Boersig v. Missouri Dept. of Corrections, 79886

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLSTEIN
Citation959 S.W.2d 454
Docket NumberNo. 79886,79886
Decision Date23 December 1997

Page 454

959 S.W.2d 454
James BOERSIG, Appellant,
No. 79886.
Supreme Court of Missouri,
En Banc.
Dec. 23, 1997.

Page 455

James Boersig, Jefferson City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cassandra K. Dolgin, Asst. Atty. Gen., Jefferson City, for Respondent.


James Boersig and two other persons serving prison terms sought a declaratory judgment and injunctive relief against the Missouri department of corrections (the Department). Among other claims is one that the Department's application of Missouri's minimum prison term statute, sec. 558.019, RSMo, 1 violates the constitutional right to due process. The trial court entered summary judgment in favor of the Department. Only Boersig appeals. Because Boersig's petition challenges the validity of a statute of this state, this Court has jurisdiction of the appeal. Mo. Const. art. V, sec. 3. The judgment is affirmed.


In March of 1977, Boersig was sentenced 2 to a term of three years imprisonment for stealing. In November of 1980, Boersig was sentenced to a term of ten years imprisonment for attempting to obtain a controlled substance by forgery or alteration. In August of 1983, Boersig was paroled. In November of 1984, while on parole, Boersig received a two-year sentence for passing a bad check. This two-year sentence was ordered to be served consecutively with the ten-year sentence Boersig was already serving. In March of 1987, Boersig was again paroled. In November of 1989, while on parole, Boersig was again convicted of additional crimes and was sentenced to seven years imprisonment for second-degree robbery and seven years imprisonment for arson,

Page 456

to be served concurrently with Boersig's previous sentences. In April of 1994, Boersig was again paroled. In November of 1995, Boersig, for acts committed after August 28, 1994, received additional sentences of seven years imprisonment for stealing, seven years for second-degree burglary, seven years for stealing narcotics, and five years for leaving the scene of an accident. These sentences were to be served concurrently with each other and with Boersig's previous sentences.

The Department applied sec. 558.019.2(3) and found that Boersig had "three or more previous remands to the department of corrections for felonies unrelated to the present offense." Boersig was informed that he must serve at least 80% of his sentence before being considered for parole, conditional release or other early release.

Boersig filed a petition in the Circuit Court of Cole County seeking a declaratory judgment that the Department had misconstrued sec. 558.019 and had applied the provision in such a way as to violate his due process rights. The Department filed a motion for summary judgment, which the trial court granted. This appeal followed.


Boersig argues that the trial court erred in granting summary judgment. He alleges that application of sec. 558.019 by the Department violates his due process rights in that the determination of the existence of previous remands must be conducted by the court that sentenced him after notice and an opportunity to be heard. He also argues that even if the Department may apply sec. 558.019, the section should not be applied to him because he is not a "defendant" as stated in the statute. Finally, Boersig argues that the Department incorrectly determined that he had at least three prior remands because all of his sentences and paroles since 1980 have constituted but a single remand to the Department.

The moving party is entitled to summary judgment on a showing that there is not a genuine issue as to any material fact and that judgment should be granted as a matter of law. Rule 74.04(c)(3); ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). When considering an appeal from summary judgment, the court reviews the record in a light most favorable to the party against whom judgment was entered and must accord the nonmovant the benefit of all...

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14 cases
  • Huth v. State, 73164
    • United States
    • Court of Appeal of Missouri (US)
    • June 30, 1998
    ...trial court, that calculates how often a particular person has been placed within its custody. Boersig v. Missouri Dept. of Corrections, 959 S.W.2d 454, 457 (Mo. banc The trial court told defendant, now movant, the range of potential sentences for the crimes committed. Rule 24.02(b). It inf......
  • State v. Cannafax
    • United States
    • Court of Appeal of Missouri (US)
    • July 22, 2011
    ...a due process violation, a plaintiff must show a deprivation of a liberty or property interest.” Boersig v. Missouri Dept. of Corr., 959 S.W.2d 454, 456 (Mo. banc 1997). “ ‘There is no constitutional or inherent right to early release from prison.’ ” 9 [344 S.W.3d 291] Rentschler v. Nixon, ......
  • Young v. Pash, 4:13-CV-1880-RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • January 29, 2014 the process he received at his revocation hearing fail to state a claim for relief. See also Boersig v. Missouri Dep't of Corr., 959 S.W.2d 454, 456 (Mo. banc 1997) (Missouri's parole statute creates no liberty interest in parole); Ladd v. Missouri Bd. of Prob. and Parole, 299 S.W.3d 33,......
  • Bratton v. Mitchell, WD
    • United States
    • Court of Appeal of Missouri (US)
    • November 17, 1998
    ...respondents first present the Supreme Court hand down of December 23, 1997 in the case of Boersig v. Missouri Department of Corrections, 959 S.W.2d 454, 457 (Mo. banc 1997). Boersig's declaratory judgment suit did not, as in the case at bar, implicate the shock incarceration one hundred twe......
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