Andrews v. State

• Citation: 282 S.W.3d 372
• Decision Date: 10 March 2009
• Docket Number: No. WD 69603.,WD 69603.
• Parties: Matthew B. ANDREWS, Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

282 S.W.3d 372

Matthew B. ANDREWS, Appellant, v. STATE of Missouri, Respondent.

No. WD 69603.

Missouri Court of Appeals, Western District.

March 10, 2009.

Rehearing Denied April 28, 2009.

Michael E. Reardon, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes and Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and JAMES EDWARD WELSH, JJ.

JAMES EDWARD WELSH, Judge.

Matthew B. Andrews appeals the circuit court's judgment, after an evidentiary hearing, denying his Rule 24.035¹ motion in which he sought to have his five year prison term vacated. In his sole point on appeal, Andrews asserts that the circuit court erred in overruling his motion because the record established that, when the circuit court revoked his probation on September 7, 2007, it had already lost jurisdiction over his case. We affirm.

On December 3, 2003, Andrews pleaded guilty to one count of possession of a controlled substance. The circuit court sentenced him to a five year term in the Department of Corrections. The circuit court, however, suspended his sentence and placed him on probation for a three year term. While he was on probation, Andrews had repeated problems with law enforcement, and his probation officer filed numerous violation reports with the circuit court.

On October 24, 2006, Andrews's probation officer filed her final case summary report regarding Andrews's conduct on probation. This report recounted Andrews's various difficulties while on probation. Thereafter, on October 31, 2006, while Andrews was still on probation, the circuit court entered an order extending his probation for two additional years. On March 13, 2007, due to more problems with controlled substances, the circuit court revoked his probation and, pursuant to § 559.115,² placed him in an institutional treatment program. The circuit court remanded him to the custody of the Sheriff of Platte County until the Department of Corrections could find room for him. Andrews completed the program, and the circuit court placed him on probation again. On September 6, 2007, due to more drug problems, the circuit court revoked his probation and ordered Andrews to serve his five year prison term.

On October 24, 2007, Andrews filed his Rule 24.035 motion in which he sought to vacate his sentence. He claimed that the circuit court's order extending his probation was void because the circuit court had no authority to extend his probation without holding a hearing and finding that he violated his probation. Thus, he claimed that, since the circuit court had no authority to extend his probation, his probation ended on December 3, 2006, and therefore the circuit court could not find him guilty of violating his probation in March 2007. On March 7, 2008, the circuit court held an evidentiary hearing and denied Andrews's claim. This appeal follows.

Before we can address the merits of Andrews's claim, we must address the State's two procedural arguments. First, it claims that we cannot review Andrews's claim because Andrews failed to file his Rule 24.035 motion in a timely manner.³ Hall v. State, 992 S.W.2d 895 897 (Mo.App.1999).⁴ Rule 24.035(b), which governs the time limits for the filing of a post-conviction relief motion, says that:

If no appeal of such judgment was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.

....

Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 24.035.

Thus, under Rule 24.035, an appellant has 180 days from the date of his incarceration in the Department of Corrections to file his Rule 24.035 motion. The time limits in Rule 24.035 begin to run the day of the appellant's initial delivery to the Department of Corrections. Hall, 992 S.W.2d at 897. This is true even in cases where, pursuant to § 559.115, the circuit court remands the appellant to the department so he can enter an institutional treatment program and grants him probation when he completes the program. Id. Rule 24.035's time limits are constitutionally valid and mandatory. Id. We are required to strictly enforce these limits and are not allowed to extend them. Id.

In this case, on March 15, 2007, the circuit court revoked Andrews's probation and, pursuant to the provisions of § 559.115, placed him in an institutional treatment center. The circuit court ordered Andrews to remain in custody until he could be placed in an institutional treatment program. The record, however, establishes that the circuit court did not immediately place Andrews in the physical custody of the Department of Corrections. Rather, the circuit court ordered Andrews to remain in the custody of the Sheriff of Platte County until the Department of Corrections could find space for him.

