State ex rel. Jones v. Eighmy, SC 97417

• Decision Date: 30 April 2019
• Docket Number: No. SC 97417,SC 97417
• Citation: 572 S.W.3d 503
• Parties: STATE EX REL. Travis JONES, Relator, v. The Honorable Eric EIGHMY, Respondent.
• Court: Missouri Supreme Court

572 S.W.3d 503

STATE EX REL. Travis JONES, Relator,

v.The Honorable Eric EIGHMY, Respondent.

No. SC 97417

Supreme Court of Missouri, en banc.

Opinion issued April 30, 2019

Jones was represented by James Egan of the public defender’s office in Columbia, (573) 777-9977.

The state was represented by Thomas Kondro, Jeff Merrell and Shane Mora of the Taney County prosecutor’s office in Forsyth, (417) 546-7260.

Laura Denvir Stith, Judge

Travis Jones seeks a writ prohibiting the circuit court from holding a probation revocation hearing. He contends the circuit court failed to make every reasonable effort to hold his probation revocation hearing prior to the expiration of his term of probation and has lost authority to do anything other than order his discharge from probation. This Court agrees. While the circuit court gave timely notice of an intent to hold a probation revocation hearing and scheduled the hearing for a date within the term of probation, it failed to make every reasonable effort to bring Mr. Jones before the court before the term expired.

Aware that he was being held in jail in a nearby county, neither the court nor the prosecutor made any attempt to bring Mr. Jones before the court by issuing a writ of habeas corpus ad testificandum or ad prosequendum as it did some nine months later after his probationary term already had expired. Accordingly, it has lost the power to revoke his probation. The writ is made permanent, and the circuit court is ordered to discharge Mr. Jones from probation.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2014, Mr. Jones pleaded guilty to one count of felonious restraint. On December 11, 2014, the circuit court sentenced him to ten years in prison but suspended execution of his sentence and placed him on five years' probation, which meant his initial date for release from probation was December 10, 2019.

An offender’s release date can be shortened by the accumulation of earned compliance credits (ECCs). The division of probation and parole’s award of ECCs reduces the probationary term "by thirty days for each full calendar month of compliance with the terms of supervision." § 217.703.3.¹ An offender is deemed to be in compliance in any calendar month in which there is not "an initial violation report submitted by a probation or parole officer ... or a motion to revoke or motion to suspend filed by a prosecuting or circuit attorney, against the offender." § 217.703.4 ; State ex rel. Coleman v. Horn, 568 S.W.3d 14, 19 (Mo. banc 2019), quoting, State ex rel. Parrott v. Martinez , 496 S.W.3d 563, 569 (Mo. App. 2016) ("Compliance ‘is not defined as the strict fulfillment of each and every term of probation in a given month but is defined as the absence of an initial violation report or a motion to revoke or suspend.’ ").² "At least twice a year, the division shall calculate the number of months the offender has remaining on his or her term of probation, parole, or conditional release, taking into consideration any earned compliance credits, and notify the offender of the length of the remaining term."§ 217.703.9. Based on this calculation, probation and parole informs the offender and the court of the offender’s earned discharge date, which is the date under existing circumstances by which the offender has earned release from supervision even if he or she does not accrue any more months of ECCs. Id.; see Ban v. State, 554 S.W.3d 541, 547 (Mo. App. 2018).

Mr. Jones was first eligible to earn ECCs under section 217.703.3 in February 2015. Throughout 2015 and the beginning of 2016, Mr. Jones accrued ECCs in all but the three months in which probation violation reports were filed – February 2015, April 2015, and June 2016. In July 2016, after his third probation violation report was filed, prosecutors filed a motion to revoke his probation. The court held a probation revocation hearing and decided to continue Mr. Jones on probation but ordered him to complete 120 days of "shock time" in the Taney County jail.

