STATE OF MISSOURI ex rel. )
JOHN E. JULIAN, )
)
Relator, )
)
vs. ) No. SD34068
)
THE HONORABLE JUDGE MICHAEL ) Filed: November 24, 2015
HENDRICKSON, CIRCUIT JUDGE, )
30TH JUDICIAL CIRCUIT, )
)
Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
PRELIMINARY WRIT MADE ABSOLUTE
John E. Julian (“Relator”) brought a Petition for Writ of Prohibition against The
Honorable Michael Hendrickson after Judge Hendrickson set a hearing for probation
revocation approximately one year after his original five -year period of probation had
expired. We entered a Preliminary Writ of Prohibition/Mandamus and now make the
Writ permanent.
FACTS
April 10, 2009 - Relator is sentenced to seven years in Department of Corrections,
Hickory Co.
- Sentence was suspended and Relator placed on probation for five years
July 6, 2009 - Relator sentenced to serve a term on unrelated charges, St. Clair Co.
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July 27, 2009 - Relator sentenced to serve a term on other unrelated charges, Henry Co.
July 30, 2009 - Trial court makes docket entry ordering Hickory Co. probation
suspended
October 10, 2014 - Court “reinstates” Relator’s probation with notation that Relator
“shall not receive credit against probation time for his period of suspension
between 7/30/09 and 10/10/2014.”
October 31, 2014 - Relator seeks “early release” from probation, no objection from State.
November 7, 2014 - Respondent denies the request for “early release” from probation.
April 27, 2015 - a violation report filed with court.
May 1, 2015- Motion to Revoke probation filed, amended on May 19, 2015.
May 7, 2015- Court issues a warrant, served on July 23, 2015, on Relator (while he was
in prison)
August 3, 2015- Relator filed a Motion to Terminate Defendant’s Probation and for
Immediate Release.
August 7, 2015- Court denies the Motion
ANALYSIS
Relator contends he is entitled to an order prohibiting Respondent from
conducting a hearing on the pending motion to revoke his probation because his
probation expired on April 10, 2014, and during that time (1) no motion to revoke his
probation was filed, (2) Respondent did not manifest any intent to hold a hearing
regarding Relator’s probation, and (3) Respondent made no effort to conduct a hearing on
his probation. Respondent did not file a brief in response to Relator’s brief. He did file
an Answer to the Petition for Writ. In the Answer, he admitted the facts listed above;
however, Respondent contended that the sentencing court had the authority on July 30,
2009, to order the suspension of Relator’s probation and the subsequent reinstatement.
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Both parties rely upon section 559.036.1 The relevant parts of section 559.036, as set
forth in 2009, were:
1. A term of probation commences on the day it is imposed. Multiple
terms of Missouri probation, whether imposed at the same time or at
different times, shall run concurrently. Terms of probation shall also run
concurrently with any federal or other state jail, prison, probation or
parole term for another offense to which the defendant is or becomes
subject during the period, unless otherwise specified by the Missouri
court.
2. The court may terminate a period of probation . . . . The court may
extend the term of the probation, but no more than one extension of
any probation may be ordered except that the court may extend the
term of probation by one additional year by order of the court if the
defendant admits he or she has violated the conditions of probation or
is found by the court to have violated the conditions of his or her
probation. Total time on any probation term, including any extension
shall not exceed the maximum term established in section 559.016.
Procedures for termination, discharge and extension may be established by
rule of court.
....
4. Probation shall not be revoked without giving the probationer notice
and an opportunity to be heard . . . .
5. The prosecuting or circuit attorney may file a motion to revoke
probation or at any time during the term of probation, the court may issue
a notice to the probationer to appear to answer a charge of a violation, and
the court may issue a warrant of arrest for the violation. Such notice shall
be personally served upon the probationer. The warrant shall authorize the
return of the probationer to the custody of the court or to any suitable
detention facility designated by the court. Upon the filing of the
prosecutor or circuit attorney's motion or on the court's own motion,
the court may immediately enter an order suspending the period of
probation and may order a warrant for the defendant’s arrest. The
probation shall remain suspended until the court rules on the
prosecutor or circuit attorney’s motion, or until the court otherwise
orders the probation reinstated.