It is unclear from the record when Andrews was physically delivered to custody of the department. There is no specific docket reference regarding Andrews's delivery date. The circuit court, however, did make a docket entry on March 16, 2007, which stated that "A BED DATE OF MAY 7, 2007 has been reserved for Defendant." Although there is no entry indicating that Andrews actually physically arrived on that date, it is logical to assume that he could not have arrived before that date since the department did not have a bed for him. Thus, it appears from this entry that the earliest date that the Department of Corrections could have taken physical custody of Andrews was May 7, 2007. Andrews's 180 day period to file his 24.035 motion started to run on this date. Roth v. State, 921 S.W.2d 680, 681 (Mo. App.1996) (holding that the timeliness of the defendant's filing is determined by the date of his physical delivery to the custody of the Department of Corrections). Andrews's 180 day period ended on November 3, 2007, which was a Saturday so, pursuant to Rule 44.01(a),⁵ the period ran until the next Monday, which was November 5, 2007. Since Andrews filed his motion on October 24, 2007, he filed his motion within the applicable period.

Second, the State claims that we cannot review Andrews's appeal because his claim is not cognizable in a Rule 24.035 proceeding.⁶ Rule 24.035(a) sets out the exclusive list of claims that an appellant may raise in a post-conviction relief motion. West v. State, 159 S.W.3d 847, 852 (Mo.App.2005). Rule 24.035 says:

A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035.

All other claims are excluded from this rule by omission. West, 159 S.W.3d at 852.

The State claims that, under the language of Rule 24.035, an appellant may challenge the imposition of his sentence but cannot challenge the execution of that sentence. The State asserts that Andrews's claim is not cognizable under Rule 24.035 because his claim deals with whether or not the circuit court could execute his sentence. The State, however, concedes that it has raised this argument and similar arguments in numerous appeals and that this court has routinely rejected them. See Norfolk v. State, 200 S.W.3d 36, 38 (Mo.App.2006); Stelljes v. State, 72 S.W.3d 196, 199 (Mo.App.2002); Williams v. State, 927 S.W.2d 903, 907 n. 4 (Mo.App.1996). In fact, the courts are unanimous that an appellant's claim alleging that the circuit court lacked the authority to revoke his probation and execute his sentence because the probationary period had ended is cognizable in a Rule 24.035 motion. Id; see also Prewitt v. State, 191 S.W.3d 709, 711 (Mo.App.2006). We see no reason to revisit the holdings of these cases. Thus, Andrews's claim is cognizable in a Rule 24.035 proceeding. Having answered the State's issues, we now turn to the merits of Andrews's claim.

In his sole point on appeal, Andrews claims that the circuit court erred in overruling his Rule 24.035 motion because the record conclusively established that, when the circuit court revoked his probation on March 15, 2007, his probationary period had already ended on December 3, 2006, and that the circuit court's order extending his probation was void. Andrews claims that the circuit court's order, which it entered on October 31, 2006, extending his probation was void because, in violation § 559.036 and his due process rights, the circuit court extended his probation (1) even though there was no pending probation violation in front of it, and (2) without giving Andrews notice and a hearing.

In determining Andrews's claim, we must interpret § 559.036. When we interpret a statute, we are required to determine the General Assembly's intent and give effect to that intent. Cline v. Teasdale, 142 S.W.3d 215, 222 (Mo.App. 2004). We determine the General Assembly's intent by giving the statute's language its plain and ordinary meaning. Id. If, after giving the language its plain and ordinary meaning, the General Assembly's intent is clear and unambiguous then we are bound by that intent and ought not resort to any statutory construction. Id. "Statutory interpretation is purely a question of law, which we determine de novo." Id.

Section 559.036, which governs the circuit court's powers to extend and revoke a defendant's probation, says that:

2. The court may terminate a period of probation and discharge the defendant at any time...