State ex rel. Stimel v. White

373 S.W.3d 481, 2012 WL 1202025, 2012 Mo. App. LEXIS 498
CourtMissouri Court of Appeals
DecidedApril 11, 2012
DocketNo. SD 31664
StatusPublished
Cited by13 cases

This text of 373 S.W.3d 481 (State ex rel. Stimel v. White) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Stimel v. White, 373 S.W.3d 481, 2012 WL 1202025, 2012 Mo. App. LEXIS 498 (Mo. Ct. App. 2012).

Opinion

ROBERT S. BARNEY, Judge.

We have previously issued a preliminary writ of prohibition which we now make permanent.

By his petition, Cory J. Stimel (“Relator”) seeks to prohibit Judge Ronald D. White (“Respondent”) from revoking his probation and prays for an order directing Respondent to dismiss revocation proceedings pending against him.1 Relator maintained in his petition, as he does now, that Respondent had no statutory authority to hold a revocation hearing because no formal revocation procedures were initiated prior to the expiration of Relator’s probation and Respondent failed to implement probation revocation proceedings within a reasonable time following the end of his probationary period, all contrary to section 559.036.2

On or about January 5, 2009, Relator pled guilty to “stealing” in the Phelps County Circuit Court before Respondent. As part of his plea agreement, Relator was “ordered to pay court costs;” was required to pay $10.00 “for the Crime Victim’s Compensation Fund;” was required to perform 80 hours of community service; received a suspended imposition of sentence; was placed on two years probation to be supervised by the private probation company O.C.C.S., Inc.; was required to pay $250.00 to the state public defender system; and was ordered to pay $422.00 in restitution, in addition to the standard provisions. The written waiver of guilty plea [483]*483form indicated a probation review would be conducted on March 6, 2009. On that date, a docket entry was made by Respondent indicating Relator was “in compliance” with his supervised probation; had paid his costs; and had paid his restitution. A probation review was then set for October 9, 2009.

On October 9, 2009, Respondent entered a docket entry indicating Relator was “in compliance” with his supervised probation; had paid his costs; and had paid his restitution. A probation review was then set for a year later on October 8, 2010. On October 8, 2010, Respondent entered a docket entry indicating Relator was “in compliance” with his supervised probation; had paid his costs; had paid his restitution; and had completed his community service. A probation review was then set for December 10, 2010.

On December 10, 2010, Respondent entered a docket entry again indicating Relator was “in compliance” with his supervised probation; had paid his costs; had paid his restitution; and had completed his community service. However, the docket entry went on to state that Relator’s probation was “suspended” and that a violation report was “filed on 12/9/10 for not reporting, not paying probation fees [and] not paying public defender fee.”3 A review was set for January 7, 2011.

Relator’s probationary period expired on January 5, 2011.

On January 7, 2011, Respondent held a review and again noted in the docket entry that Relator’s “[probation is suspended” and “violation filed on 12/9/10 for not reporting, not paying restitution [and] not paying public defender fees.” The record shows that on January 18, 2011, the State filed a “Motion to Revoke Probation” which alleged Relator “had violated the conditions of his probation by failing to report to his probation officer as directed, by willfully failing to [pay] restitution and by willingly failing to satisfy the lien of the State Public Defender.” The motion alleged that such “acts and omissions ... violated the express conditions of [Relator’s] probation” and the State requested Relator be ordered to appear to show “cause why his probation should not be revoked, sentence imposed and immediately executed.” Relator filed his Writ of Prohibition on October 27, 2011. A “PRELIMINARY ORDER IN PROHIBITION” was then issued by this Court on November 10, 2011, ordering Respondent to “to refrain from taking any further action ... unless or until this Court otherwise orders.”

Prohibition is a discretionary writ that lies to prevent abuse of judicial discretion, avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.4 State ex rel. Missouri Public Defender Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). A writ is not to serve as a remedy for all legal difficulties, nor is it a substitute for appeal, but it is an extraordinary remedy that should lie only in cases of extreme necessity. State ex rel. Lopp v. Munton, 67 S.W.3d 666, 670 (Mo.App.2002). “Prohibition will lie ... ‘to restrain the further enforcement of orders that are beyond or [484]*484in excess of the authority of the judge.’ ” State ex rel. Robinson v. Franklin, 48 S.W.3d 64, 67 (Mo.App.2001) (quoting State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148 (Mo.App.1974)). “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 880; see In re Smythe, 254 S.W.3d 895, 897 (Mo.App.2008). This Court’s review is limited to the record made in the court below. State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo.App.1997).

“A term of probation commences on the day it is imposed.” § 559.036.1. The authority “‘to revoke probation normally ends when the probationary period expires.’ ” State ex rel. Breeding v. Seay, 244 S.W.3d 791, 794 (Mo.App.2008) (quoting Stelljes v. State, 72 S.W.3d 196, 200 (Mo.App.2002)). Per section 559.036.3,

[i]f the defendant violates a condition of probation at any time prior to the expiration or termination of the probation term, the court may continue him on the existing conditions, with or without modifying or enlarging the conditions or extending the term, or, if such continuation, modification, enlargement or extension is not appropriate, may revoke probation and order that any sentence previously imposed be executed. If imposition of sentence was suspended, the court may revoke probation and impose any sentence available under section 557.011....

Section 559.036.6, dealing with the duration of probation, states that

[t]he 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.

See also State v. Roark, 877 S.W.2d 678, 680 (Mo.App.1994).

Here, Relator’s probation expired on January 5, 2011.

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373 S.W.3d 481, 2012 WL 1202025, 2012 Mo. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-stimel-v-white-moctapp-2012.