses. The prosecutor, however, did note at the hearing that the contact information for the witnesses was contained in the discovery and that infoi-mation included e-mail addresses. Although defense counsel indicated in his motion to dismiss that he had spoken with both witnesses at some point following Pylant’s arrest, defense counsel did not state whether he had attempted to contact the witnesses again using the information contained in the State’s discovery. Moreover, the record indicates that Pylant was not subject to extended pretrial confinement because he was released on bond shortly after his March 2014 arrest. Pylant’s unsubstantiated claim regarding his inability to locate two witnesses is insufficient to show prejudice.

In this case, the delay did not violate Pylant’s right to a speedy trial. See Doggett, 505 U.S. at 656 (“Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable.”); Barker, 407 U.S. at 521 (recognizing that delay in bringing an accused to trial does not always prejudice the accused); United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir.2003)(“Obviously, in this balancing [of the Barker factors], the less prejudice [an accused] experiences, the less likely it is that a denial of a speedy trial right will be found.”). In balancing the four Barker factors, we cannot say that the delay in this case experienced by Pylant prejudiced him to a degree that would warrant the dismissal of his indictment. Accordingly, the circuit court erred in granting Pylant’s motion to dismiss his indictment on a speedy-trial ground.

Based on the foregoing, the judgment of the trial court is due to be, and is hereby, reversed and this case is remanded for the circuit court to set aside its order dismissing the indictment and to restore Pylant’s case to its active trial docket.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH and BURKE, JJ., concur.

JOINER, J., concurs specially, with opinion.

JOINER, Judge,

concurring specially.

I concur fully in the main opinion, I write specially to explain why I think reversal of the circuit court’s judgment— without first remanding for additional findings and possibly additional proceedings— is appropriate under the circumstances of this case.

As the main opinion notes, the circuit court did not state its reasons for granting the motion to dismiss the indictment on the basis that Danny Pylant was denied his right to a speedy trial. In cases such as State v. Tolliver, 171 So.3d 94 (Ala.Crim.App.2014), in which the circuit court granted a motion to dismiss an indictment on a speedy-trial ground but did not state its reasons for doing so, we have remanded the matter for the circuit court to make specific, written findings of fact as to the factors outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and examined in Ex parte Walker, 928 So.2d 259 (Ala.2005), and, if necessary, to hold additional proceedings. See also State v. Stovall, 947 So.2d 1149 (Ala.Crim.App.2006). Here, however, Pylant did not present any evidence in support of his allegation that he had suffered actual prejudice; rather, he offered only the argument of counsel, which, as the main opinion notes, was refuted by the argument of counsel for the State. Further, the record in this case is sufficient for this Court to review the proceedings de novo.