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State ex rel. Zimmerman v. Dolan

Supreme Court of Missouri, En Banc

April 4, 2017

STATE ex rel. CHARLES ZIMMERMAN, Relator,
v.
THE HONORABLE DAVID DOLAN, Respondent.

         ORIGINAL PROCEEDING IN PROHIBITION

          GEORGE W. DRAPER III, JUDGE.

         Charles Zimmerman (hereinafter, "Zimmerman") seeks a writ of prohibition to prevent the circuit court from taking any further action in his probation revocation proceeding, other than to dismiss it with prejudice, contending the circuit court lacks the authority to act under section 559.036.8, RSMo Supp. 2013.[1] This Court holds the circuit court abused its discretion and exceeded its authority in holding Zimmerman's probation revocation hearing because it failed to make every reasonable effort to conduct a hearing prior to the expiration of the probationary period. The preliminary writ in prohibition is made permanent, and the circuit court is directed to discharge Zimmerman from probation.

         Factual and Procedural History

         In November 1996, Zimmerman was charged with first-degree robbery and armed criminal action for offenses that occurred in Mississippi County, Missouri. Zimmerman pleaded guilty to first-degree robbery and was sentenced to twenty years' imprisonment. The circuit court suspended the execution of Zimmerman's sentence and placed him on probation for a period of five years, commencing September 11, 1997.

         Zimmerman violated the terms of his probation while residing in Indiana. In January 2000, the circuit court issued a capias warrant for Zimmerman's arrest. Zimmerman waived extradition and was transported from Indiana to Mississippi County for a probation revocation proceeding. On May 9, 2000, the circuit court revoked Zimmerman's probation, retained jurisdiction pursuant to section 559.115, and ordered him to serve 120 days of shock incarceration. After completing shock incarceration, the circuit court placed Zimmerman on a second term of five years' probation. The circuit court permitted Zimmerman to return to Indiana after receiving reporting instructions and upon signing "an agreement to the terms of an Order of Extradition" in favor of Missouri. Zimmerman's second term of probation commenced September 8, 2000.

         In mid-September 2000, Zimmerman was charged in Indiana with armed robbery that resulted in the victim's death under a theory of accomplice liability. On January 16, 2003, a probation violation report was filed with the Mississippi County circuit court and recommended "delayed action." Zimmerman later pleaded guilty in Indiana to first-degree robbery and received a twenty-six year sentence. Zimmerman began serving the Indiana sentence in September 2003.

         On June 4, 2003, a supplemental probation violation report was filed with the Mississippi County circuit court. The docket entry contained the notation: "Capias revocation." The circuit court issued a capias warrant for Zimmerman's arrest for a probation violation resulting from the Indiana conviction.

         The docket entries next reflect that a probation violation hearing was scheduled for, and subsequently continued on, December 30, 2004. In January 2005, a probation violation hearing was scheduled and continued again with the notation: "(Need Writ)." On March 8, 2005, the cause was continued again, with the docket entry reflecting, "Cause passed for Writ." On March 9, 2005, the Mississippi County circuit clerk sent the circuit court an email asking if Zimmerman's probation should be suspended because the term was set to expire September 7, 2005. The circuit court replied, "Yes." That same day, the circuit court issued an order suspending Zimmerman's probation.

         On May 24, 2005, Zimmerman filed a pro se demand for a trial on his probation violation case. Zimmerman invoked the Interstate Agreement on Detainers, section 217.490, RSMo 2000 (hereinafter, "IAD"), and requested that the circuit court set the cause for a hearing. Zimmerman named the correctional facility where he was incarcerated in Indiana and the sentence he was serving. Zimmerman then requested a final disposition of the charges pending against him in Mississippi County and agreed to waive extradition. Zimmerman also requested counsel be appointed to assist him in resolving this matter. The circuit court took no action on any of Zimmerman's requests and did not appoint counsel.

