Stelljes v. State

• Decision Date: 29 March 2002
• Docket Number: No. WD 59622.,WD 59622.
• Citation: 72 S.W.3d 196
• Parties: James STELLJES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

72 S.W.3d 196

James STELLJES, Appellant, v. STATE of Missouri, Respondent.

No. WD 59622.

Missouri Court of Appeals, Western District, Division Three.

March 29, 2002.

Rosalynn Koch, Columbia, for Appellant.

Richard A. Starnes, Assistant Attorney General, Jefferson City, for Respondent.

Before BRECKENRIDGE, P.J., NEWTON and HARDWICK, JJ.

PATRICIA BRECKENRIDGE, Judge.

James Stelljes appeals the denial of his 24.035 motion for post-conviction relief without an evidentiary hearing. Mr. Stelljes pleaded guilty to second degree burglary, § 569.170, RSMo 2000,¹ and the court sentenced him to three years imprisonment but suspended the sentence and placed him on probation for three years. Subsequently, Mr. Stelljes pleaded guilty to felony child abuse, § 568.060, and the court sentenced him to five years imprisonment but suspended the sentence and placed Mr. Stelljes on probation for five years. After the probationary periods expired, the trial court revoked Mr. Stelljes' probation in both cases. On appeal, Mr. Stelljes alleges that the trial court did not have jurisdiction to revoke his probations because his probationary periods had ended. This court finds that the trial court did not have jurisdiction to revoke Mr. Stelljes' probation with respect to the second degree burglary case. With respect to the felony child abuse case, this court finds that the State affirmatively manifested its intention to revoke Mr. Stelljes' probation and made a reasonable effort to hold a revocation hearing before the probationary period expired. Therefore, the trial court retained jurisdiction under § 559.036.6 to revoke his probation.

The judgment of the motion court is reversed and the cause remanded, in part, and the judgment is affirmed, in part.

Factual and Procedural Background

On June 9, 1993, Mr. Stelljes pleaded guilty to second degree burglary in Macon County. The trial court sentenced him to three years imprisonment but suspended that sentence. The trial court then placed Mr. Stelljes on probation for three years. On February 9, 1994, Mr. Stelljes pleaded guilty to felony child abuse in Macon County. The trial court sentenced him to five years imprisonment but suspended that sentence, placing Mr. Stelljes on probation for five years.

On May 13, 1996, the Macon County Circuit Court entered an order for Mr. Stelljes to appear on June 26, 1996, to explain why he was not paying his court costs in both the burglary and child abuse cases. After Mr. Stelljes failed to appear, the court rescheduled that hearing on July 10, 1996. Mr. Stelljes again failed to appear and, on July 11, 1996, the Court issued a capias warrant in the burglary and child abuse cases. On July, 17, 1996, the Court suspended Mr. Stelljes' probations until he was in custody.

This capias warrant was not served on Mr. Stelljes until January 10, 1997, because sometime near the end of 1995 or the beginning of 1996, Mr. Stelljes moved to the state of Washington. While in Washington, Mr. Stelljes committed and was convicted of felony child molestation. A Washington state court sentenced Mr. Stelljes to 46.5 months imprisonment. On June 26, 1996, the State of Washington took custody of Mr. Stelljes. On January 16, 1997, a sheriff's deputy returned the capias warrant issued on July 11, 1996, indicating that the warrant was served "in the County of Yakima in state of Washington by fax" on January 10, 1997.

On February 5, 1998, the Macon County Circuit Clerk was authorized to send certified records of both cases to the State of Washington. On February 25, 1998, the trial court issued a new capias warrant in the burglary and child abuse cases. On February 27, 1998, the clerk mailed certified copies of docket sheets, the information/complaint and a certified copy of the capias warrant in the burglary case to the Washington State Reformatory. The docket sheet in the child abuse case does not contain any entries between February 5, 1998, and August 30, 1999. On August 30, 1999, the sheriff returned the capias warrant dated February 25, 1998, relating to both the burglary and child abuse cases, showing personal service on August 28, 1998. In September of 1999, Mr. Stelljes was released from prison in Washington. Subsequently, he waived extradition and returned to Missouri.

On September 29, 1999, Mr. Stelljes appeared in the Macon County Circuit Court and was referred to the public defender's office. On that same date, the State filed a motion to revoke probation in both the burglary and the child abuse cases.

