Facts and Procedural Background In the underlying criminal case, the State charged Miller with two counts of the class C felony of involuntary manslaughter in the first degree. A two-day jury trial commenced on September 14, 2007. The evidence at trial demonstrated the following.
On December 25, 2004, Miller was driving a pickup truck southbound on Highway 63, a two-lane roadway, just outside of Rolla. As Miller approached the Beaver Creek bridge, he passed a couple also driving southbound. After passing the couple, Miller stayed in the northbound lane of the highway. Moments later, while crossing the bridge, Miller's truck struck another vehicle head-on. The occupants of the vehicle struck by Miller died as a result of the accident.
The jury found Miller guilty as charged, and on August 29, 2007, the trial court suspended imposition of sentence and placed Miller on five years' probation.
On June 26, 2012, the State filed a motion to revoke probation asserting Miller had violated his probation on June 11, 2012, by "being in possession of an imitation controlled substance and drug paraphernalia[.]" On that same day, the State sent a notice that the probation revocation hearing was being set for August 8, 2012. Miller's probation was due to expire on August 28, 2012.
Because the chronology and timing of procedural events is relevant to the resolution of this appeal, we relate those pertinent events as shown from the docket sheet:
| Motion for Probation Revocation filed by the State. |
| Notice of Hearing for August 8, 2012, on probation revocation, |
| Entry of Appearance filed by Miller's counsel. |
| Motion for Discovery filed by Miller's counsel. |
| "Per order of the court, cause passed to August 23, 2012 at 9:00am |
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[sic]." Defendant ordered to appear."
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| Motion for Probation Revocation filed by the State.4
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| Response to Request for Disclosure filed by the State. |
| Notice of hearing filed by the State. |
| Probation Violation Hearing scheduled for August 23, 2012. |
| Entry of Appearance filed by Miller's new attorney. |
| Motion to Withdraw filed by Miller's former attorney. |
| "Case reset for probation violation hearing on October 3, 2013 at |
| 9:00am. [sic] Defendant is ordered to appear." |
| "Hearing Continued From: 23-Aug-2012; 9:00 AM." |
| "Hearing Continued From: 03-Oct-2012; 9:00 AM."
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| Probation Violation Hearing Scheduled for December 5, 2012. |
| Amended Motion for Probation Revocation filed by the State.5
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On December 5, 2012, a probation revocation hearing was held. Prior to the hearing, the trial court addressed the issue of whether the trial court retained jurisdiction based on the timing of the revocation hearing. The following colloquy then took place:
THE COURT: There was a question about whether or not there was a necessity for a suspension. We looked up some case law, and it states that there must be a clear manifestation of an intention to revoke. The motion to revoke did that. And, secondly, that there was an attempt to get the matter set, reasonable efforts made to get it resolved prior to the expiration of five years.
I went back through the file. This matter has been set at least once, if not twice. Was continued by agreement without objection past the date - and specifically to today.
So, first of all, do the attorneys agree that that's what's transpired up to this point?
[THE STATE]: The State so stipulates, your Honor.
THE COURT: [Miller's attorney]?
[MILLER'S ATTORNEY]: Yes, your Honor.
THE COURT: The oral motion to dismiss filed in these proceedings earlier this morning then is denied. I'm of the opinion that the State's manifest and clear intent, reasonable efforts were made. It passed the five years by agreement of [Miller]; therefore, this Court has not lost jurisdiction.
Miller's attorney then announced that Miller was going to "admit to those . . . allegations stated in the motion to revoke[,]" that there was "actually three separate misdemeanors ranging back to 2008 through 2012, and those cases have been finalized in municipal or associate court." Miller admitted to the trial court that he violated the terms of his probation by virtue of the 2008, 2009, and 2012 charges of which he was either found guilty or voluntarily plead guilty to, and that currently, there were no pending charges against him.
The trial court sentenced Miller to five years in prison on each count, with the sentences to run consecutively, for a total of ten years. Miller appealed his convictions and sentences, and they were affirmed by this Court on October 21, 2014. State v. Miller, 448 S.W.3d 331 (Mo.App. S.D. 2014). Mandate was issued on December 24, 2014.
On March 19, 2015, Miller filed a pro se motion to vacate, set aside or correct the judgment or sentence6 alleging that the trial court did not have jurisdiction to revoke his probation because the revocation occurred after his probation ended.
An evidentiary hearing was held on July 27, 2016. The parties announced there was an issue of jurisdiction and proposed to present evidence by way of a "timeline by stipulation[.]" Using the docket sheet from the probation revocation case, the State recited into the record the stipulated timeline. Specifically, the State recounted that the continuances of the August 23, 2012 and October 3, 2012 probation revocation hearings were "by agreement of the parties[.]" At the conclusion of the State's recitation of the stipulated timeline, Miller's attorney stated that Miller "maintains that he did not agree to the - whatever his [attorney] may have done that he did not agree to any continuances of the hearing. . . . I think that's one of those he said/he said type things." The State offered no additional evidence.
Miller testified that his attorney "did do a verbal objection" to the "first two continuances," and "argued to the court that . . . my probation was about to expire." "[T]he main issue, was that he did make objection and . . . it was just a verbal argument."7
On September 9, 2016, the motion court issued its findings and judgment granting Miller's motion. The motion court specifically found that the hearing set for "August 8, 2012 was continued or reset to August 23, 20[128] due to the entry of conflict counsel for [Miller]." The motion court also found that the "August 23, 20[12] hearing was reset by signed memorandum of said date to October 3, 2012[,]" and that the memorandum was "signed by counsel for [Miller] and counsel for the [State] and does not indicate which party, if either, requested said continuance nor does it indicate the reason for the continuance."
The motion court concluded that the trial court did not have jurisdiction to revoke Miller's probation because the trial court did not make "every reasonable effort to hold the revocation hearing during the probationary period[,]" and that "there is no indication in the record for the reason for the continuance of the revocation hearing from its August 23, 20[12] date." This appeal followed.
In the State's sole point on appeal, the State argues that the motion court clearly erred in granting Miller's post-conviction motion in that the trial court made every reasonable effort to hold the revocation hearing within the probationary period.
The State argues that the motion court clearly erred in granting Miller's post-conviction motion to vacate, set aside, or correct the judgment or sentence in that the record shows the trial court "made every reasonable effort to hold the revocation hearing during the probationary period." Specifically, the State argues that the probation revocation hearing was continued twice with Miller's consent, and the hearing was held within five months after his probationary period ended.
"A term of probation commences the date it is imposed." Petree v. State, 190 S.W.3d 641, 642 (Mo.App. W.D. 2006) (citing section 559.036.1).9
A trial court retains jurisdiction to revoke probation after expiration of the term if (1) there is an affirmative manifestation of an intent to revoke probation prior to the expiration of the probationary period; and (2) if every reasonable effort is made to notify the probationer of the intent to revoke probation and to conduct a hearing prior to the expiration or probation.
Petrie, 190 S.W.3d at 642. "Unless the court meets both of these conditions, it cannot hold a revocation hearing after probation expires." State ex rel. Strauser v. Martinez, 416 S.W.3d 798, 801 (Mo. banc 2014). A defendant's consent to continuances, however, must be considered in determining whether the motion court made every reasonable effort to conduct the revocation hearing during the probationary term. Suber v. State, 516 S.W.3d...
