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By stan_sipple

Missouri Court of Appeals Southern District prohibits holding probation revocation when court continued the defendant's probation revocation several times past the original term of his probation while the defendant had completed restitution but had been charged with a new offense. State of Missouri, ex rel., Joshua A. Breeding, Relator, v. Honorable William Camm Seay, Respondent Case Number: 28696 Handdown Date: 02/08/2008 Appeal From: Original Proceeding in Prohibition
(The trial judge) acted unreasonably in waiting until May 7, 2007, to set the date for the hearing on the first motion to revoke probation which had been filed on July 5, 2005. (The court put the defendant on probation in April 2003). See Saunders v. Bowersox, 179 S.W.3d 288, 292 (Mo.App. 2005) at 292. Based on the record before us and the briefs of the parties, we discern Respondent could have held a probation revocation hearing a year earlier when the docket sheet indicates a "Case Review" was held or about a month later when the court passed the matter for disposition. While it was defendant?s burden to show he was prejudiced by the judge?s tardiness in setting a probation revocation hearing, Ewing v. Wyrick, 535 S.W.2d 442, 445 (Mo. banc 1976), the judge's continuing the suspension of defendant?s probation from 2005 through 2007 for purposes of holding a hearing was unduly prejudicial to Relator. This time frame is particularly offensive in light of the fact that Relator paid his restitution in full before in August 2006, at which time his probationary period expired by operation of law. As previously related, section 559.036.6 requires "every reasonable effort is [to be] made to . . . conduct the hearing prior to the expiration of the period" of probation. The trial judge showed an insufficient "manifestation of an intent to conduct a revocation hearing . . ." before the expiration of Defendats?s probation in August 2006, premised on the February of 2006 charges filed against Defendant. Stelljes v. State, 72 S.W.3d 196, 200 (Mo.App. 2002) at 200. As previously set out, section 559.036.6 provides for the extension of the court?s authority to revoke probation past the date probation expires if certain actions are taken prior to the expiration date. Stelljes, 72 S.W.3d at 200; see State v. Roark, 877 S.W.2d 678, 680 (Mo.App. 1994). This necessarily involves "an affirmative manifestation of an intent to revoke the probationer?s probation" and "every reasonable effort must be made to notify the probationer of the intent to revoke probation and to conduct a hearing prior to the expiration of the probationary period." Stelljes, 72 S.W.3d at 200. Respondent does not have jurisdiction to hold a hearing to revoke Relator?s probation pursuant to section 559.036. See Stelljes, 72 S.W.3d at 201

Full post as published by Showmeblawgs on February 09, 2008 (boomark / email).