State v. Mennemeyer, No. ED 100826.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLAWRENCE E. MOONEY
Citation421 S.W.3d 558
PartiesSTATE of Missouri ex rel. Ernest KIZER, Relator, v. Honorable Chris Kunza MENNEMEYER, Judge of the Circuit Court of Lincoln County, Missouri, Respondent.
Decision Date25 February 2014
Docket NumberNo. ED 100826.

421 S.W.3d 558

STATE of Missouri ex rel. Ernest KIZER, Relator,
v.
Honorable Chris Kunza MENNEMEYER, Judge of the Circuit Court of Lincoln County, Missouri, Respondent.

No. ED 100826.

Missouri Court of Appeals,
Eastern District,
Writ Division Two.

Feb. 25, 2014.



George M. Archer, St. Louis, MO, for relator.

[421 S.W.3d 559]

Leah Wommack Askey, Troy, MO, for respondent.


LAWRENCE E. MOONEY, Presiding Judge.

The relator, Ernest Kizer, seeks a writ of mandamus and a writ of prohibition directing the respondent, the Honorable Chris Kunza Mennemeyer, to order that Kizer be released from the Missouri Department of Corrections and placed on probation and prohibiting the respondent from executing Kizer's sentence, respectively. We issued a preliminary order in mandamus. The respondent has filed an answer, and admitted all allegations in Kizer's petition. We dispense with further briefing in the interests of justice as permitted by Rule 84.24(j). We now make our preliminary order permanent, and direct the respondent to release Kizer on probation as provided in Section 559.115.3 RSMo (Supp.2012).1

Kizer pleaded guilty to one count of second-degree drug trafficking. On April 24, 2013, the trial court sentenced Kizer to eight years' imprisonment in the Department of Corrections. The trial court further ordered Kizer's sentence be served pursuant to the institutional drug and alcohol treatment provisions of section 559.115. Within the first 120 days of Kizer's sentence, the Department of Corrections reported that Kizer successfully completed the institutional treatment program. On July 17, 2013, the trial court denied Kizer's release on probation, and ordered his sentence of eight years to be executed. The trial court did not conduct a hearing before taking this action, or at any time thereafter.

Mandamus is a discretionary writ that is appropriate when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal. State ex rel. Dorsey v. Wilson, 263 S.W.3d 790, 791 (Mo.App.E.D.2008). A litigant seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed. State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012). “Ordinarily, mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers.” Id. However, if the respondent's actions are wrong as a matter of law, then she has abused any discretion she may have had, and mandamus is...

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9 practice notes
  • Banks v. Slay, No. 4:13CV02158 ERW.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 25, 2014
    ...seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed.” State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo.App.E.D.2014).9 As in Missouri, in Mississippi, mandamus relief requires “a clear right in the petitioner to the relief sought.” Aldrid......
  • Banks v. Slay, No. 4:13CV02158 ERW.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 25, 2014
    ...seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed.” State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo.App.E.D.2014). 9. As in Missouri, in Mississippi, mandamus relief requires “a clear right in the petitioner to the relief sought.” Aldr......
  • State ex rel. Young v. Elliott, WD 82335
    • United States
    • Court of Appeal of Missouri (US)
    • December 18, 2018
    ...(Mo. banc 2012) ; State ex rel. Lovelace v. Mennemeyer , 421 S.W.3d 555, 557 (Mo. App. E.D. 2014) ; State ex rel. Kizer v. Mennemeyer , 421 S.W.3d 558 (Mo. App. E.D. 2014) ; State ex rel. Norwood v. Sheffield , 380 S.W.3d 666, 668 (Mo. App. S.D. 2012) ; State ex rel. Dorsey v. Wilson , 263 ......
  • State ex rel. Cullen v. Cardona, No. ED 107388
    • United States
    • Missouri Court of Appeals
    • January 29, 2019
    ...when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal." State ex rel. Kizer v. Mennemeyer , 421 S.W.3d 558, 559 (Mo. App. E.D. 2014). "Ordinarily mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control t......
  • Request a trial to view additional results
9 cases
  • Banks v. Slay, No. 4:13CV02158 ERW.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 25, 2014
    ...seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed.” State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo.App.E.D.2014).9 As in Missouri, in Mississippi, mandamus relief requires “a clear right in the petitioner to the relief sought.” Aldrid......
  • Banks v. Slay, No. 4:13CV02158 ERW.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 25, 2014
    ...seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed.” State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo.App.E.D.2014). 9. As in Missouri, in Mississippi, mandamus relief requires “a clear right in the petitioner to the relief sought.” Aldr......
  • State ex rel. Young v. Elliott, WD 82335
    • United States
    • Court of Appeal of Missouri (US)
    • December 18, 2018
    ...(Mo. banc 2012) ; State ex rel. Lovelace v. Mennemeyer , 421 S.W.3d 555, 557 (Mo. App. E.D. 2014) ; State ex rel. Kizer v. Mennemeyer , 421 S.W.3d 558 (Mo. App. E.D. 2014) ; State ex rel. Norwood v. Sheffield , 380 S.W.3d 666, 668 (Mo. App. S.D. 2012) ; State ex rel. Dorsey v. Wilson , 263 ......
  • State ex rel. Cullen v. Cardona, No. ED 107388
    • United States
    • Missouri Court of Appeals
    • January 29, 2019
    ...when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal." State ex rel. Kizer v. Mennemeyer , 421 S.W.3d 558, 559 (Mo. App. E.D. 2014). "Ordinarily mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control t......
  • Request a trial to view additional results

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