Court of Appeals of Missouri, Eastern District, Second Division
CARLOS A. SUBER, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Louis County Cause No.
15SL-CC02426 Honorable Michael T. Jamison.
Colleen Dolan, Judge.
A. Suber ("Movant") appeals the motion court's
denial of his Rule 24.035 motion for post-conviction relief
and request for an evidentiary hearing arguing the motion
court was without jurisdiction to revoke his probation under
§ 559.036.8, because his probationary period had
ended. The motion court found that it had the
authority to revoke Movant's probation because it had
manifested an intent to do so during the term of Movant's
probation, put Movant on notice of this intent, and made
every reasonable effort to conduct the revocation hearing
prior to the end of his probation. The court found that
Movant had not shown he was entitled to relief, and had not
pled unrefuted facts which if true would show he was entitled
to relief, and denied his request for an evidentiary hearing.
Factual and Procedural Background
January 14, 2010, Movant pleaded guilty to three counts of
first-degree assault, two Class A felonies and one Class B
felony, in violation of § 565.050. The court
sentenced him to three concurrent terms of ten years, then
suspended the execution of the sentences and placed Movant on
probation for five years. Movant was given 180 days to pay
court costs from the date of his sentencing. On January 12,
2012, Movant's probation was suspended and a capias
warrant was issued for his arrest following possible
probation violations. On March 16, 2012, Movant waived his
probation violation hearing and admitted to violating the
law. The court continued Movant on probation. On November 7,
2012, Movant was confined on a probation officer's
warrant based on Movant's violations of conditions of his
probation. No capias order suspending Movant's
probation for these alleged violations was issued by the
court. However, on November 13, 2012, the court set
Movant's bond at $100, 000.00 and scheduled a revocation
hearing for January 23, 2012.
January 23, 2012 and June 10, 2015, Movant's probation
revocation hearing was continued or re-scheduled at the
request of the parties 12 times. This was based on the
parties' mutual desire to resolve Movant's new
charges prior to holding a revocation hearing. The majority
of requests for continuances were "respectfully
submitted" by Movant's counsel and Movant did not
object when the continuances were requested by the State.
These new charges were ultimately dropped when the
State's key witness could not be located for trial. On
June 10, 2015, the court held a probation revocation hearing
and revoked Movant's probation on June 11, 2015, finding
Movant violated three conditions of his probation
(association with a convicted felon, failure to pay court
costs, and failure to pay intervention fees). On July 2, 2015,
Movant timely filed his pro se Rule 24.035 motion.
Counsel was appointed on July 28, 2015, and given an
additional 30 days to file an amended motion. The court clerk
filed the guilty plea, sentencing, and probation revocation
hearing transcripts on July 22, August 31, and October 29,
2015, respectively. On October 20, 2015, motion counsel
timely filed an amended motion for post-conviction relief.
23, 2016, the motion court entered its order and judgment
denying Movant's Rule 24.035 motion without an
evidentiary hearing. The court found it had manifested an
intent to conduct a probation revocation hearing and notified
Movant of that intent. Although the court never formally
suspended Movant's probation, the court stated that
scheduling a revocation hearing prior to the expiration of
Movant's probationary term put Movant on notice of the
court's intent. Additionally, the court found it made
every reasonable effort to hold the hearing before the
probationary term ended, and the court would have held the
hearing prior to the expiration of the probation term but for
Movant's requests and/or consent to numerous
continuances. On June 30, 2016, Movant filed a timely notice
of appeal to this Court.
Standard of Review
Court reviews the denial of a Rule 24.035 motion using a
"clearly erroneous" standard. Routt v.
State, 493 S.W.3d 904, 910 (Mo. App. E.D. 2016); Rule
24.035(k). "Findings and conclusions are clearly
erroneous if, after a review of the entire record, we are
left with the definite and firm impression that a mistake has
been made." Routt, 493 S.W.3d at 910. A movant
is entitled to an evidentiary hearing only when: (1) the
movant pleads facts, not conclusions, which if true would
warrant relief; (2) the facts alleged are not refuted by the
record; and (3) the matters at issue resulted in prejudice to
the movant. Id.; see also State v. Coates,
939 S.W.2d 912, 914 (Mo. banc 1997). Furthermore, "[a]
movant is not entitled to an evidentiary hearing if the
motion and files of the case conclusively show [he] is not
entitled to relief." Routt, 493 S.W.3d at
910-11 (citing Rule 24.035(h)); see also Coates, 939
S.W.2d at 914.
claims on appeal that the motion court clearly erred in
denying his motion for post-conviction relief because the
court lacked statutory authority to revoke his probation and
execute the previously-imposed sentences. Movant alleges this
is because the revocation occurred after his probation had
expired. Movant claims that the court did not make every
reasonable effort to conduct the revocation hearing within
the probationary period as required by § 559.036.8.
court's power to revoke a defendant's probation is
governed by § 559.036, which states a term of probation
begins the day that it is imposed. § 559.036.1. See
also State ex rel. Strauser v. Martinez, 416 S.W.3d 798,
801 (Mo. banc 2014). The court's authority to revoke a
defendant's probation if he or she violates its terms
generally only extends until the end of the probation term.
§ 559.036.8; Strauser, 416 S.W.3d at 801.
However, § 559.036.8 permits a court to extend this
authority under certain limited conditions.
The power of the court to revoke probation shall extend for
the duration of the term of probation designated by the court
and for any further period which is reasonably necessary for
the adjudication of matters arising before its expiration,
provided that some affirmative manifestation of an intent to
conduct a revocation hearing occurs prior to the expiration
of the period and that every reasonable effort is ...