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Patterson, filed this petition for a writ of habeas corpus requesting that we reinstate his original bail, which had been revoked.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
Patterson asserts that he is entitled to remain free on pretrial bail because, he argues, he has been acquitted of the
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.
Ex parte Colbert, 805 So.2d 687, 688 (Ala. 2001). See § 15-13-8, 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:
814 So.2d at 303-04.
Rule 7.5(b), Ala.R.Crim. P., provides, in pertinent part:
(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:
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:
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:
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.
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
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
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.