probation revocation hearing in Missouri

2022Rather, “probation reduces the impact of a sentence and ‘operates independently of the criminal sentence.’” Bearden, 530 S.W.3d at 504 (internal quotation omitted) (finding a defendant had no right to proceed under Rule 24.035 following a probation revocation hearing because the sentence became final—and the mandatory 24.035 deadline began to run—when he was originally sentenced and placed on probation); Williams, 871 S.W.2d at 451 (finding a defendant had no right to appeal the trial court’s decision to grant or deny probation nor the terms and conditions of an order of probation).

2021See Bearden v. State, 530 S.W.3d 504, 506 (Mo. 2017) (“Rule 24.035(g) defines a ‘complete transcript’ as ‘consisting of’’ the transcript of the ‘guilty plea and sentencing hearing.’ The ‘complete transcript’ does not include a transcript of the probation revocation hearing.”).

2014Connett v. Dickerson, 833 S.W.2d 471, 474 (Mo.App.1992), the court held there was an affirmative manifestation to conduct a revocation hearing, where, well in advance of the expiration of the defendant’s probationary period, three probation violation reports had been filed, the defendant had clearly been notified of the violation reports and requested a continuance, and a probation revocation hearing was then duly scheduled, albeit after the expiration of the defendant’s probationary period.

2014Connett v. Dickerson, 833 S.W.2d 471, 474 (Mo.App.1992), the court held there was an affirmative manifestation to conduct a revocation hearing, where, well in advance of the expiration of the defendant’s probationary period, three probation violation reports had been filed, the defendant had clearly been notified of the violation reports and requested a continuance, and a probation revocation hearing was then duly scheduled, albeit after the expiration of the defendant’s probationary period.

2023The probationer “bears the burden of demonstrating the [probation] court failed to make every reasonable effort to conduct the probation revocation hearing prior to the expiration of the probationary period.” Zimmerman, 514 S.W.3d at 608 .

2022Zimmerman v. Dolan, 514 S.W.3d 603, 608 (Mo. banc 2017), that “[t]he issuance of a capias warrant and suspension of the probationary term are affirmative manifestations of the circuit court’s intent to conduct a probation revocation hearing.” Here, the motion court observed that the plea court, prior to Movant’s earned discharge date of July 29, 2018, suspended Movant’s probation and issued several capias warrants for his arrest.

2019See Amorine, 490 S.W.3d at 376 ; Strauser, 416 S.W.3d at 803-04 (circuit courts lost authority over probationers when revocation hearings were continued over and over past the end of the probation term).

2017Intent to Revoke Section 559.036 “governs the duration of probation terms and the power of a court to revoke a defendant’s probation.” Strauser, 416 S.W.3d at 801 .

2024Amorine v. Parker, 490 S.W.3d 372, 376 (Mo. banc 2016) (holding that scheduling a probation revocation for after the set expiration of probation, even though a review hearing was 8 This Court determines the circuit court’s reference to hearings as a “probation violation hearing” as opposed to a probation revocation hearing is not determinative of the circuit court’s manifestation of intent to hold a probation revocation hearing.

2017Amorine v. Parker, 490 S.W.3d 372, 374 (Mo. banc 2016) (quoting State ex rel.

2014Carlton v. Haynes, 552 S.W.2d 710, 714-15 (Mo. banc 1977), which states that a court does not lose authority to hold a probation revocation hearing after a probation term expired "unless the resulting delay was unreasonable and prejudicial to the petitioner.” This argument is incorrect for two reasons.

2014Carlton v. Haynes, 552 S.W.2d 710, 714-15 (Mo. banc 1977), which states that a court does not lose authority to hold a probation revocation hearing after a probation term expired “unless the resulting delay was unreasonable and prejudicial to the petitioner.” This argument is incorrect for two reasons.

2009Ewing v. Wyrick, 535 S.W.2d 442, 445 (Mo. banc 1976).

2008While it was Relator’s burden to show he was prejudiced by Respondent’s tardiness in setting a probation revocation hearing, Ewing v. Wyrick, 535 S.W.2d 442, 445 (Mo. banc 1976), we determine that continuing the suspension of Relator’s probation from 2005 through 2007 for purposes of holding a hearing was unduly prejudicial to Relator.

2002Teter, 893 S.W.2d at 405-06 ; Wood, 853 S.W.2d at 370 .

2002Teter, 893 S.W.2d at 406; Wood, 853 S.W.2d at 370 .

1993The court stated that a Rule 24.035 motion is not the proper procedure by which to challenge the effectiveness of counsel at a probation revocation hearing, citing Lane v. State, 710 S.W.2d 354, 355 (Mo.App.1986).

1993Lane, 710 S.W.2d at 354-55 .

2019Turner examines Gagnon, 411 U.S. 778 , 93 S.Ct. 1756 , stating "[T]he Court has held that a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing." Id. at 443, 131 S.Ct. 2507 (emphasis in original).

2019Turner examines Gagnon, 411 U.S. 778 , 93 S.Ct. 1756 , stating "[T]he Court has held that a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing." Id. at 443, 131 S.Ct. 2507 (emphasis in original).

