Chapter 31

Probation and Probation Revocation

 

---

 

Section 31.1      Authority of Court

Section 31.2      Suspended Imposition of Sentence (SIS)

Section 31.3      Suspended Execution of Sentence (SES)

Section 31.4      "Shock Probation" and Other 120-day Department of Corrections' Programs

Section 31.5      Other Forms of Probation

Section 31.6      Conditions of Probation

Section 31.7      Term of Probation and Extension of Probation

Section 31.8      Revocation of Probation

Section 31.9      Sentencing after Revocation

Section 31.10    Judicial Practice Tips

 

---

 

Section 31.1 Authority of Court

 

Statutory authority. A judge's authority to grant probation is based on the relevant statutes. State ex rel. McCulloch v. Schiff, 852 S.W.2d 392 (Mo. App. 1993). The court retains jurisdiction over the defendant during the probationary period. State ex rel. O'Brien v. Murphy, 592 S.W.2d 194 (Mo. App. 1979).

 

Defendant's right to reject. A defendant cannot be compelled to accept probation; the defendant can reject probation and accept the imposed punishment. State v. Welsh, 853 S.W.2d 466 (Mo. App. 1993).

 

Nature of probation. Probation is:

 

 

Board of Probation and Parole. Probation is not available for all criminal offenses. The Board of Probation and Parole must provide probation services for any person convicted of any class of felony. However, the board is not required to provide probation services for any class of misdemeanor, except those class A misdemeanors the basis of which is contained in Chapters 565 and 566, RSMo (2006) and Sections 568.050, 455.085, 455.538, and 589.425, RSMo (2006). Section 217.750.2, RSMo (2006).

 

Unsupervised probation. The court has the authority to place a defendant on probation without supervision. Of course, in doing so, the court must be conscious of the fact that it will be virtually impossible to determine if the defendant has violated any conditions of probation. However, some courts, through their court services department, provide minimal supervision of misdemeanor offenders, who are otherwise ineligible for supervision by the Board of Probation and Parole. In addition, Section 559.600, RSMo (2006) authorizes courts to contract with private agencies to provide probation services to misdemeanor offenders, who are otherwise ineligible for supervision by the Board of Probation and Parole.  

 

Sentencing Assessment Reports (SAR). Section 217.760.1, RSMo (2006) states that in all felony cases and in certain class A misdemeanor cases contained in Chapters 565 and 566, RSMo (2006) and Section 577.023, RSMo (2006), the board must provide a Sentencing Assessment Report, if the circuit judge requests one. Section 217.760.1, RSMo (2006) also requires that in all felony cases in which the recommended sentence established by the Missouri Sentencing Advisory Commission includes probation, but the recommendation of the prosecuting attorney does not include probation, the Board of Probation and Parole shall, prior to sentencing, provide the court with a report on available alternatives to incarceration. 

 

The SAR shall contain any prior criminal record of the defendant and such information about the defendants characteristics, financial condition, social history, and the circumstances about the defendants behavior as would be helpful in determining a sentence. The SAR must also contain information concerning the impact of the crime on the victim, the recommended sentence established by the commission and alternatives to incarceration. See Sections 217.760.2 and 217.762.2, RSMo (2006); see also Chapter 24: Sentencing Assessment Reports for a more detailed discussion of the contents of a SAR.

 

Section 559.125.3 RSMo (2006) provides that the SAR must be made available to the state. The court, in its discretion, may also make other information and data obtained in connection with the report available to the state. Id. Upon a request by the defendant or counsel, the court shall make the complete report and its recommendations available to the defendant and counsel before determining a sentence. Rule 24.07(b)(4). It is the common practice to make the SAR available to the defendant and counsel without requiring a formal request.   

 

The trial court should give the SAR serious consideration in determining whether probation is a just and appropriate disposition for the defendant. However, the court's use of the report in determining whether to grant or deny probation is discretionary. Sheppard v. State, 560 S.W.2d 347 (Mo. App. 1977); State v. Ledbetter, 907 S.W.2d 805 (Mo. App. 1995).

