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Miller v. State

Court of Appeals of Missouri, Southern District, Second Division

September 19, 2017

RICHARD MILLER, [1] Respondent,

         APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D. Wiggins, Senior Judge


          WILLIAM W. FRANCIS, JR., J.

         The State of Missouri ("the State") appeals the motion court's judgment granting Richard Miller's ("Miller") pro se Rule 29.15[2] motion for post-conviction relief, which asserted that the trial court3] erred 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

         In the 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.

         On 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.

         The 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.

         On June 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.

         Because 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 State.

Notice of Hearing for August 8, 2012, on probation revocation,

filed by the State.

August 3, 2012

Entry of Appearance filed by Miller's counsel.

Motion for Discovery filed by Miller's counsel.

August 8, 2012

"Per order of the court, cause passed to August 23, 2012 at 9:00am

[sic]." Defendant ordered to appear."

August 9, 2012

Motion for Probation Revocation filed by the State[4]

Response to Request for Disclosure filed by the State. Notice of hearing filed by the State.

August 14, 2012

Probation Violation Hearing scheduled for August 23, 2012.

Entry of Appearance filed by Miller's new attorney.

August 17, 2012

Motion to Withdraw filed by Miller's former attorney.

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; 9:00 AM."

October 16, 2012

Probation Violation Hearing Scheduled for December 5, 2012.

October 18, 2012

Amended Motion for Probation Revocation filed by the State.[5]

         On 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 took place:

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.

         So, 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 jurisdiction.

         Miller's 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.

         The 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, ...

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