Carroll v. Missouri Bd. of Probation, No. WD 61871.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Harold L. Lowenstein
• Citation: 113 S.W.3d 654
• Decision Date: 08 July 2003
• Docket Number: No. WD 61871.
• Parties: Rodney Harlin CARROLL, Appellant Pro Se, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

113 S.W.3d 654 Rodney Harlin CARROLL, Appellant Pro Se,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, Respondent. No. WD 61871. Missouri Court of Appeals, Western District. July 8, 2003. Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 2003.

Rodney Harlin Carroll, Moberly, pro se.

John M. Morris, III, Tamara D. Ader, co-counsel, Jefferson City, for respondent.

Before LOWENSTEIN, P.J., SMART and EDWIN H. SMITH, JJ.

HAROLD L. LOWENSTEIN, Judge.

Rodney H. Carroll, acting pro se, appeals from the circuit court's denial of his petition for declaratory judgment, in which he argued that his 1984 conviction for stealing should not be counted as a remand for purposes of Section 558.019, RSMo 1994.¹ On appeal, Carroll claims

113 S.W.3d 655

that the court erred in granting the Missouri Board of Probation and Parole's (the "Board") motion for summary judgment dismissing his petition because the 1984 conviction was incorrectly counted since that conviction occurred while he was then in the custody of the Missouri Department of Corrections. Judgment affirmed.

Factual and Procedural History

In August 1997, Carroll was sentenced to fifteen years imprisonment for receiving stolen property in violation of Section 570.080 and is currently serving that sentence at the Moberly Correctional Center. Because Carroll was found to have three or more prior remands to the Department of Corrections (the "Department"), he is being required to serve eighty percent of that sentence, pursuant to Section 558.019.2(3). Carroll was first received into the Department in 1972 for "breaking jail," felonious assault, and grand stealing. He was discharged in 1976. In 1982 he was again received for robbery in the first degree and was discharged in 1986. In 1984, he was sentenced to one year for stealing over $150, to run concurrently with the 1982 sentence. In 1990, he was sentenced for stealing and receiving stolen property and was discharged in 1995. The 1997 sentence, which he is currently serving, is his fifth commitment.

In February 2002, Carroll filed a petition for declaratory judgment in the Circuit Court of Cole County. He alleged, among other things, that his conviction for stealing in 1984 should not be counted as a remand because he never left the custody of the Department in 1984 to be "re-committed." The Board subsequently filed an answer, motion for summary judgment, and a brief in support of that motion. On April 12, 2002, the trial court entered its Memorandum, Order and Judgment denying with prejudice Carroll's petition for declaratory judgment. This appeal follows.

Standard of Review

Although Carroll in his point relied on characterizes this appeal as one from a grant of summary judgment, both Carroll and the Board state that the standard of review in this case is that of any other court-tried case, i.e., the standards outlined in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It is not entirely clear from the record, however, whether this decision was one after a bench trial or upon the motion for summary judgment. No transcript of a hearing was filed and neither of the parties in their briefs indicates that a hearing or trial was held.

The docket sheet contained in the legal file reflects that the trial court denied the Board's motion for summary judgment on July 5, 2002. A hearing was held on August 5, 2002, in which it is noted, "Cause called and submitted," and on August 12, 2002, the docket entry notes "Tried by Court-Civil." Also on August 12, the denial of the motion for summary judgment was set aside and the judgment entered denying the petition for declaratory judgment. In its brief, the Board characterizes the decision of the court as granting the motion for summary judgment and denying the petition for declaratory judgment.²

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Generally, a distinction between a decision based upon trial or summary judgment is important for purposes of determining the standard of review since the standard of review for summary judgment and declaratory judgment, i.e., a court-tried case, are different. Compare Johnson v. Bd. of Prob. & Parole, 92 S.W.3d 107, 111 (Mo.App.2002) (standard of review from grant of summary judgment is de novo) and Andresen v. Bd. of Regents of Mo. Western State Coll., 58 S.W.3d 581, 585 (Mo.App.2001) (standard of review of denial of declaratory judgment is that of any other court-tried case, i.e., Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Nonetheless, the issue raised in Carroll's appeal involves a question of law. Thus, this court's review is de novo. See Lakin v. Gen. Am. Mut. Holding Co., 55 S.W.3d 499, 503 (Mo.App.2001).

Argument

Carroll's sole point on appeal is that the trial court erred in granting summary judgment³ because the court erroneously applied the law, the ruling was against the weight of evidence, and there was no substantial evidence to support the judgement. He alleges that the Missouri Supreme Court of Missouri in Boersig v. Missouri Department of Corrections, 959 S.W.2d 454 (Mo. banc 1997), held that new...