STATE ex rel. CHARLES ZIMMERMAN, Relator,
THE HONORABLE DAVID DOLAN, Respondent.
PROCEEDING IN PROHIBITION
W. DRAPER III, JUDGE.
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. 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.
and Procedural History
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.
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.
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
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
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
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.
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."
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
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."
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.
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.
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.
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.
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 ...