State Ex Rel. Dwight K. Scroggins v. the Honorable Daniel F. Kellogg, No. WD 73178.

CourtCourt of Appeal of Missouri (US)
Writing for the Court%$*40 Before Writ Division: CYNTHIA L. MARTIN, Presiding Judge, KAREN KING MITCHELL, Judge and GARY D. WITT, Judge.
Citation335 S.W.3d 38
Decision Date08 February 2011
Docket NumberNo. WD 73178.
PartiesSTATE of Missouri ex rel. Dwight K. SCROGGINS, Jr., Buchanan County Prosecuting Attorney, Relator,v.The Honorable Daniel F. KELLOGG, Judge of the Circuit Court of Buchanan County, Missouri, Division IV, Respondent.

335 S.W.3d 38

STATE of Missouri ex rel. Dwight K. SCROGGINS, Jr., Buchanan County Prosecuting Attorney, Relator,
v.
The Honorable Daniel F. KELLOGG, Judge of the Circuit Court of Buchanan County, Missouri, Division IV, Respondent.

No. WD 73178.

Missouri Court of Appeals, Western District.

Feb. 8, 2011.


[335 S.W.3d 39]

Ronald R. Holliday, St. Joseph, MO, for relator.Jeffrey Wayne Cornelius, pro se.

[335 S.W.3d 40]

Before Writ Division: CYNTHIA L. MARTIN, Presiding Judge, KAREN KING MITCHELL, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Presiding Judge, Writ Division.

This action arises out of the entry of an Order dated October 7, 2010 (“Order”), by the Honorable Daniel F. Kellogg (“Respondent”), which Order granted Jeffrey W. Cornelius (“Cornelius”) credit for the time spent by Cornelius on probation from February 13, 2002, until his probation was revoked on June 14, 2004, a total of 852 days. The State of Missouri ex rel. Dwight K. Scroggins, Jr. (“Relator”) filed a Petition in Mandamus or in the Alternative for Prohibition and Suggestions in Support on November 16, 2010. By Order dated December 1, 2010, we stayed the force and effect of Respondent's Order until further order of this Court. On December 20, 2010, Respondent filed a Response to Relator's Petition in Mandamus or in the Alternative for Prohibition with Suggestions in Opposition, and a Motion to Dismiss.1 Having considered these pleadings, we now issue our peremptory writ of prohibition and mandamus,2 and remand this case with instructions. 3

Factual and Procedural Background

Cornelius was sentenced on February 13, 2002, following a guilty plea to seven years on a charge of first degree burglary and seven years on a charge of first degree assault, with the sentences ordered to be served consecutively. The execution of the sentences was suspended while Cornelius was on probation. On June 14, 2004, Cornelius's probation was revoked. Cornelius was ordered by the Respondent to serve 120 days “shock” time as a condition of his sentence remaining suspended. Upon delivery to the Department of Corrections, however, Cornelius was required to participate in a treatment program. Cornelius did not successfully complete the program. As a result, his suspended sentences were imposed. Cornelius is thus serving a fourteen year sentence in the Missouri Department of Corrections.

On October 7, 2010, Respondent entered his Order granting Cornelius credit for the time spent on probation from February 13, 2002, until the probation was revoked on June 14, 2004, a total of 852 days. Respondent relied on section 559.100.2 4 for the authority to enter his Order.

Analysis

In State ex rel. Wagner v. Ruddy, 582 S.W.2d 692, 695 (Mo. banc 1979), the Missouri Supreme Court “clearly held that once judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. The trial

[335 S.W.3d 41]

court can take no further action in that case except when otherwise expressly provided by statute or rule.Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993) (emphasis added); see also, State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006).