1997A Rule 24.035 motion “is not the proper procedure by which to challenge the effectiveness of counsel at a probation revocation hearing.” Id.

1995“A [Rule 24.035 motion] is not the proper procedure by which to challenge the effectiveness of counsel at a probation revocation hearing.” Id.

2021Movant’s claim here fails both because he does not challenge the effectiveness of his trial or appellate counsel, and because he challenges the validity of the judgment revoking his probation rather than his conviction or sentence, as required by Rule 24.035(a). 4 Movant concedes that post-conviction relief is generally unavailable for claims of ineffective assistance of probation-revocation counsel, but he argues that this Court’s prior decision in Rush v. State creates an exception where the movant waives the probation- revocation hearing. 366 S.W.3d 663 (Mo. App. E.D. 2012).

2018See Rush v. State , 366 S.W.3d 663 , 665-66 (Mo. App. E.D. 2012).

2017Dotson, 416 S.W.3d at 824 .

2017Central to the Southern District’s holding was the finding that the circuit court and the state had knowledge of where the probationer was incarcerated and, therefore, the circuit court “could have set a probation revocation hearing in this matter and, by means of a writ of habeas corpus ad testificandum or ad pro-sequendum, could have secured [the probationer’s] presence for such a hearing.” Id. at 825 .

2014At the close of the probation revocation hearing, the State argued the hearings in other cases such as Petree, 190 S.W.3d at 642 , were five months after the probation expired, while "here we’re just dealing with 23 days or so.” However, the length of delay is not an issue.

2014Unfortunately, on the record before us, there is no evidence of a “reasonable effort” to conduct the hearing within the term of probation.8 This is not a case where a hearing was scheduled prior to expiration of probation and then continued.9 See Petree, 190 S.W.3d at 642-43 (where the 8 When Timberlake’s attorney pointed out to the trial court at the July 14, 2011 hearing that Timberlake’s probation had already expired, the trial court simply stated, “I think the Court believes that it’s appropriate to go ahead and proceed with the probation violation hearing.” The trial court gave no basis o

2001O'Brien v. Murphy, 592 S.W.2d 194, 196 (Mo.App.1979), this court’s Eastern District ruled that for purposes of imposing Rule 30.12 a probation revocation hearing was not a separate, independent proceeding.

1990O’Brien v. Murphy, supra, relator sought to bar the respondent, Judge, from presiding at a probation revocation hearing following a denial of rela-° tor’s motion for disqualification.

2000On appeal, we affirmed the application of the clear and convincing evidence standard, stating that, because the juvenile was already under the juvenile court’s jurisdiction, since he “was not being tried on a criminal charge,” and “[ijnasmuch as this hearing is in effect a probation revocation hearing, the standard of proof as set forth in Rule 117.05(b) applies.” C.E.E., 727 S.W.2d at 452 (emphasis added).

1997On appeal, this Court determined that “[i]nas-much as this hearing is in effect a probation revocation hearing, the standard of proof as set forth in Rule 117.05(b) applies.” Id. at 452 .

2022Rather, “probation reduces the impact of a sentence and ‘operates independently of the criminal sentence.’” Bearden, 530 S.W.3d at 504 (internal quotation omitted) (finding a defendant had no right to proceed under Rule 24.035 following a probation revocation hearing because the sentence became final—and the mandatory 24.035 deadline began to run—when he was originally sentenced and placed on probation); Williams, 871 S.W.2d at 451 (finding a defendant had no right to appeal the trial court’s decision to grant or deny probation nor the terms and conditions of an order of probation).

2022Culp v. Rolf, 568 S.W.3d 443, 450 (Mo.App. 2019) (holding that “the circuit court must hold a probation revocation hearing within the probationary term as shortened by an offender’s [ECCs], or else satisfy the conditions described in [section] 559.036.8”).

2021Griffin v. State, 937 S.W.2d 400, 401 (Mo. App. E.D. 1997).

2021Id.; see also Hoskins v. State, 329 S.W.3d 695 , 698 n.3 (Mo. banc 2010) (SIS defers sentencing, and if defendant violates probation, court may revoke probation and impose any sentence within range of punishment).

2021Boswell v. Harman, 550 S.W.3d 551, 554 (Mo. App. W.D. 2018) (citing State ex rel.

2019See Soloman v. State, 821 S.W.2d 133, 135 (Mo. App. S.D. 1992); see also Bearden v. State, 530 S.W.3d 504, 506 (Mo. banc 2017); Snyder v. State, 288 S.W.3d 301, 303 (Mo. App. E.D. 2009).

2019See Soloman v. State, 821 S.W.2d 133, 135 (Mo. App. S.D. 1992); see also Bearden v. State, 530 S.W.3d 504, 506 (Mo. banc 2017); Snyder v. State, 288 S.W.3d 301, 303 (Mo. App. E.D. 2009).

2019Amorine, 490 S.W.3d at 376 .

2019See Amorine, 490 S.W.3d at 376 ; Strauser, 416 S.W.3d at 803-04 (circuit courts lost authority over probationers when revocation hearings were continued over and over past the end of the probation term).