Imagine you’ve been charged with an offense, possession of a controlled substance. In your eyes, it was a minor, victimless crime. You were non-violent, merely pulled over after work with what you consider a harmless personal vice. You know it may not be the healthiest choice, but you also know alcohol, legally and widely accepted, can be just as harmful. Nonetheless, you are charged. However, you’re a productive member of society, a hard worker, and the court acknowledges that your non-violent offense shouldn’t land you in jail. The judge is lenient, sentencing you to two years of probation, contingent on your successful completion of a drug treatment program.

You attend the program. To your own surprise, it works. You no longer feel the need for your vice. In hindsight, the arrest feels like a turning point, maybe even the best thing that ever happened to you. But then things take an unexpected turn. After completing the program, your probation officer can’t reach you for about a week. Without further inquiry, the officer concludes you are actively avoiding supervision. You're arrested and suddenly facing revocation of probation and real jail time. Shockingly, the officer who claimed you were avoiding supervision never shows up in court. The only person who testifies never even spoke to the officer, they merely read a report. You’re stunned. This can’t possibly be enough to send someone to jail, you think. You turn to your attorney and ask: Is this really allowed?

In a case with similar circumstances, the Alabama Court of Criminal Appeals held on March 28, 2025, that the evidence presented was insufficient to revoke probation. The Court reversed the Etowah County Circuit Court’s revocation of David Lee Fitts’s probation. Fitts’s case arose out of Etowah County, Alabama, where he was convicted of possession of a controlled substance. For that offense, he was sentenced to two years of probation and ordered to complete a drug treatment program. Fitts attended and graduated from the program; however, following graduation, he ceased contact with his probation officer, Officer Waldrep. Waldrep was unable to locate Fitts for approximately a week and was informed by Fitts’s wife that he had relapsed and was using drugs again. Based on this, Officer Waldrep drafted a delinquency report alleging that Fitts had violated the terms of his probation. Fitts was subsequently arrested.

At the probation revocation hearing, the only testimony presented against Fitts came from Probation Officer Swain, who “conceded that he had never spoken with Fitts because he ‘ha[d] a Marshall County officer supervising him, and the report was filed by that office.’” Fitts v. State, No. CR-2024-0283, 2025 WL 938591, at *1 (Ala. Crim. App. Mar. 28, 2025). Despite Fitts’s objection that there was no non-hearsay evidence establishing a violation of his probation terms, the circuit court nonetheless revoked his probation. Fitts appealed this decision to the Alabama Court of Criminal Appeals, arguing that the Etowah County Circuit Court’s ruling was invalid because “the circuit court's ruling was solely based on hearsay evidence.” Id.

In response, the Alabama Court of Criminal Appeals held: “The State failed too present any no hearsay evidence indicating that Fitts had absconded, the circuit court abused its discretion by revoking Fitts's probation. Accordingly, this Court reverses the circuit court's order revoking Fitts's probation and remands this case for further proceedings consistent with this opinion.” Id. Under Alabama law, “hearsay evidence may not form the sole basis for revoking an individual's probation.” Corbitt v. State, 369 So. 3d 682, 685 (Ala. Crim. App. 2022). Hearsay is defined as any out-of-court statement offered to prove the truth of the matter asserted.

In this case, Officer Swan, who was not present at any of the events, was relying on hearsay statements. This is because he testified to out-of-court statements made by Officer Waldrop and offered them to show that Fitts violated his probation order. While testifying “based upon his personal knowledge and not merely repeating the contents of documents, his statements are by definition not hearsay.” Stephens v. First Commercial Bank, 45 So. 3d 735, 738 (Ala. 2010). However, in this case, “the State cites no specific authority establishing” Officer Swan knew of the report directly or was quoting the report. Fitts v. State, WL 938591, at *3. Because the State failed to offer non-hearsay evidence as required, the Court reversed “the circuit court's order revoking Fitts's probation.” Id.

The Alabama Court of Criminal Appeals made the correct decision in this case, relying on a relatively straightforward legal principle: under Alabama law, the State must provide more than hearsay evidence to revoke probation. Because the State offered only hearsay in this instance, the court appropriately set aside the revocation. The State committed a critical error that undermined its case, allowing an individual who may have clearly violated the terms of probation to avoid consequences. The State could have avoided this outcome by calling the original officer to testify or by laying a proper foundation for the report referenced by their witness. While it’s not certain this would have changed the outcome, it would have strengthened the State’s position. Fitts was fortunate that the State failed to meet its evidentiary burden; had it not, it is likely the court would have ruled against him.

If you have a Federal Criminal case, a State Criminal case, a Municipal Case or a Family Law case, contact Joe Ingram or Joe Joe Ingram Law, LLC at 205-335-2640. Get Relief * Get Results.