State ex rel. Barnes v. Pilley
Decision Date | 04 May 2021 |
Docket Number | WD 84249 |
Citation | 624 S.W.3d 372 |
Court | Missouri Court of Appeals |
Parties | STATE of Missouri EX REL. Tamy BARNES, Relator, v. The Honorable Mark B. PILLEY, Associate Circuit Judge, Benton County, 30th Judicial Circuit, Missouri, Respondent. |
Fawzy T. Simon, Camdenton for relator.
Karen Woodley, Warsaw for respondent.
Before Writ Division: Lisa White Hardwick, P.J., and Alok Ahuja and W. Douglas Thomson, JJ.
Relator Tamy Barnes seeks a writ of prohibition to prevent the Respondent, Judge Mark B. Pilley of the Circuit Court of Benton County, from holding a probation revocation hearing after her term of probation has expired. Barnes contends that the circuit court no longer has statutory authority to revoke her probation because the court did not affirmatively manifest an intention to hold a revocation hearing, and failed to make reasonable efforts to conduct a revocation hearing, before Barnes’ probationary period expired. We issued a preliminary writ of prohibition. Because we agree with Barnes that the court failed to affirmatively manifest an intention to hold a probation revocation hearing before her probation expired, we now make the preliminary writ permanent.
On August 7, 2018, Barnes pleaded guilty to the Class B misdemeanor of driving while intoxicated in the Circuit Court of Benton County in Case No. 18BE-CR00065. The court sentenced Barnes to six months in jail, but suspended execution of that sentence and placed Barnes on two years’ probation.
On March 31, 2020, Barnes was again charged with driving while intoxicated, as well as three misdemeanor traffic offenses, in the Circuit Court of Camden County (Case No. 20CM-CR00357). The information in the Camden County case lists Barnes’ prior conviction in the Circuit Court of Benton County as the basis for a finding that Barnes is a prior offender.
On July 30, 2020, four months after commencement of the Camden County prosecution, the Circuit Court of Benton County made the following docket entry in Barnes’ case:
COURT BEING ADVISED THAT DEFENDANT HAS RECEIVED A NEW DWI IN CAMDEN COUNTY, HEREBY SUSPENDED DEFENDANTS PROBATION. DEFENDANTS APPEARANCE ON AUGUST 18TH, 2020 AT 8:00 AM IS MANDATORY. CLERK TO NOTIFY DEFENDANT OF SAME. MBP.
Barnes’ two-year term of probation in Benton County expired on August 7, 2020.
On August 18, 2020, Barnes appeared at the hearing scheduled by the Benton County court, without counsel. A docket entry on the same day states:
DEFENDANT APPEARS HAS BEEN CHARGED WITH DWI IN CAMDEN COUNTY. HAS APPEARANCE THERE ON 9-21-20. PROSECUTOR PLANS ON FILING MOTION TO REVOKE DEFENDANT'S PROBATION IN THIS CASE. CASE RESET TO OCTOBER 13, 2020 AT 8:00 A.M. MBP
The Respondent has suggested that the case was reset to permit Barnes to obtain counsel, but the record does not indicate whether either party requested this continuance, or the reasons for which the hearing was rescheduled.
On September 10, 2020, defense counsel entered an appearance on Barnes’ behalf. At the following two hearings, held on October 13 and November 10, 2020, Barnes’ counsel requested continuances.
On December 8, 2020, Barnes moved to be discharged from probation because her probationary period had expired, and the circuit court no longer had authority to revoke her probation. The court denied Barnes’ motion for discharge, finding that "it did all that it could and that which was reasonable prior to the expected expiration [of] Defendant's probation and has made a reasonable effort to deal with the issue."
Following the circuit court's denial of her motion for discharge from probation, Barnes filed a petition for writ of prohibition in this Court on January 9, 2021. After receiving Respondent's suggestions in opposition, this Court issued a preliminary writ of prohibition on January 25, 2021, staying further proceedings in the underlying Benton County case pending further order of this Court. We then set the case for briefing and oral argument.