 

Discretion of the court. Probation and parole board recommendations are advisory. State v. Ledbetter, 907 S.W.2d 805 (Mo. App. 1995). Probation is a privilege, not a right, which may be granted or withheld in the sentencing court's discretion. State v. Keller, 685 S.W.2d 605 (Mo. App. 1985). If probation is denied, the trial court need not set out its reasons. State v. Geer, 624 S.W.2d 143 (Mo. App. 1981). The fact that a trial judge has a history of granting first offenders probation does not mean the judge commits an extreme abuse of discretion when he denies a first offender probation. State v. Priesmeyer, 719 S.W.2d 873 (Mo. App. 1986).

 

Review. The court's decision to grant or deny probation cannot be appealed. State v. Williams, 871 S.W.2d 450 (Mo. banc 1994). A trial court's decision not to grant probation is reviewable only when there is a showing of an extreme abuse of discretion. Id. A defendant can receive probation and at the same time process an appeal, if execution of sentence is suspended. State v. Phroper, 619 S.W.2d 83 (Mo. App. 1981). However, a SIS cannot be appealed. See section about Finality and Appealability below. 

 

Factors to be considered by the court. A court may place a defendant on probation for a specific period of time, if the court finds:

 

 

When probation ordered. The court can order probation either after trial or a guilty plea, at sentencing, or at the time of issuing a suspended imposition of sentence order.

 

Back to Top

 

Section 31.2 Suspended Imposition of Sentence (SIS)

 

Definition. "The phrase 'suspended sentence' is not a 'sentence' at all but is used to describe the act of withholding the 'sentence' in a case. A 'suspended sentence' is not a 'sentence' within the meaning of the word." State v. Gordon, 344 S.W.2d 69 (Mo. App. 1961). "An accurate definition of 'suspension of sentence' is provided in 24 C.J.S. Section 1571(1)(a) (1961), as follows: 'Suspension of sentence' is a suspension of active proceedings in a criminal prosecution. It is not a final judgment, or the equivalent of a nolle prosequi or discontinuance, nor does it operate as a discharge of accused." 24 C.J.S. Section 1571(1)(a) (1961); State ex.rel. Peach v. Tillman, 615 S.W.2d 514 (Mo. App. 1981). Nor is the SIS a conviction. State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984).

 

Statutory authority. Section 557.011.2(3), RSMo (2006), among other options, authorizes the trial court to suspend the imposition of sentence, with or without placing the person on probation. However, it is rare that a court will suspend imposition of sentence and not put the defendant on probation.

 

Finality and appealability. In a criminal case, a judgment does not become final and appealable until sentence is entered. Therefore, a suspended imposition of sentence is not a final judgment from which a party may appeal. State v. Lynch, 679 S.W.2d at 860 (Mo. banc 1984); State v. Drake, 906 S.W.2d 787 (Mo. App. 1995).

 

Impeachment. A SIS can be used to impeach in a criminal case. Section 491.050, RSMo (2006); State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984). State v. LaPlant, 673 S.W.2d 782 (Mo. banc 1984) holds that the SIS received prior to the enactment of Section 491.050, RSMo can still be used for impeachment. However, a SIS may not be used to impeach a witness in a civil case. Section 491.050, RSMo (2006); M.A.B. v. Nicely, 909 S.W.2d 669 (Mo. banc 1995).

 

Prior/persistent offender status. A SIS can be used to establish prior offender status. Section 558.016.1, RSMo (2006); State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984).

 

Closed records. The legislative purpose of providing the sentencing alternative of a SIS is to allow a defendant to avoid the stigma of a lifetime conviction and the consequences that follow. See Yale v. City of Independence, 846 S.W.2d 193 (Mo. banc 1993). If the defendant successfully completes probation after receiving a SIS, the case file is closed, except for the court’s judgment or order. Section 610.105.1, RSMo (2006). Closed records are made available only in limited situations and are unavailable to the public. Section 610.120, RSMo (2006); Yale v. City of Independence, 846 S.W.2d 193 (Mo. banc 1993). Note, however, that official court records of a SIS are available to the victim, or if the victim is a minor, to victims family for the purpose of pursuing a civil action against the defendant, when the underlying offense arises under Chapter 566, RSMo or Sections 568.045, 568.050, 568.060, 568.065, 568.080, 568.090 or 568.175, RSMo. Section 610.105.2, RSMo (2006).