Thereafter, Mr. Jones continued to serve his probation and continued earning ECCs until June 2017, when a new probation violation report was filed. Finally, in August 2017, Mr. Jones received two additional probation violation reports. The August 2017 violation reports state Mr. Jones violated his probation by committing unrelated charges and was being held in jail in neighboring Barry County. They set out Mr. Jones' calculated earned discharge date as December 20, 2017.³

Based on the August 2017 probation violation reports, the prosecutor filed a new motion to revoke probation. The circuit court set a hearing on the motion for September 28, 2017, issued a capias warrant for Mr. Jones' arrest, and appointed counsel. But the prosecutor did not seek, and the circuit court did not issue, a writ of habeas corpus ad testificandum or ad prosequendum or, so far as the record shows, make any other attempt to bring Mr. Jones before the court for the hearing. As Mr. Jones was incarcerated in the Barry County jail at the time of the hearing, he did not appear. The court made a docket entry on September 28, 2017, stating: "Deft fails to appear – warrant already in place."

Despite Mr. Jones' earned discharge date of December 20, 2017, clearly calculated by probation and parole and set out in the record before the court, no action was taken for the next nine months. Notably, the court did not set another hearing prior to Mr. Jones' discharge date nor direct the prosecutor to locate Mr. Jones despite the record stating he was being held in Barry County jail. Matters remained unresolved until finally, in June 2018, Mr. Jones decided to contact the circuit court himself and ask it to revoke his probation and give him credit for time served, resulting in his release. After receiving this motion, the prosecutor finally requested, and the circuit court issued, a writ of habeas corpus ad prosequendum, which brought Mr. Jones to Taney County so he could attend a finally scheduled probation revocation hearing.

Appointed counsel for Mr. Jones then filed a motion for discharge from probation, arguing the circuit court had no authority to revoke his probation as the probationary term had already expired due to the accrued ECCs. When the circuit court nonetheless scheduled a probation revocation hearing, Mr. Jones filed a petition for a writ of prohibition or mandamus with the court of appeals and then with this Court. This Court issued its preliminary writ, which it now makes permanent.

II. STANDARD OF REVIEW

An appellate court will issue a writ of prohibition to "(1) prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or when (3) a party may suffer irreparable harm if relief is not granted." State ex rel. Merrell v. Carter , 518 S.W.3d 798, 799 (Mo. banc 2017) (internal quotation omitted). Writ relief is appropriate if a circuit court has lost authority to conduct a probation revocation hearing. Amorine, 490 S.W.3d at 376 . The probationer "bears the burden of demonstrating the circuit court failed to make every reasonable effort to conduct the probation revocation hearing prior to the expiration of the probationary period." State ex rel. Zimmerman v. Dolan, 514 S.W.3d 603, 608 (Mo. banc 2017) .

III. THE CIRCUIT COURT DID NOT MAKE EVERY REASONABLE EFFORT TO CONDUCT A PROBATION VIOLATION HEARING BEFORE MR. JONES' EARNED DISCHARGE DATE

Mr. Jones contends that he is entitled to a writ prohibiting the circuit court from conducting a probation violation hearing because no such hearing was held before his earned discharge date and the circuit court failed to make every reasonable effort to conduct a probation violation hearing before that date.

The requirements for the award of ECCs are not discretionary. Section 217.703.3 provides, "Credits shall begin to accrue for eligible offenders after the first full calendar month of supervision" in which the offender is in compliance (emphasis added). Any month in which individuals are not in compliance, credits do not accrue, but "[i]f no hearing is held ... then the offender shall be deemed to be in compliance and shall begin earning credits on the first day of the next calendar month." § 217.703.5.

It is probation and parole’s duty to calculate earned discharge dates based on subtracting ECCs from the date the offender’s probation otherwise would end. "[O]nce the combination of time served in custody, if applicable, time served on probation, parole, or conditional release, and earned compliance credits satisfy the total term of probation, parole, or conditional release, the board or sentencing court shall order final discharge of the offender." § 217.703.7 (emphasis added).

Mr. Jones' earned discharge date was December 20, 2017. At that point, pursuant to section 559.036.8, the circuit court lost its authority to revoke his probation unless it complied with the notice and hearing requirements of section 559.036.8, which provides:

The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.

(Emphasis added). In other words, once the earned compliance date is reached, the court loses power to revoke probation unless the court both (1) manifested its intent to conduct a revocation hearing before the probation term ended and (2) then made "every reasonable effort" to notify the probationer and conduct the hearing before the term ended. Id. ; State ex rel. Strauser v. Martinez...