This principal was reiterated by our court in State ex rel. Scroggins v. Kellogg, 311 S.W.3d 293 (Mo.App. W.D.2010) ( Scroggins I ). In Scroggins I, Respondent amended Cornelius's judgment and sentence on July 1, 2009, seven years after the judgment and sentence was executed, directing Cornelius's two seven year sentences to run concurrently instead of consecutively. Id. at 295. Respondent claimed that Rule 29.05 provided him with the authority to “take further action” in Cornelius's case notwithstanding the final judgment and sentence. Rule 29.05 grants a trial court the “power to reduce the punishment within the statutory limits prescribed for the offense if it finds that the punishment is excessive.” In effect, Rule 29.05 permits a trial court to amend a sentence via its reduction.

We held that Rule 29.05 only authorizes a trial court to exercise the authority to reduce punishment imposed by a jury and even then, only between the time the court receives the jury's verdict and the time the sentencing court pronounces the judgment. Scroggins I, 311 S.W.3d at 296. We thus held that Respondent exceeded his authority in relying on Rule 29.05 to amend Cornelius's final sentence. Id. We made a preliminary writ of mandamus absolute and ordered Respondent to vacate the amended judgment. Id. at 298.

Following issuance of the mandate in Scroggins I, Cornelius's counsel filed a motion with Respondent seeking credit against the sentence Cornelius was serving for the time spent by Cornelius on probation. Cornelius claimed that Respondent had the authority to take this action with respect to his final sentence under Section 559.100.2. Respondent agreed and entered his Order affording Cornelius 852 days of credit against his final sentence for the time spent by Cornelius on probation from February 13, 2002, until probation was revoked on June 14, 2004.

Section 559.100.2 provides:

The circuit court shall have the power to revoke the probation or parole previously granted and commit the person to the department of corrections. The circuit court shall determine any conditions of probation or parole for the defendant that it deems necessary to ensure the successful completion of the probation or parole term, including the extension of any term of supervision for any person while on probation or parole. The circuit court may require that the defendant pay restitution for his crime. The probation or parole may be revoked for failure to pay restitution or for failure to conform his behavior to the conditions imposed by the circuit court. The circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence.

(Emphasis added.) Unlike Rule 29.05 which authorizes amendment of a sentence, section 559.100.2 merely permits credit against the service of the sentence, an act which does not alter or modify the underlying sentence. 5 Nonetheless, affording credit against a final sentence constitutes “taking further action” with respect

[335 S.W.3d 42]

to a final judgment and sentence, necessitating a statute or rule expressly authorizing such action. Ruddy, 582 S.W.2d at 695. Relator argues that section 559.100.2 does not provide this express authorization and merely permits a circuit court to afford credit for time spent on probation at the time sentence is executed as a result of a probation revocation. Respondent argues that the authority afforded a circuit court by section 559.100.2 is not subject to a temporal constraint and constitutes express authority to afford credit for time spent on probation at any time, even if the sentence is final.

We begin with the uncontested premise that Respondent's authority to take further action in Cornelius's case was exhausted once judgment and sentencing was entered in June 2004 following probation revocation. Scroggins I, 311 S.W.3d at 298; Ruddy, 582 S.W.2d at 695. We must determine, therefore, whether section 559.100.2 expressly authorized Respondent to take further action in Cornelius's case by affording credit for time spent on probation seven years after Respondent's authority over Cornelius's sentence was otherwise exhausted. Ruddy, 582 S.W.2d at 695. This is a question of first impression.

The primary rule of statutory construction is to ascertain the intent of the legislature by considering the plain and ordinary meaning of the words used in a statute. S. Metro. Fire Prot. Dist. v. City of Lee's Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). Here, the plain language of the final sentence of section 559.100.2 is not ambiguous. Affording the words employed by the legislature in that sentence their common meaning, it is apparent the legislature authorized circuit courts to credit sentences for time spent on probation. This authority, however, is not in dispute. The dispute in this case involves when a circuit court can exercise the authority to afford credit for time spent on probation. The final sentence of section 559.100.2 is silent on this subject. It does not expressly authorize a circuit court to take further action once a judgment and sentence have become final, nor does it expressly deprive a circuit court of the authority to do so. We must look beyond the plain language of the final sentence of section 559.100.2, therefore, to determine the legislature's intent.