We note that, although the prosecution apparently advised the circuit court that it intended to file a motion to revoke Barnes’ probation on August 18, 2020, no such motion has ever been filed.
A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.
State ex rel. Strauser v. Martinez , 416 S.W.3d 798, 801 (Mo. 2014) (citation omitted). "Writ relief lies when the circuit court lacks the authority to conduct a probation revocation hearing after the term of probation has expired." State ex rel. Boswell v. Harman , 550 S.W.3d 551, 554 (Mo. App. W.D. 2018) (citing State ex rel. Zimmerman v. Dolan , 514 S.W.3d 603, 607 (Mo. 2017) ; internal quotation marks omitted); accord State ex rel. Whittenhall v. Conklin , 294 S.W.3d 106, 109 (Mo. App. S.D. 2009) ( ).
While our "review is limited to the record made in the court below," "[w]hether a trial court has exceeded its authority is a question of law" that we decide in the first instance. State ex rel. Stimel v. White , 373 S.W.3d 481, 484 (Mo. App. S.D. 2012) (citations and internal quotation marks omitted).
"Jurisdiction to revoke probation normally ends when the probationary period expires." Stelljes v. State , 72 S.W.3d 196, 200 (Mo. App. W.D. 2002) (citing Williams v. State , 927 S.W.2d 903, 905 (Mo. App. S.D. 1996) ). However, the court's authority to revoke probation may be extended if certain requirements are met. Section 559.036.81 states:
416 S.W.3d at 801. "Unless the court meets both of these conditions, it cannot hold a revocation hearing after probation expires." Id.
The fact that the circuit court in this case suspended Barnes’ probation does not alter this analysis. Strauser makes clear that "suspending probation without deciding whether probation should be revoked, as the trial court did in [this] case[ ], does not relieve a court from meeting both of the conditions provided by section 559.036.8." Id. at 801 n.3. Even if a court has suspended probation, "a court must rule on the revocation motion before the probation term ends unless it meets the two conditions outlined in the statute." Id.
We conclude that in this case, the circuit court failed to satisfy the first mandatory condition specified in § 559.036.8: the court failed to affirmatively manifest its intent to hold a revocation hearing before Barnes’ probation expired.
"[T]here is no clear cut, bright line rule as to what an affirmative manifestation of intent to conduct a revocation hearing entails." Stimel , 373 S.W.3d at 484. Merely suspending an offender's probation is not sufficient, however. This is made clear by Strauser , which holds that a circuit court's order suspending probation "does not relieve a court from meeting both of the conditions provided by section 559.036.8." 416 S.W.3d at 801 n.3 ; see also State ex rel. Breeding v. Seay , 244 S.W.3d 791, 796 (Mo. App. S.D. 2008) ( ).
Besides suspending probation, before Barnes’ probation expired the circuit court also set the case for a status hearing (to be held outside the probationary period). Scheduling such a review hearing is likewise insufficient to manifest an intention to hold a probation revocation hearing. In Stelljes v. State , 72 S.W.3d 196 (Mo. App. W.D. 2002), this Court held that no "affirmative manifestation" had been made where, prior to the expiration of the offender's probation, "the court entered an order, requiring [the offender] to appear [after the expiration of the probationary period], to explain why he was not paying on costs" as required by his probation. Id. at 201. The Court stated that "[s]imply ordering a probationer to appear to explain why he was not paying his court costs is not an affirmative manifestation of an intent to revoke probation." Id.
The Southern District found that a circuit court failed to sufficiently manifest its intention to conduct a revocation hearing in virtually identical circumstances in State ex rel. Stimel v. White , 373 S.W.3d 481 (Mo. App. S.D. 2012). In Stimel , an offender's two-year term of probation for a stealing conviction expired on January 5, 2011. On December 10, 2010 – almost a month prior to the expiration of the offender's probationary period – an entry was made on the docket ...
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