Opinion 175
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-1.1 Compliance with the Law; 2-2.4 External Influences on Judicial Conduct; and 2-2.5 Competence, Diligence and Cooperation. Currently See Section 577.023(6) - this will change January 1, 2017 to 577.023(7) and will require the court to instruct the jury on sentencing. Section 302.321.2’s wording has changed, and it will change again effective January 1, 2017, but these changes would not affect the analysis.)
Issue:
May a judge grant a suspended imposition of sentence with probation on a driving while intoxicated case where the defendant is charged as a prior and persistent offender?
Secondly, may a judge grant a suspended imposition of sentence with probation in a driving while suspended or revoked case?
Discussion:
The pertinent language of VAMS Section 577.023(4) concerning persistent and prior offender and driving while intoxicated cases states:
The pertinent language of VAMS Section 302.321 concerning the charge of driving while license or driving privileges is canceled, suspended or revoked is as follows:
In the opinion of the Commission, the language of VAMS Section 577.023(4) and 302.321 is clear in that a judge may not grant a suspended imposition of sentence to a defendant charged with driving while intoxicated as a persistent and prior offender or to a defendant charged with driving while license or driving privilege is canceled, suspended or revoked [See Peach v Calvin, 753 SW2d 82 (Mo. App.1988)].
Heretofore in Opinion 148 the Commission reviewed the issue of whether a judge may ethically grant hardship driving privileges to an applicant who has been convicted twice within a five-year period of violating the provisions of Section 577.010 RSMo when such a grant violates the clear meaning of the statute and case authority. While stating that the clear meaning of the statute and case authority was that granting hardship driving privileges to such an applicant is in violation of VAMS 577.010, the Commission further stated:
Canon 3B(2) requires that a judge “be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor or fear of criticism.” When a judge intentionally violates the clear meaning of a statute, a violation of the Canons has occurred.
On the other hand, the prosecutor controls what cases are brought before the judge for disposition and if the prosecutor in the prosecutor’s discretion determines to reduce or amend a charge to something other than driving while intoxicated or driving while revoked, a suspended imposition of sentence is no longer prohibited under the clear meaning VAMS Sections 577.023(4) and 302.321. A judge, in such a case, may grant a suspended imposition of sentence even though the original charge, prior to the reduction or amendment, would prohibit such a sentence.
(Dated: May 18, 2000)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 175
Issue:
May a judge grant a suspended imposition of sentence with probation on a driving while intoxicated case where the defendant is charged as a prior and persistent offender?
Secondly, may a judge grant a suspended imposition of sentence with probation in a driving while suspended or revoked case?
Discussion:
The pertinent language of VAMS Section 577.023(4) concerning persistent and prior offender and driving while intoxicated cases states:
No court shall suspend the imposition of sentence as a prior or persistent offender under this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, to the contrary notwithstanding, nor shall such person be eligible for parole or probation until he has served a minimum of forty-eight consecutive hours’ imprisonment, unless as a condition of such parole or probation such person performs at least ten days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. (Emphasis added)
The pertinent language of VAMS Section 302.321 concerning the charge of driving while license or driving privileges is canceled, suspended or revoked is as follows:
Any person whose license and driving privilege as a resident or nonresident has been canceled, suspended, or revoked under the provision of section 302.010 to 302.340, sections 302.500 to 302.540 section 544.046 RSMo, or under the provisions of chapter 577, RSMo, and who drives any motor vehicle upon the highways of this state while such license and privilege is canceled, suspended or revoked and before an official reinstatement notice or termination notice is issued by the director, is guilty of a class A misdemeanor. No court shall suspend the imposition of sentence as to such a person nor sentence such person to pay a fine in lieu of a term of imprisonment, no shall such person be eligible for parole or probation until he has served a minimum of forty-eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving a least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. (Emphasis added)
In the opinion of the Commission, the language of VAMS Section 577.023(4) and 302.321 is clear in that a judge may not grant a suspended imposition of sentence to a defendant charged with driving while intoxicated as a persistent and prior offender or to a defendant charged with driving while license or driving privilege is canceled, suspended or revoked [See Peach v Calvin, 753 SW2d 82 (Mo. App.1988)].
Heretofore in Opinion 148 the Commission reviewed the issue of whether a judge may ethically grant hardship driving privileges to an applicant who has been convicted twice within a five-year period of violating the provisions of Section 577.010 RSMo when such a grant violates the clear meaning of the statute and case authority. While stating that the clear meaning of the statute and case authority was that granting hardship driving privileges to such an applicant is in violation of VAMS 577.010, the Commission further stated:
While the Commission is cognizant of the fact that judges make errors and a simple error is not a violation of the Canons, the questions currently before the Commission rise above the level of innocent error.
Canon 3B(2) requires that a judge “be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor or fear of criticism.” When a judge intentionally violates the clear meaning of a statute, a violation of the Canons has occurred.
On the other hand, the prosecutor controls what cases are brought before the judge for disposition and if the prosecutor in the prosecutor’s discretion determines to reduce or amend a charge to something other than driving while intoxicated or driving while revoked, a suspended imposition of sentence is no longer prohibited under the clear meaning VAMS Sections 577.023(4) and 302.321. A judge, in such a case, may grant a suspended imposition of sentence even though the original charge, prior to the reduction or amendment, would prohibit such a sentence.
(Dated: May 18, 2000)