Court of Appeals of Missouri, Eastern District, Second Division, Writ
STATE ex rel. MICHAEL CALDWELL, Relator,
HONORABLE STEVEN R. OHMER, Respondent,
Mandamus Circuit Court of the City of St. Louis Cause No.
LAWRENCE E. MOONEY, RESIDING JUDGE.
relator, Michael Caldwell, seeks a writ of mandamus ordering
the respondent, Judge Steven R. Ohmer, to reinstate his
probation and send him to a 120-day program, rather than
revoking his probation and ordering execution of his
previously imposed and suspended sentence. Because Mr.
Caldwell has a clear, unequivocal, specific right to a
program, and because the circuit court has the unconditional
duty to order Mr. CaldwelPs placement in such a program, we
issue a permanent writ of mandamus.
Caldwell pleaded guilty in June of 2014 to possessing a
controlled substance, in violation of Section 195.202 RSMo.
The circuit court sentenced Mr. Caldwell, as a prior and
persistent offender and a prior drug offender, to ten
years' imprisonment in the Missouri Department of
Corrections. The circuit court suspended execution of the
sentence and placed Mr. Caldwell on probation for two years.
Nearly two years later, in April of 2016, on the probation
board's recommendation, the circuit court extended Mr.
CaldwelFs probation for three additional years, to June 11,
January of 2017, the circuit court suspended Mr.
Caldwell's probation for violating the conditions of his
probation regarding drugs and supervision strategy. Mr.
Caldwell waived an evidentiary hearing and admitted that he
had violated the conditions of his probation. Although Mr.
Caldwell waived an evidentiary hearing on revocation of his
probation, he specifically and consistently requested
placement in a 120-day program, rather than having his
probation revoked and the prison sentence executed. The
circuit court, however, revoked Mr. Caldwell's probation
and ordered the execution of the previously-imposed sentence
often years' imprisonment.
Caldwell now seeks a writ of mandamus. He contends that under
Section 559.036.4, which governs the duration of probation,
he has the right to be continued on probation and participate
in a 120-day program, and correspondingly, that the circuit
court had a duty to order him into that program instead of
revoking his probation and executing the previously-imposed
sentence. The Assistant Circuit Attorney, on behalf of Judge
Ohmer, and in response to Mr. Caldwell's writ petition,
states that Mr. Caldwell "appears eligible for a 120-day
program under Section 559.036." Judge Ohmer requests
that we remand the cause to the circuit court for further
proceedings. We dispense with further briefing and oral
arguments as permitted by Rule 84.24(i).
Court has the authority to "issue and determine original
remedial writs, " including the extraordinary writ of
mandamus. Mo. Const, art. V, sec. 4.1; State ex rel
Hewitt v. Ken\ 461 S.W.3d 798, 805 (Mo. banc 2015).
"A litigant asking relief by mandamus must allege and
prove that he has a clear, unequivocal, specific right to the
thing claimed" as well as a corresponding present,
imperative, and unconditional duty on the part of the
respondent to perform the action sought." State ex
rel McKee v. Riley, 240 S.W.3d 720, 725 (Mo. banc 2007);
Beauchamp v. Monarch Fire Protection District, 471
S.W.3d 805, 810 (Mo. App. E.D. 2015).
Caldwell contends that Section 559.036.4 requires his
placement in a 120-day program. Section 559.036.4 authorizes
placement in a 120-day program if certain conditions are met.
The Circuit Attorney's office, on behalf of Judge Ohmer,
agrees that Mr. Caldwell meets all the conditions for
placement in a 120-day program. With those conditions
satisfied, Section 559.036.4 clearly and unambiguously
requires that the court order placement of Mr. Caldwell in
one of the Department of Corrections' 120-day programs.
Caldwell has shown an unequivocal right to placement in a
program. The circuit court has the corresponding
unconditional duty to order Mr. CaldwelPs placement in such a
program. We thus grant Mr. Caldwell's request, and issue
our writ of mandamus. The respondent is directed to follow
the dictates of Section 559.036.4 and order placement of Mr.
Caldwell in one of the Department of Corrections' 120-day
M DOWD, CJ and GARY M GAERTNER, JR, J, concur