State ex rel. Young v. Elliott, WD 82335

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary D. Witt, Judge
Citation565 S.W.3d 711
Parties STATE EX REL. John Jason YOUNG, Relator, v. The Honorable R. Brent ELLIOTT, Respondent.
Decision Date18 December 2018
Docket NumberWD 82335

565 S.W.3d 711

STATE EX REL. John Jason YOUNG, Relator,
v.
The Honorable R. Brent ELLIOTT, Respondent.

WD 82335

Missouri Court of Appeals, Western District.

OPINION FILED: December 18, 2018


Brandon F. Greer, Chillicothe, MO, for Relator.

Adam L. Warren, Chillicothe, MO, for Respondent.

Before Writ Division: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Mark D. Pfeiffer, Judge

Gary D. Witt, Judge

Relator John Jason Young was convicted of felony driving while intoxicated in the Circuit Court of Livingston County. Young was sentenced to four years' imprisonment, and was ordered to participate in a 120-day institutional treatment program pursuant to § 559.115.3.1 Although the Department of Corrections reported to the circuit court that Young would2 successfully complete the 120-day program, the court denied Young release on probation. Young filed a Petition for Writ of Mandamus in this Court, contending that the circuit court lacked authority to deny him probation, since it failed to hold a hearing on the matter within 120 days of Young's delivery to the Department of Corrections.

Young's petition has merit. We issue a permanent writ in mandamus directing the circuit court to rescind its order denying Young release on probation, and to enter an order releasing him on probation on appropriate conditions.

Factual Background

On July 10, 2018, Young pled guilty in the Circuit Court of Livingston County to the offense of E Felony Driving While Intoxicated pursuant to § 577.010. The circuit court sentenced Young to four years' imprisonment, but ordered that he participate in an institutional treatment program pursuant to § 559.115.3.

Young was delivered to the Department of Corrections on July 19, 2018, and placed

565 S.W.3d 713

in an institutional treatment program. On October 15, 2018, the Department's Board of Probation and Parole submitted a report to the circuit court concerning Young's participation in the institutional treatment program. The report indicated that Young's "institutional adjustment is [sic] exceeds expectations," and had "received no Conduct Violations." The report stated that Young's compliance "exceeds expectations" and he was "an asset and a very strong member of the community," and "Young has shown above satisfactory progress through the ITC Program, receiving an exceeds expectations critique from Treatment Staff." Young was "on track to complete the program as ordered by the court" and his release was recommended. The report stated that "[t]his is the NOTICE OF STATUTORY DISCHARGE," and that, "Young's 120th day and Program Completion Date are both 11-16-18."

The Department's report was filed on October 15, 2018, and on October 16, 2018, the circuit court entered an order denying Young release on probation. The order states that "[t]he above named defendant/offender has completed the 120 day program pursuant to 559.115 RSMo," but that "[t]he Court has determined it would be an abuse of discretion to release and orders the execution of the sentence of ______ years."3 Neither the court's order, nor the docket sheet, indicate that the circuit court held a hearing before rejecting the Department of Corrections' recommendation, and denying Young release on probation. Similarly, the suggestions in opposition to the writ petition which were filed on Respondent’s behalf do not contend that a hearing was in fact held before the court denied Young probation.

On December 3, 2018, Young filed a Petition for Writ of Mandamus or in the Alternative a Writ of Prohibition in this Court, contending that the circuit court lacked authority to deny him release on probation, because the court had failed to hold a hearing within 120 days of his delivery to the Department of Corrections. Respondent filed Suggestions in Opposition to Young’s writ petition on December 8, 2018. We now issue our permanent writ of mandamus, ordering Young's release.4

Discussion5

Section 559.115.3, as amended effective January 1, 2017, provides:

The court may recommend placement of an offender in a department of corrections one hundred twenty-day program under this subsection or order such
565 S.W.3d 714
placement under subsection 4 of section 559.036. Upon the recommendation or order of the court, the department of corrections shall assess each offender to determine the appropriate one hundred twenty-day program in which to place the offender, which may include placement in the shock incarceration program or institutional treatment program. When the court recommends and receives placement of an offender in a department of corrections one hundred twenty-day program, the offender shall be released on probation if the department of corrections determines that the offender has successfully completed the program except as follows. Upon successful completion of a program under this subsection, the board of probation and parole shall advise the sentencing court of an offender's probationary release date thirty days prior to release. The court shall
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