         In December 2005, Zimmerman filed a second pro se motion requesting the charges and detainer be dismissed with prejudice for failure to comply with the IAD. Zimmerman repeated his allegations from the May 24, 2005 filing. The circuit court took no action on this motion. Zimmerman also sent a request for information regarding the active Mississippi County warrant to his caseworker in Indiana. The caseworker told Zimmerman she received a fax from the Mississippi County sheriff's department stating, "[Zimmerman] does have active warrant, however per [Jail Administrator], we will not extradite."

         On November 28, 2006, Zimmerman sent another pro se letter to the circuit court. Zimmerman informed the circuit court where he was incarcerated in Indiana and the sentence he was serving. Zimmerman noted the active warrant on his case. Zimmerman alleged he contacted the Mississippi County circuit clerk's office and the prosecutor in an attempt to resolve the warrant. Zimmerman claimed the Indiana department of corrections tried to release him temporarily from custody to resolve this matter but was unsuccessful. Zimmerman once again invoked the IAD and requested that the proper paperwork be completed to extradite him to Missouri. Zimmerman again requested counsel be appointed to help him resolve this issue. Zimmerman attached all of his IAD paperwork from Indiana to the letter. The circuit court took no action on any of Zimmerman's requests and did not appoint counsel.

         In April 2008, Zimmerman received communication from an Indiana department of corrections reentry specialist regarding the Mississippi County warrant. The reentry specialist told him, "I spoke to dispatch and was informed that the warrant is still active, but they will not extradite." This information was reaffirmed in May 2008, when a warrant status report indicated, "Per Sheriff's Department, still active but will not extradite."

         The docket entries contain no further filings until March 1, 2011, when Zimmerman filed another pro se motion to dismiss the charges and remove the detainer due to Missouri's repeated failure to comply with the IAD. Zimmerman again listed where he was incarcerated in Indiana and the sentence he was serving. Zimmerman reviewed his prior filings with the circuit court. Zimmerman averred that Indiana department of corrections classification and reentry specialists contacted the prosecutor's office repeatedly about the Mississippi County warrant. Zimmerman contended the prosecutor's office indicated it would not extradite Zimmerman, but the warrant remained active.

         On April 5, 2011, ostensibly in response to Zimmerman's motion, the circuit court ordered: "Prosecuting Attorney to prepare Writ for Sheriff's Department to pick up in Indiana. Sheriff's Office ordered to remove 'will not extradite' per notation." Despite the explicit circuit court order, the prosecuting attorney did not prepare a writ and the sheriff's department did not remove the "will not extradite" notation from its records.

         Zimmerman remained in Indiana until he was released on parole for his Indiana conviction in January 2016, after serving thirteen years' imprisonment. On January 21, 2016, the public defender's office entered its appearance on Zimmerman's behalf in the probation revocation cause. On January 25, 2016, the Mississippi County sheriff's department served Zimmerman with the June 2003 capias warrant. Zimmerman then was brought back to Mississippi County. On February 8, 2016, a probation violation report was filed, outlining the Indiana conviction that trigged the probation violation. The circuit court scheduled a probation violation hearing for March 8, 2016.

         On March 7, 2016, Zimmerman filed a petition for writ of prohibition with the court of appeals to prevent the circuit court from holding the revocation hearing, which was denied. Zimmerman then filed a writ petition with this Court.

         While this writ was pending, the circuit court held Zimmerman's probation revocation hearing because no stay was issued preventing the hearing. At the hearing, Mississippi County sheriff's department employees denied having placed the "will not extradite" notation in Zimmerman's records, claimed to have no knowledge of how it originated there and stated they were unaware of the circuit court's order to remove the notation. An Indiana extradition coordinator stated that, although Zimmerman's claim was not proper under the IAD, he regularly received "flat out writs" and released offenders into temporary custody with the requesting state to resolve these issues. The extradition coordinator testified that, in this case, he "would have probably scheduled a hearing to grant the writ, and have specifics placed on it where [Zimmerman] was housed …. [O]nce proceedings were done he would be returned to us." Zimmerman's ...


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