Furey v. Missouri Department of Corrections, No. WD 65921 (Mo. App. 6/20/2006)

Decision Date20 June 2006
Docket NumberNo. WD 65921,WD 65921
PartiesJAMES F. FUREY, JR. Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of cole County The Honorable Thomas J. Brown, III, Judge.

RONALD R. HOLLIGER, Presiding Judge.

The Missouri Department of Corrections appeals the circuit court's summary judgment finding Mr. Furey's 2001 conviction and placement in a 120-day program under Mo. Ann. Stat. Section 559.115 (West Cum. Supp. 2005) and the subsequent probation revocation and prison placement must not be counted as a "prior commitment" for purposes of calculating the minimum prison time he must serve under Mo. Rev. Stat. Section 558.019 (2000). We hold that for purposes of calculating the minimum prison term, a commitment must be prior in time to the present commitment. Because a commitment to a 120-day program does not count as a commitment for purposes of calculating the minimum prison term, Furey's commitment on the 2001 conviction did not occur until his probation was revoked and he was sent to prison. Thus his commitment on the 2001 conviction was simultaneous with his commitment on the new charges and was not prior in time. The judgment is affirmed.

Facts

The facts are uncontested. Mr. Furey has been in prison three times. In 1989, he was committed to the Department of Corrections once and subsequently released. In 2001, for new offenses, he received concurrent four-year sentences, but entered a 120-day Department of Corrections program pursuant to Mo. Rev. Stat. Section 559.115 (Cum. Supp. 1999) in lieu of serving the sentences. At the end of the 120-day program, he received probation. In 2002, in connection with new offenses and breach of the conditions of his probation, Mr. Furey was again incarcerated, where he remains. This third incarceration involves concurrent seven-year sentences and reinstatement of the four-year terms of the 2001 sentence.

When the Department of Corrections calculated the minimum incarceration for the 2002 sentence, they counted two prior "commitments" for purposes of Mo. Rev. Stat. Section 558.019 (2000). Mr. Furey filed suit for declaratory judgment, claiming that his 120-day incarceration in 2001 is not a "commitment," and therefore he had only one prior "commitment" for purposes of calculating his minimum time served. The circuit court agreed with Mr. Furey and granted summary judgment. This appeal followed.

Discussion

We review a grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law[.]" Rule 74.04(c)(6). The material facts here are undisputed.

In 2003, the Missouri Legislature amended Mo. Rev. Stat. Section 559.115, adding subsection seven, which states that an offender's first 120-day incarceration is not a "commitment" for purposes of Mo. Rev. Stat. Section 558.019. In Irvin v. Kempker, 152 S.W.3d 358, 362 (Mo. App. 2004), we declared that the amendment to Section 559.115 applied retroactively. On the same day Irvin was handed down, we handed down Powell v. Missouri Department of Corrections, 152 S.W.3d 363 (Mo. App. 2004). The Missouri Supreme Court denied transfer in both cases, and has subsequently avoided addressing whether the Section 559.115 amendments apply retroactively. Star v. Burgess, 160 S.W.3d 376, 378 n. 2 (Mo. banc 2005).

Mr. Furey's 1989 commitment indisputably counts in determining the minimum sentence that must be served in the current incarceration. And the 2001 120-day program does not count, per section 558.019. The issue is whether the revocation of parole on the 2001 120-day program must be counted. The Department raises two points on appeal. The first point claims that the 2002 commitment (which Mr. Furey is still serving) "would be properly counted as a commitment, leading to the conclusion that for the 2006 calculation of the mandatory-minimum prison terms for the seven year sentences [for the new offenses], petitioner [Mr. Furey] continues to have two prior commitments." We decipher the Department to mean either (1) the current commitment counts as two separate commitments, one "prior commitment" for the reinstatement of the 2001 sentence, and one current commitment for the sentence for new offenses; or (2) we should view the current commitment retrospectively, so that, because it is now 2006, we should look at the current commitment as "prior" because it began in 2002, "prior" to today. We reject both...

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