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Timberlake v. State

Court of Appeals of Missouri, Southern District, First Division

January 31, 2014

MICHAEL A. TIMBERLAKE, Appellant,
v.
STATE OF MISSOURI, Respondent

APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY. Honorable Alan Blankenship, Associate Circuit Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

For Appellant: Erika R. Eliason, of Columbia, Missouri.

For Respondent: Chris Koster, Attorney General and Dora A. Fichter, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., C.J. - OPINION AUTHOR. NANCY STEFFEN RAHMEYER, P.J. - Concurs. DANIEL E. SCOTT, J. - Concurs.

OPINION

Page 225

REVERSED AND REMANDED WITH DIRECTIONS.

Michael A. Timberlake (" Timberlake" ) appeals the motion court's judgment overruling his motion for post-conviction relief asserting that the trial court[1] erred in revoking his probation because the revocation took place after his probation term had expired. We reverse the motion court.

Facts and Procedural Background

Timberlake was charged in the Circuit Court of Stone County with felony domestic assault in the second degree. On June 21, 2006, Timberlake entered a plea of guilty. As part of the plea agreement, the State agreed to recommend a five-year sentence, a suspended execution of sentence, and supervised probation. The trial court sentenced Timberlake to five years

Page 226

in the Missouri Department of Corrections (" DOC" ), but suspended execution of sentence and placed Timberlake on supervised probation for five years.

On July 17, 2006, less than thirty days after sentencing, Timberlake's first probation violation report was filed. A " Notice of Violation of Probation, Notice of Date and Time and Hearing, [and] Disclosure of Evidence in General Terms" was filed on July 24, 2006, in accordance with the trial court's order to the prosecuting attorney. A hearing was held on September 12, 2006, attended by Timberlake and his attorney, and the trial court issued its order continuing Timberlake's probation provided Timberlake completed an anger management program and counseling. " Probation Violations" were also shown filed on January 4, 2007, September 24, 2007, and November 24, 2008.[2]

On May 6, 2011, two probation violation reports were shown filed. In response, on May 19, 2011, after reviewing the " Field Violation Report[s]," the trial court issued its order directing a capias warrant be issued with bond set at $10,000, and the prosecutor prepare and file a " Notice of Probation Violation for hearing on 07/13/11 at 1:00 p.m."

On June 10, 2011, the prosecutor filed the " Notice of Violation of Probation[,] Notice of Date and Time and Hearing[,] [and] Disclosure of Evidence in General Terms" (" Notice" ) alleging Timberlake had violated six " conditions of [his] probation." The Notice also stated a hearing was set for July 13, 2011, at 1:00 p.m. in Stone County, and outlined the evidence which would be presented. On the same day, the trial court issued a " Writ of Habeas Corpus Ad Prosequendum" and sent it to the Stone County Sherriff for service on Timberlake at the Western Missouri Correctional Center, where he was ...


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