When “determining the intent and meaning of statutory language, the words must be considered in context, and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words.” Bolen v. Orchard Farm R–V Sch. Dist., 291 S.W.3d 747, 751 (Mo.App. E.D.2009). The purpose of an entire act must be considered. Neske v. City of St. Louis, 218 S.W.3d 417, 424 (Mo. banc 2007).

Chapter 559 is entitled “Probation.” The chapter generally addresses terms, conditions, and durations of probation. Section 559.100.1 expressly empowers a circuit court to place on probation or parole a person convicted of any offense over which the court has jurisdiction, except as otherwise provided by statutes therein enumerated. The first sentence of section 559.100.2 expressly empowers a circuit court to revoke probation or parole previously granted and to commit a person to the department of corrections.

Section 559.100.2 continues, authorizing a circuit court to determine “any conditions of probation or parole ... that it deems necessary to ensure the successful completion of the probation or parole term,” including requiring a defendant to “pay restitution for his crime.” Section 559.100.2 then provides that “[t]he probation...

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4 practice notes
  • Langston v. Russell, Case No. 13-0638-CV-W-DW-P
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 15, 2013
    ...cognate sections, must be considered in order to arrive at the true meaning and scope of the words." State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo. App. W.D. 2011)(internal quotes and citation omitted). The purpose and policy of the entire act must be considered. Id. "When the l......
  • Ban v. State, No. ED 105897
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 2018
    ...and 217.703, Chapter 559 provides the terms, conditions, and durations of probation. 554 S.W.3d 545 State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo. App. W.D. 2011). Specifically, "Section 559.036 governs the duration of probation terms and the power of a court to revoke a defenda......
  • Langston v. Mo. Bd. of Prob. & Parole, No. WD 75401.
    • United States
    • Court of Appeal of Missouri (US)
    • January 29, 2013
    ...cognate sections, must be considered in order to arrive at the true meaning and scope of the words.” State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo.App. W.D.2011)(internal quotes and citation omitted). The purpose and policy of the entire act must be considered. Id. “When the lan......
  • Barnes v. Mo. Dep't of Corr., WD 77440
    • United States
    • Court of Appeal of Missouri (US)
    • April 21, 2015
    ...the offenses are related.” Donaldson v. Crawford, 230 S.W.3d 340, 343 n. 3 (Mo. banc 2007).4 See State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 43 (Mo.App.W.D.2011) (the authority granted a circuit court to afford credit for time spent on probation is “to be exercised, if at all, at the......
4 cases
  • Langston v. Russell, Case No. 13-0638-CV-W-DW-P
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 15, 2013
    ...cognate sections, must be considered in order to arrive at the true meaning and scope of the words." State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo. App. W.D. 2011)(internal quotes and citation omitted). The purpose and policy of the entire act must be considered. Id. "When the l......
  • Ban v. State, No. ED 105897
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 2018
    ...and 217.703, Chapter 559 provides the terms, conditions, and durations of probation. 554 S.W.3d 545 State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo. App. W.D. 2011). Specifically, "Section 559.036 governs the duration of probation terms and the power of a court to revoke a defenda......
  • Langston v. Mo. Bd. of Prob. & Parole, No. WD 75401.
    • United States
    • Court of Appeal of Missouri (US)
    • January 29, 2013
    ...cognate sections, must be considered in order to arrive at the true meaning and scope of the words.” State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 42 (Mo.App. W.D.2011)(internal quotes and citation omitted). The purpose and policy of the entire act must be considered. Id. “When the lan......
  • Barnes v. Mo. Dep't of Corr., WD 77440
    • United States
    • Court of Appeal of Missouri (US)
    • April 21, 2015
    ...the offenses are related.” Donaldson v. Crawford, 230 S.W.3d 340, 343 n. 3 (Mo. banc 2007).4 See State ex rel. Scroggins v. Kellogg, 335 S.W.3d 38, 43 (Mo.App.W.D.2011) (the authority granted a circuit court to afford credit for time spent on probation is “to be exercised, if at all, at the......

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