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Missouri Supreme Court Issues Writ of Prohibition Prohibiting Circuit Court From Revoking Probation After Probation Term Had Already Expired

by Douglas Ankney

On December 11, 2014, the circuit court sentenced Travis Jones to 10 years in prison following his guilty plea to one count of felonious restraint. The circuit court suspended execution of that sentence and placed Jones on probation for five years. Beginning from January 2015 until his arrest on unrelated charges in August 2017, six probation violation reports had been filed against Jones, including two in August 2017.

Based on the August 2017 reports, the prosecutor filed a motion to revoke probation. The circuit court set a hearing for September 28, 2017, issued a capias for Jones’ arrest, and appointed counsel. But neither a habeas corpus ad testificandum nor ad prosequendum were issued to bring Jones to court for the hearing. Since Jones was in jail, he did not appear, and the court’s docket entry merely stated: “Deft. fails to appear — warrant already in place.” The division of probation and parole informed the circuit court that through earned compliance credits (“ECCs”), Jones would be eligible for release from probation on December 20, 2017. (ECCs are 30 days of credit for every calendar month a probationer does not have a probation violation report filed against him, and the credits are subtracted from the initial probation release date. R.S.Mo. § 217.703.3 and .4.)

In June 2018, after Jones contacted the circuit court seeking discharge from probation, the circuit court finally issued a writ of habeas corpus ad prosequendum, which brought Jones to Taney County to attend a revocation hearing. But Jones’ counsel moved to have him discharged from probation, arguing the circuit court had no authority to revoke his probation because the term of probation had expired due to the accumulation of the ECCs. When the circuit court scheduled a revocation hearing anyway, Jones filed a petition for writ of prohibition or mandamus in the court of appeals and then in the Supreme Court. The Supreme Court issued a preliminary writ, which was then made permanent for the following reasons.

An appellate court issues a writ of prohibition to (1) prevent 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 (Mo. 2017). Writ relief is appropriate if the circuit court has lost authority to conduct a probation revocation hearing. State ex rel. Amorine v. Parker, 490 S.W.3d 372 (Mo. 2016). Once the division of probation and parole has calculated the ECC release date of the offender, the circuit court shall order final discharge of the offender on that date. R.S.Mo. § 217.703.7. Once the ECC date is reached, the circuit court may revoke probation only if the court (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. State ex rel. Strauser v. Martinez, 416 S.W.3d 798 (Mo. 2014). A reasonable effort would include issuing a writ of habeas corpus ad prosequendum to have a prisoner brought before the court to attend the hearing. State ex rel. Zimmerman v. Dolan, 514 S.W.3d 603 (Mo. 2017).

The Supreme Court observed that the circuit court manifested its intent to conduct a revocation hearing in September—before the probation term expired—but then made no reasonable effort to have Jones brought to the hearing. Instead, the circuit court waited until more than six months after Jones’ ECC discharge date before issuing the writ of habeas corpus ad prosequendum. Accordingly, the Supreme Court made its preliminary writ of prohibition permanent and ordered the circuit court to discharge Jones from probation. See: State ex rel. Jones v. Eighmy, 2019 Mo. LEXIS 177 (2019). 

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