On October 13, 1999, the trial court held a probation revocation hearing. Mr. Stelljes testified at this hearing. The court revoked Mr. Stelljes' probation in both the second degree burglary case and the felony child abuse case. The trial court had two reasons for revoking Mr. Stelljes' probation. First, he was not paying his court costs. Second, Mr. Stelljes violated his probation by moving to Washington without permission, and, while in Washington, he pleaded guilty to a crime.

Mr. Stelljes filed a timely motion to vacate, set aside, or correct the judgments or sentences under Rule 24.035. Mr. Stelljes claimed that the trial court lacked jurisdiction to revoke his probations because his probationary periods had expired. There was no hearing on that motion, and the court issued findings of fact and conclusions of law denying Mr. Stelljes' motion. This appeal followed.

Lack of Jurisdiction to Revoke Probation Cognizable under Rule 24.035

The State alleges that Mr. Stelljes' claims that the motion court lost jurisdiction to revoke his probations were not cognizable in a Rule 24.035 proceeding. The State contends that the sole remedy for a challenge to an order revoking probation is a writ of habeas corpus. In support of this proposition, the State cites Teter v. State, 893 S.W.2d 405 (Mo.App.1995), and Wood v. State, 853 S.W.2d 369 (Mo.App. 1993). Neither Teter nor Wood are factually similar to Mr. Stelljes' case, however. Both Mr. Teter and Mr. Wood were attempting to assert that they received ineffective assistance of counsel at a probation revocation hearing. Teter, 893 S.W.2d at 405-06; Wood, 853 S.W.2d at 370. In both of those cases, the court held that a Rule 24.035 proceeding was not the proper procedure to challenge the effectiveness of counsel at a probation revocation hearing. Teter, 893 S.W.2d at 406; Wood, 853 S.W.2d at 370.

A case that is more factually similar to the instant case is Williams v. State, 927 S.W.2d 903 (Mo.App.1996). In Williams, the court held that Rule 24.035 permits an attack on the jurisdiction of the court to order that a sentence be executed. Id. at 907 n. 4. The Williams court considered the merits of a claim that the trial court lacked jurisdiction to revoke probation because the probationary term ended. Id. at 906. Similarly, in Wesbecher v. State, 863 S.W.2d 2, 4-5 (Mo.App.1993), the court addressed the merits of a claim, brought pursuant to Rule 24.035, that the trial court lacked jurisdiction to revoke probation after the probationary period ended.

Here, Mr. Stelljes is challenging the trial court's jurisdiction to revoke his probation. He is alleging that the trial court lacked jurisdiction to execute his sentence because his probationary periods ended. Under the holdings of Williams and Wesbecher, Mr. Stelljes' claims could be properly brought in a Rule 24.035 proceeding.

Escape Rule Does Not Apply to Post-Capture Errors

The State claims that, because Mr. Stelljes absconded to Washington before the expiration of his probationary terms, this court should utilize the escape rule to dismiss Mr. Stelljes' claims. The escape rule operates to deny a defendant the right to seek post-conviction relief. State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). The escape rule does not apply to post-capture errors, however. Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993). When the trial court's alleged revocation of probation does not occur until a defendant has been returned to custody, the escape rule has been held to be inapplicable. Wesbecher, 863 S.W.2d at 5. Here, the trial court did not revoke Mr. Stelljes' probations until he was in custody in Missouri, so any alleged errors in the trial court's judgment revoking probation were post-capture errors. Therefore, following Robinson and Wesbecher, the escape rule does not apply.

Standard of Review

In reviewing a denial of a motion for post-conviction relief, this court is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Such a finding will be made only if, after a review of the entire record, the appellate court is left with a "definite and firm impression that a mistake has been made." Id.

Probation on Burglary Conviction Ended Prior to Manifestation of Intent to Revoke

In his first point, Mr. Stelljes alleges that the trial court lacked jurisdiction to revoke his probation in the burglary case because his probationary term expired, and the term was not extended by operation of law.

Jurisdiction to revoke probation normally ends when the probationary period expires. Williams, 927 S.W.2d at 905. "A term of probation commences on the day it is imposed." Section 559.036.1. Here, the trial court imposed a term of three years probation in the burglary case on June 9, 1993. Therefore, the trial court would ordinarily have lost jurisdiction to revoke Mr. Stelljes' probation in the burglary case on June 9, 1996. Section 559.036.6 provides for the extension of the court's authority to revoke probation past the date probation expires, however, if certain actions are taken prior to the expiration date. Section 559.036.6 states:

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...