 

Back to Top

 

Section 31.3 Suspended Execution of Sentence (SES)

 

A suspended execution of sentence is a judgment of conviction and sentence, the execution of which is stayed or suspended. Section 557.011.2(4), RSMo (2006); State v. Nelson, 9 S.W.3d 687 (Mo. App. 1999). Imposition of a SES does not entitle the defendant to record closure upon completion of probation (Section 610.105, RSMo 2006), and is reviewable on appeal.

 

Back to Top

 

Section 31.4 "Shock Probation" and Other 120-day Department of Corrections' (DOC) Programs

 

In general. A circuit court, on its own motion and not that of the state or the defendant, may grant probation to a defendant anytime up to 120 days after such defendant has been delivered to the custody of the Department of Corrections, but not thereafter. Section 559.115.2, RSMo (2006). However, the court’s authority in this regard does not apply where the underlying offense is one listed in Section 559.115.8, RSMo (2006). See section about Exclusions below for a listing of the relevant offenses. The court may place the offender on probation in a program created under Section 217.777, RSMo (2006) (a community-based corrections program) or may place the defendant on probation with any other conditions authorized by law.

 

It should be noted that an offender’s first incarceration under a DOC, 120-day program prior to release on probation shall not be considered a prior commitment to DOC for purposes of determining a minimum prison term under Section 558.019, RSMo. Section 559.115.7, RSMo (2006).    

 

Procedure. The court can act under Section 559.115, RSMo (2006) without any prior discussion or order at the time of sentencing. Usually, however, a court will reference the court's intention to utilize the statute at the time of sentencing and will formally request a report from the department within the 120-day period. If the court decides to grant probation, it must:

 

 

Special procedures under Section 559.115.3, RSMo (2006). Special procedures apply where the court recommends placement in a particular DOC 120-day program, e.g. drug treatment programs or 120-day shock incarceration. The procedures are as follows:

 

 

Special procedures regarding predatory sexual predators - Section 559.115.5, RSMoWhere the offender has plead or been found guilty of felony B sexual abuse and was determined to be a predatory sexual offender (Section 558.018, RSMo (2006)), the court must request DOC to place the offender in its sexual offender assessment unit.

 

Deadlines. On its face, Section 559.115, RSMo (2006) requires action by the court within 120 days of defendant's delivery to the Department of Corrections. The court loses jurisdiction after 120 days, although it seems reasonable that the jurisdiction can be extended by a state request for a hearing. Strict compliance with the statute is best, even though the Department of Corrections will often comply with a late court order. Duly v. Heflin, 873 S.W.2d 932 (Mo. App. 1994).

 

Exclusions. The court cannot utilize Section 559.115, RSMo in the following situations:

 

 

Judicial practice tips.

           

 

Back to Top

 

Section 31.5 Other Forms of Probation

 

A number of "hybrid" or special forms of probation have been created, mainly to deal with drug offenses or defendants who are addicted. These hybrid programs include:

 

 

Note: For most current programs see the Department of Corrections’ Supervision Strategies and Treatment Alternatives.

 

Back to Top

 

Section 31.6 Conditions of Probation

 

Restitution orders. Restitution may be ordered as a condition of probation. Section 559.021.2, RSMo (2006). Moreover, Section 559.105, RSMo (2006) specifically authorizes the payment of restitution to a victim where the defendant pleads or is found guilty of tampering in the first (Section 569.080.1(2), RSMo), or stealing a motor vehicle, watercraft or aircraft (Section 570.030.3(3), RSMo (2006)). The restitution amount is such cases may include, but is not limited to: 1) the victim’s expenses in participating in the prosecution, 2) the victim’s cost for any repairs to the vehicle, watercraft, or aircraft, and 3) the victim’s cost associated with towing or storing the motor vehicle. Section 559.105, RSMo (2006). Before entering a restitution order as a condition of the court's granting probation to a defendant, the following procedure should be followed:

 

 

Determination of restitution. The restitution amount usually is determined by the court, not a probation officer. In State v. Hollensbe, 720 S.W.2d 14 (Mo. App. 1986), the court directed the probation officer to collect and account for restitution payments and submit to an annual review. The court's action was affirmed.