6. The power of the court to revoke probation shall extend for the duration
of the term of probation designated by the court and for any further period
which is reasonably necessary for the adjudication of matters arising
before its expiration, provided that some affirmative manifestation of an
intent to conduct a revocation hearing occurs prior to the expiration of the
1
All references to statutes are to RSMo Cum.Supp. 2005, unless otherwise indicated. We note that the
current version of section 559.036 has a different numbering of subsections.
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period and that every reasonable effort is made to notify the probationer
and to conduct the hearing prior to the expiration of the period.
(Emphasis added.)
As noted above, probation commences on the date it was imposed. Section
559.036.1; State ex rel. Whittenhall v. Conklin, 294 S.W.3d 106, 109 (Mo.App. S.D.
2009). Probation runs concurrently with state prison terms. Section 559.036.1. A term
of probation cannot exceed five years. Section 559.016.1(1). Any extension may not
exceed the five-year maximum “plus one additional year if the defendant admits or the
court finds that the defendant has violated the conditions of his or her probation.”
Section 559.016.3.
Section 559.036.5 provides that the court may enter an order suspending the
period of probation and may order a warrant for the defendant’s arrest, but only when as
a consequence of an alleged violation of that probation. Here, Respondent relies upon
this section as authority to suspend Relator’s probation in 2009, thus, making the
subsequent motion to revoke valid. Respondent, however, ignores the plain language and
context of the statute that set a violation of probation as a precondition for such a
suspension. In this case, there was no motion to revoke the Relator’s probation or any
allegation that Relator had committed a violation of the terms of probation pending at the
time that his probation was suspended.
As noted, section 559.016.3 states, “[t]otal time on any probation term, including
any extension, shall not exceed the maximum term as established in subsection 1 of this
section [five years] plus one additional year if the defendant admits or the court finds that
the defendant has violated the conditions of his or her probation.” Section 559.016.3;
State ex rel. Dotson v. Holden, 416 S.W.3d 821, 823 (Mo.App. S.D. 2013). Further,
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section 559.036.6 provided the only exception that allows a trial court to extend its
statutory authority and revoke probation. Starry v. State, 318 S.W.3d 780, 782-83
(Mo.App. W.D. 2010). Section 559.036.6 provided:
The power of the court to revoke probation shall extend for the duration of
the term of probation designated by the court and for any further period
which is reasonably necessary for the adjudication of matters arising
before its expiration, provided that some affirmative manifestation of an
intent to conduct a revocation hearing occurs prior to the expiration of the
period and that every reasonable effort is made to notify the probationer
and to conduct the hearing prior to the expiration of the period.
No motion to revoke probation was brought within five years after Relator’s probation
had commenced. Even if we were to assume, without so finding, that the court had the
authority to extend Relator’s probation without a pending motion to revoke probation for
an additional year, clearly Respondent violated the clear provision of section 559.036.6
regarding the conditions which must have been met and the total time of the probation
term. There was no motion to revoke probation or an allegation of a probation violation
brought within six years after probation was imposed. Respondent does not contend that
it “provided that some affirmative manifestation of an intent to conduct a revocation
hearing” occurred prior to the expiration of the period or that any reasonable effort was
made to notify Relator and conduct a hearing prior to the expiration of the extended
probation term. See Stelljes v. State, 72 S.W.3d 196 (Mo.App. W.D. 2002), State ex rel.
Strauser v. Martinez, 416 S.W.3d 798 (Mo. banc 2014), and State ex rel. Dotson v.
Holden, 416 S.W.3d 821 (Mo.App. S.D. 2013). Because Respondent exceeded its
statutory authority to act as intended when it revoked Relator’s probation, our
preliminary writ of prohibition/mandamus is made absolute.
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Nancy Steffen Rahmeyer, J. - Opinion Author
Gary W. Lynch, J. - Concurs
William W. Francis, Jr., J. - Concurs
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