Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D.
Wiggins, Senior Judge
WILLIAM W. FRANCIS, JR., J.
State of Missouri ("the State") appeals the motion
court's judgment granting Richard Miller's
("Miller") pro se Rule 29.15 motion for
post-conviction relief, which asserted that the trial
in revoking Miller's probation because the revocation
took place after his probation term had expired. Finding
merit to the State's argument, we reverse and remand the
motion court's judgment for further proceedings
consistent with this opinion.
Facts and Procedural Background
underlying criminal case, the State charged Miller with two
counts of the class C felony of involuntary manslaughter in
the first degree. A two-day jury trial commenced on September
14, 2007. The evidence at trial demonstrated the following.
December 25, 2004, Miller was driving a pickup truck
southbound on Highway 63, a two-lane roadway, just outside of
Rolla. As Miller approached the Beaver Creek bridge, he
passed a couple also driving southbound. After passing the
couple, Miller stayed in the northbound lane of the highway.
Moments later, while crossing the bridge, Miller's truck
struck another vehicle head-on. The occupants of the vehicle
struck by Miller died as a result of the accident.
jury found Miller guilty as charged, and on August 29, 2007,
the trial court suspended imposition of sentence and placed
Miller on five years' probation.
26, 2012, the State filed a motion to revoke probation
asserting Miller had violated his probation on June 11, 2012,
by "being in possession of an imitation controlled
substance and drug paraphernalia[.]" On that same day,
the State sent a notice that the probation revocation hearing
was being set for August 8, 2012. Miller's probation was
due to expire on August 28, 2012.
the chronology and timing of procedural events is relevant to
the resolution of this appeal, we relate those pertinent
events as shown from the docket sheet:
June 26, 2012
Motion for Probation Revocation filed by the
Notice of Hearing for August 8, 2012, on
filed by the State.
August 3, 2012
Entry of Appearance filed by Miller's
Motion for Discovery filed by Miller's
August 8, 2012
"Per order of the court, cause passed to
August 23, 2012 at 9:00am
[sic]." Defendant ordered to
August 9, 2012
Motion for Probation Revocation filed by the
Response to Request for Disclosure filed by
the State. Notice of hearing filed by the
August 14, 2012
Probation Violation Hearing scheduled for
August 23, 2012.
Entry of Appearance filed by Miller's new
August 17, 2012
Motion to Withdraw filed by Miller's
August 23, 2012
"Case reset for probation violation
hearing on October 3, 2013 at
9:00am. [sic] Defendant is ordered to
appear." "Hearing Continued From:
23-Aug-2012; 9:00 AM."
October 3, 2012
"Hearing Continued From: 03-Oct-2012;
October 16, 2012
Probation Violation Hearing Scheduled for
December 5, 2012.
October 18, 2012
Amended Motion for Probation Revocation filed
by the State.
December 5, 2012, a probation revocation hearing was held.
Prior to the hearing, the trial court addressed the issue of
whether the trial court retained jurisdiction based on the
timing of the revocation hearing. The following colloquy then
THE COURT: There was a question about whether or not there
was a necessity for a suspension. We looked up some case law,
and it states that there must be a clear manifestation of an
intention to revoke. The motion to revoke did that. And,
secondly, that there was an attempt to get the matter set,
reasonable efforts made to get it resolved prior to the
expiration of five years.
I went back through the file. This matter has been set at
least once, if not twice. Was continued by agreement without
objection past the date - and specifically to today.
first of all, do the attorneys agree that that's
what's transpired up to this point?
[THE STATE]: The State so stipulates, your Honor.
THE COURT: [Miller's attorney]?
[MILLER'S ATTORNEY]: Yes, your Honor.
THE COURT: The oral motion to dismiss filed in these
proceedings earlier this morning then is denied. I'm of
the opinion that the State's manifest and clear intent,
reasonable efforts were made. It passed the five years by
agreement of [Miller]; therefore, this Court has not lost
attorney then announced that Miller was going to "admit
to those . . . allegations stated in the motion to revoke[,
]" that there was "actually three separate
misdemeanors ranging back to 2008 through 2012, and those
cases have been finalized in municipal or associate
court." Miller admitted to the trial court that he
violated the terms of his probation by virtue of the 2008,
2009, and 2012 charges of which he was either found guilty or
voluntarily plead guilty to, and that currently, there were
no pending charges against him.
trial court sentenced Miller to five years in prison on each
count, with the sentences to run consecutively, for a total
of ten years. Miller appealed his convictions and sentences,
and they were affirmed by this Court on October 21, 2014.
State v. Miller, ...