 

Time restitution to be made. Failure to set time for restitution payment does not invalidate that order. In DeClue v. State, 741 S.W.2d 103 (Mo. App. 1987) the defendant was placed on probation with general condition that restitution be made. About a month before defendant's probation would expire, the trial court revoked probation, because the probationer had failed to make restitution. However, the restitution order cannot extend beyond maximum probation period. Grossoehme v. Cordell, 904 S.W.2d 392 (Mo. App. 1995); see Section 559.021.2, RSMo (2006).

 

Conditions of probation in general. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to insure that the defendant will not again violate the law. Section 559.100, RSMo (2006). When a defendant is placed on probation, he shall be given a certificate explicitly stating the conditions on which he is being released. The following conditions usually appear in orders of probation:

 

Standard Conditions

 

 

Special Conditions

 

 

Modification of conditions. The court may modify the conditions during the term of probation, without notice. Sections 217.755 and 559.021.4, RSMo (2006).

 

Review. Conditions of probation under a SES are reviewable on appeal, as the judgment and sentence in a SES are appealable. However, review of conditions of a SIS can only be by extraordinary writ of mandamus, prohibition or habeas corpus. State v. Williams, 871 S.W.2d 450 (Mo. banc 1994).

 

Back to Top

 

Section 31.7 Term of Probation and Extension of Probation

 

In general. At the hearing where a defendant is sentenced or an order of a suspended imposition of sentence is entered, the court must set the term of the probation. The following terms are allowed:

 

 

Lifetime supervision by Probation and Parole. Sections 217.735 and 559.106, RSMo (2006) require probation and parole supervision for the duration of the probationer’s or parolee’s natural life, where he/she has plead or been found guilty to a number of Chapter 566, RSMo sexual offenses, when the victim is under 14 years of age and the person is determined to be a "prior sex offender,” i.e., someone who previously has plead or been found guilty of a Chapter 566, RSMo sexual offense, a violation of Section 568.020, RSMo when the offender had sexual intercourse with the victim, or a violation of Section 568.045, RSMo. These provisions apply only when the offense occurred after August 28, 2006. See Sections 217.735 or 559.106, RSMo for the list of offenses covered by these provisions. 

 

Extensions of probation. Generally, the total time on any probation term, including any extension, may not exceed the maximum term established in Section 559.016.3, RSMo (2006). However, pursuant to a 2005 amendment to this section, the court may extend the total time on probation up to one year beyond the term limits set forth in Section 559.016.1, RSMo (2006). See Sections 559.016.3 and 559.036.2, RSMo (2006).

 

A term of probation may be extended without notice of the proposed extension and without a hearing. However, usually extensions are imposed as a disposition in a revocation proceeding, the resolution of which does require notice and hearing. An extension is within the trial court's discretion. Ockel v. Riley, 541 S.W.2d 535 (Mo. 1976). The term may be extended only once. Section 559.036.2, RSMo (2006). Nevertheless, if the court revokes probation, it may impose a new (second) term of probation. The new probation may be either a SIS or SES, but an order of revocation must actually enter a new, second term of probation, which term is subject to the term limits set forth in Section 559.115.1, RSMo. State ex rel. Brown v. Combs, 994 S.W.2d 69 (Mo. App. 1999); see also Bell v. State, 996 S.W.2d 739 (Mo. App. 1999).

 

"Judicial parole." A sentencing court cannot place a defendant on judicial parole for a period in excess of the sentence the defendant received. In State v. Mallory, 886 S.W.2d 89 (Mo. App. W.D. 1994), a defendant was sentenced to six months and began his incarceration. Then he applied for parole and was given a two year term of parole. The term could only have been for six months or less. The time the defendant had served would reduce the six months period. Section 559.100.1, RSMo (2006) authorizes the court to parole offenders within the court’s jurisdiction, except those where parole is prohibited by statute. Typically, judicial parole is granted to misdemeanor offenders serving time in the local correctional facility.

