State ex rel. Fletcher v. Cole

• Decision Date: 22 December 2021
• Docket Number: No. SD 37209,SD 37209
• Citation: 636 S.W.3d 925
• Parties: STATE of Missouri EX REL. Brian Glenn FLETCHER, Relator, v. The Honorable David COLE, Respondent.
• Court: Missouri Court of Appeals

636 S.W.3d 925

STATE of Missouri EX REL. Brian Glenn FLETCHER, Relator,

v.The Honorable David COLE, Respondent.

No. SD 37209

Missouri Court of Appeals, Southern District, Division Two.

Filed: December 22, 2021

MATTHEW PALMER, Columbia, Mo, for Relator.

STEVEN J. DUNKER, Aurora, Mo, Assistant Prosecuting Attorney.

DAVID ALLEN COLE, Cassville, Mo, Respondent acting pro se.

DON E. BURRELL, J.

PRELIMINARY WRIT IN PROHIBITION QUASHED

Brian Glenn Fletcher ("Relator") filed a petition in prohibition to prevent the Honorable David Cole ("Respondent") from proceeding with a probation revocation hearing on the ground that Relator's probation had expired before his alleged violations occurred. Finding no merit in that claim, we quash our preliminary writ.

Standard of Review

An appellate court can issue a writ of prohibition "to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended...." State ex rel. Missouri Public Defender Commission v. Pratte , 298 S.W.3d 870, 880 (Mo. banc 2009) ; see State ex rel. Whittenhall v. Conklin , 294 S.W.3d 106, 108 (Mo. App. S.D. 2009). Thus, writ relief lies when a trial court lacks the authority to conduct a probation revocation hearing after the term of probation has expired. See State ex rel. Stimel v. White , 373 S.W.3d 481, 485 (Mo. App. S.D. 2012). "Whether a trial court has exceeded its authority is a question of law, which an appellate court reviews independently of the trial court." Pratte , 298 S.W.3d at 881.

State ex rel. Dotson v. Holden , 416 S.W.3d 821, 823 (Mo. App. S.D. 2013).

Analysis

In May 2013, Relator received a suspended imposition of sentence ("SIS") for the felony offense of failing to pay child support and was placed on a five-year term of probation ("SIS probation"). One year and three months later, on August 11, 2014, Relator's SIS was revoked for non-payment violations, and the trial court imposed a 4-year sentence, suspended the execution of that sentence, and placed Relator on a new five-year term of probation ("SES probation").

In July 2019, facing a motion to revoke his probation for substantial arrearages in his child support payments that could have resulted in the execution of his suspended sentence, Relator agreed to a 1-year extension of his SES probation. In December 2019, the sentencing court received a motion to revoke Relator's probation due to his alleged failure to pay child support from August through November 2019. Relator then filed his petition for this extraordinary writ.

Relator's sole point claims that

Respondent exceeded his authority and jurisdiction in acting on an untimely motion to revoke Relator's probation, because Respondent had no authority or jurisdiction to hear the matter, in that the State's motion to revoke probation was not filed until after Relator's probation expired and was based on conduct occurring after Relator's probation expired.

We disagree.

Section 559.016.1(1) authorizes the imposition of a one to five-year period of probation for a felony offense.¹ In addition,

[t]he court may extend a period of probation, however, no more than one extension of any probation may be ordered except that the court may extend the total time on probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of his or her probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section plus one additional year if the defendant admits or the court finds that the defendant has violated the conditions of his or her probation .

Section 559.016.3 (emphasis added). See also section 559.036.2, RSMo Cum. Supp. 2012² (stating that the total time on any probation term shall not exceed the maximum term established in section 559.016).

Relator argues that Respondent no longer has statutory authority to conduct a revocation hearing because Relator's probationary period expired, at the latest, on August 11, 2019 – five years from the date on which Relator was placed on SES probation.

Relator's argument is misplaced for several reasons, the first being that it fails to distinguish between a probationary period for a SIS and a probationary term that is granted after a sentence has been imposed.

If an imposition of sentence is suspended, [the] defendant is placed on probation, that probation is subsequently revoked, a sentence not previously imposed is imposed, execution of that sentence is suspended, and a new term of probation is entered, the new probationary period entered is not an extension of the original probation. See State ex rel. Light v. Sheffield , 768 S.W.2d 590, 592–93 (Mo. App. S.D. 1989) ; State ex rel. Connett v. Dickerson , 833 S.W.2d 471, 475 (Mo. App. S.D. 1992). The court in Light distinguishes a suspended imposition of sentence from a suspended execution of an imposed sentence, stating "Suspension of imposition of sentence is an entirely different matter from imposing sentence and then suspending execution of it. In the first instance, the person has no criminal conviction, in the second, he does." 768 S.W.2d at 592.

Roach v. State , 64 S.W.3d 884, 887 (Mo. App. S.D. 2002).

Relator had no criminal conviction during the time that he was on SIS probation from the beginning of May 2013 through August 11, 2014, when his SIS probation was revoked and the trial court imposed a 4-year sentence. When the trial court then suspended the execution of that sentence and placed Relator on a new five-year term of probation, that new SES probation period was not an extension of the original SIS probation. Light , 768 S.W.2d at 592-93.

Relator's argument also fails to recognize that the applicable statutes allow for a one-year extension of a five-year probation term for a felony.³ "Section 559.016.3 is unambiguous that ‘[t]otal time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section [five years] plus one additional year.’ " Starry v. State , 318 S.W.3d 780, 784 (Mo. App. W.D. 2010) (internal citation omitted). See also State ex rel. Hillman v. Beger , 566 S.W.3d 600, 604 n.6 (Mo. banc 2019) (explaining that SES probation is not an extension of SIS probation but rather "is an entirely new sentence" for which the maximum term of probation is five years, plus a one-year extension). If violations occur, the circuit court has power to revoke a defendant's probation throughout the duration of his term of probation. State ex rel. Zimmerman v. Dolan , 514 S.W.3d 603, 608 (Mo. banc 2017).

Once Relator was convicted and a sentence was imposed, his authorized probation term was limited to...