dissenting.
I respectfully dissent. I would not remand this matter for possible retrial but would reverse the judgment outright. The issue before us is, does RSMo 575.210.1 provide the elements to cover the facts of this case so that the defendant could be charged and convicted of violating the statute? I believe, for the following reasons, that the answer is No because the statute is inadequate as provided.
This matter came to us on a consolidation of defendant’s appeal from a judgment finding him guilty of escape from confinement and sentence to ten years and his appeal from a judgment denying him of post-conviction relief under Rule 29.15.
Defendant had previously pled guilty to stealing from a person and robbery first degree. He served a year in the county jail for the stealing charge. Defendant was placed on probation for the robbery first degree guilty plea. Approximately a year later, a capias warrant was issued for his arrest for possible probation violation. He was arrested. While waiting to be taken from a security van to the courtroom, defendant removed his shackles and cuffs and ran away from two guards. More than a year later he was apprehended and after hearing his probation was revoked.
Subsequently, the defendant was charged by a grand jury indictment with escape from confinement, in violation of RSMo § 575.210. On March 5, 1987 a jury convicted defendant of escape from confinement. In defendant’s direct appeal, he claims the court erred for the reason that the state failed to prove beyond a reasonable doubt that defendant was in confinement, after arrest for a crime or serving a sentence, at the time of his escape.
RSMo § 575.210.1 states “A person commits the crime of escape or attempted escape from confinement if, while being held in confinement after arrest for any crime, or while serving a sentence after conviction for any crime, he escapes or attempts to escape from confinement. [Emphasis mine].
*798A review of the transcript reveals that the defendant pled guilty to stealing from a person, a class C felony, and to guilty of robbery first degree, a class A felony. After a pre-sentence investigation by the Board of Probation and Parole the court pronounced sentence. He ordered the defendant to serve a term of imprisonment of one year in the St. Louis County facility and sentenced defendant under Count II to ten years in the custody of the Department of Corrections and Human Resources. He then ordered the defendant committed to the prison facility in St. Louis County to serve his time for Count I, however, the court ordered the execution of sentence to he suspended as to Count II and placed defendant on probation for five years subject to rules and provisions of the State Board of Probation and Parole.
Subsequently on May 16, 1984 the judge ordered his arrest and a capias was issued for the arrest of the defendant for possible probation violation. The St. Louis County Police Department, in compliance with the capias ordered by Judge Milton Saitz, returned the warrant as executed on July 24, 1986. The revocation hearing was set for August 23 but was continued to September 13, 1985 at the request of defendant’s attorney. The defendant was properly advised by notice of the probation hearing and the charges of his violation of the probation order. As a result of his escape on the 12th of September he did not answer the allegations.
We have said that probation revocation is not a criminal proceeding. Moore v. Stamps, 507 S.W.2d 939, 949 (Mo.App.1974) and it is not a part of a criminal prosecution. Brandt v. Percich, 507 S.W.2d 951, 957 (Mo.App.1974). In addition, there need not be a conviction in a court of competent jurisdiction before probation is revoked. Brandt, supra, p. 957. Further, our Supreme Court has said that a violation of the conditions of probation is not a criminal offense, and a proceeding to revoke is not a criminal prosecution. State v. Brantley, 353 S.W.2d 793, 796 (Mo.1962). If the defendant had appeared at the hearing on September 13, he would have appeared at a non-criminal probation revocation hearing during which the hearing judge would have determined if the defendant had violated his probation. The fact he did not appear does not transform a non-criminal probation hearing into a criminal inquiry. He was solely confined on a probation violation. Upon recapture his probation was revoked and he was ordered to serve his previous conviction because he violated his probation.
I would reverse the conviction for an insufficiency of evidence to prove an essential element of the crime charged; namely, the defendant did not escape from confinement while either being held in confinement after arrest for any crime or while serving after conviction for any crime.