 

Completion of probation. When a probationer under a SIS successfully completes his term of probation, he may be discharged from the court's jurisdiction. No judgment of conviction may thereafter be entered against him. Likewise, he cannot be then acquitted or have the charge against him dismissed. State ex rel. Peach v. Tillman, 615 S.W.2d 514 (Mo. App. 1981).

 

No probationer ordered to pay restitution pursuant to Section 559.105, RSMo (2006) shall be released from probation until restitution is paid or the maximum term is served. See section 31.6 - Conditions of Probation/Restitution orders above. 

 

Concurrent terms. A probation term automatically runs concurrently with all other probation terms from any Missouri court, ordered at any time. A probation term also runs concurrently with any federal or other state jail, prison or probation term, unless a contrary order is issued by the Missouri court. Section 559.036.1, RSMo (2006).

 

Suspending a term of probation. Section 559.036.5, RSMo (2006) authorizes the suspension of a term of probation upon the filing of a motion to revoke. However, this interpretation is contrary to the previous practice prohibiting the tolling of a probationary term. See State ex rel. Limback v. Gum, 895 S.W.2d 663 (Mo. App. 1995). 

 

Early discharge. If warranted by the defendant's conduct and the ends of justice, the trial court may terminate the probation before the expiration of the term and discharge the defendant. Section 559.036.2, RSMo (2006).

 

Back to Top

 

Section 31.8 Revocation of Probation

 

Procedure. The following steps are necessary to revoke probation:

 

 

Constitutional standards and rights of defendant. The full panoply of rights due defendant in a criminal prosecution does not apply. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The Miranda warning may not be required in a non-custodial setting before the probation officer obtains what may be incriminating answers to his questions or hear voluntarily given incriminating statements of a probationer. Minnesota v. Murphy, 465 U.S. 420, 104 S.W. 1136, 79 Ed.2d 409 (1984).

 

However, the defendant is entitled to the following basic rights:

 

 

Hearing. The hearing should not be delayed without good cause. See State ex rel. Carlton v. Haynes, 552 S.W.2d 710 (Mo. 1977). At the hearing, the following should be observed:

 

 

Evidence. Hearsay evidence is admissible at a revocation hearing. However, hearsay may not be relied upon as the exclusive basis for revocation. See Carson v. Pierce, 789 S.W.2d 495 (Mo. App. 1990) where the court held that if a probation violation relates to the use of a controlled substance, the lab report alone will not support revocation, unless the report is properly qualified as a business record or the person who authored the report is available for cross-examination.

 

Grounds for revocation. The most common grounds for probation revocation include:

 

 

Note: Probation cannot be revoked on the basis of a probationer’s criminal history that comes to light after an order of probation has been entered. State ex rel. Popowich v. Conley, 967 S.W.2d 294 (Mo. App. 1998).    

 

Absence of preliminary hearing. If a preliminary hearing is not held, and a waiver of the right to same is not given, then a record should be made of the facts and reasons which make the holding of a preliminary hearing unnecessary. A sufficient reason would be the short time lapse between the initiation of the probation revocation procedure with or without the incarceration of the defendant and the holding of the hearing. On this general question, see Chilembwe v. Wyrick, 574 F.2d 985 (8th Cir. 1978) where the court found that the probationer’s presence in another state was sufficient probable cause to believe he had violated the condition prohibiting him from leaving the state. Thus, the requirement for a preliminary hearing was excused.

 

It is interesting to note that Section 217.722.2, RSMo (2006) provides that any probationer arrested on a probation officer’s warrant is entitled to a preliminary hearing, so long as the probationer is held in custody or unless the probationer waives the preliminary hearing. The provision further sets out that the preliminary hearing may be held by either a court or ”an impartial member of the staff of the Board of Probation or Parole.” Although the issuance of a probation officer’s warrant and a preliminary hearing are authorized, the common practice is for the probation officer to notify the court or the prosecuting attorney of an alleged violation and request that a revocation proceeding be initiated.     

 

Consideration of alternatives. In revoking probation, the court must consider alternatives to incarceration. Sincup v. Blackwell, 608 S.W.2d 389 (Mo. banc 1989). However, in ordering a revocation of a probation, the court, after finding an unexcused and unjustified violation of a substantial condition, need not expressly state in its findings that there is no other reasonable alternative other than revocation and incarceration under the sentence and judgment. See Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) and Deaton v. State, 705 S.W.2d 70 (Mo. App. 1985) as to the record the trial judge should make. Regarding alternatives to incarceration, the court can impose a "non-prison,” alternative sentence, the probationer’s level of supervision can be raised, new conditions of probation can be imposed, the probationer’s term can be extended, or probation can be revoked and a new term with additional conditions imposed.

 

Change of judge. An automatic change of judge is not permitted in probation revocation proceedings, unless the probation has been transferred to a judge who did not order the probation. A change of judge can be made in accordance with a local court rule. Section 559.029, RSMo (2006). In the case of retirement, resignation, disability or transfer, a non-sentencing judge can hear the revocation. State ex rel. Dunn v. Dalton, 793 S.W.2d 157 (Mo. App. 1990).

 

Review. Grant, denial or revocation of probation is not reviewable by appeal, as such orders are not considered to be appealable judgments. Review is exclusively by habeas corpus. Rule 91; State v. Williams, 871 S.W.2d 450 (Mo. banc 1994); State v. Stewart, 14 S.W.3d 671 (Mo. App. 2000).

 

Insanity. Probation cannot be revoked if the probationer, because of mental disease or defect, lacks the capacity to understand the proceedings brought against him or to assist in his defense. Sections 552.020.1 and 559.030.4, RSMo (2006); State ex rel. Juergens v. Cundiff, 939 S.W.2d 381 (Mo. banc 1997).

 

Revocation after expiration of term. It is possible to revoke that probation after the expiration of the probationary period only if the violation occurred and the formal revocation procedures were initiated during the probationary period. State ex rel. Carlton v. Haynes, 552 S.W.2d 710 (Mo. banc 1977). Action to revoke that is begun after expiration of the term of probation is beyond the court's jurisdiction. State v. Forest, 753 S.W.2d 87 (Mo. App. 1988). In order to retain jurisdiction, the court must ”affirmatively manifest its intention” to conduct revocation proceedings prior to expiration of the term, make a reasonable effort to notify the probationer, and make a reasonable effort to conduct a hearing prior to expiration of the term. Section 559.036.6, RSMo (2006) and State ex rel. Limback v. Gum, 895 S.W.2d 663 (Mo. App. 1995). Usually an order suspending the term of probation and issuing a warrant for the defendant's arrest will suffice to manifest this intention. State ex rel. Connett v. Dickerson, 833 S.W.2d 471 (Mo. App. 1992). 

 

Credit for time on probation. The judge revoking probation or parole may credit none or a part or all of such time served on probation or parole to the imprisonment time to be served on his sentence following the revocation. Such credit is discretionary,not a matter of right. See Section 559.100.2, RSMo (2006); see also Milligan v. State, 781 S.W.2d 267 (Mo. App. 1989) where the court construed the predecessor to Section 559.100.2, RSMo, Section 217.765, RSMo. The revoking judge has discretion on the matter. Norman v. State, 740 S.W.2d 369 (Mo. App. 1987) where again the court decided the issue based on the authority in Section 217.765, RSMo, the predecessor to Section 559.100.2, RSMo (2006).

 

Back to Top

 

Section 31.9 Sentencing After Revocation

 

SES/SIS. Where the probationer received a SES, the court may execute the sentence previously imposed. Where the probationer received a SIS, the court may impose and execute a  term of incarceration anywhere within the full range of punishment for the underlying offense. Alternatively, the court may impose a sentence of incarceration, but suspend its execution. In such case, the former SIS converts to a SES with a ”back-up” term of incarceration.

 

Absent a knowing and intelligent waiver of the right to counsel, no defendant may be imprisoned, unless the defendant was represented by counsel at trial. This rule applies even where the court revokes probation and attempts to execute the suspended sentence of a pro se defendant who plead or was found guilty of a misdemeanor offense. Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). In Shelton, the United States Supreme Court pointed out the trial court failed to inquire into the defendant’s indigency and failed to offer to appoint counsel for him.

 

Back to Top

 

Section 31.10 Judicial Practice Tips

 

 

Back to Top