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State ex rel. Hawley v. Spear

Court of Appeals of Missouri, Western District, Writ Division

January 23, 2018

THE HONORABLE BART SPEAR, Circuit Judge of DeKalb County, and, JULIE WHITSELL, Circuit Clerk DeKalb County Circuit Court, Respondents.


          Before: Lisa White Hardwick, Presiding Judge, Victor C. Howard and Cynthia L. Martin, Judges

          Lisa White Hardwick, Presiding Judge

         This is an original proceeding in certiorari to review the record in the case of Embrey v. Pash, Circuit Court of DeKalb County, Missouri, Case No. 17DKCC00073. In that case, the Honorable Bart Spear ("the habeas court") issued a writ of habeas corpus to Donnie Embrey ("Embrey") on October 5, 2017.

         Following the issuance of the writ of habeas corpus, the Attorney General of the State of Missouri ("Attorney General") filed a petition for writ of certiorari in this court, which we granted as a matter of right. State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001). Because we conclude that the habeas court did not abuse its discretion in granting the writ of habeas corpus, we refuse to quash the record of the habeas court.

         Factual and Procedural History

         In September 2013, Embrey pleaded guilty to one count of financial exploitation of the elderly. In January 2014, the court sentenced him to a term of 25 years in prison, but the court retained jurisdiction pursuant to Section 559.115[1]and ordered him to serve 120 days of shock incarceration in the Department of Corrections. After Embrey successfully completed the 120-day program, the court placed him on probation for a period of five years, beginning on May 22, 2014. One of the conditions of Embrey's probation was to pay restitution in the amount of $242, 000, together with interest of nine percent per annum. In its judgment, the sentencing court ordered that the monthly amount of restitution initially be set by Embrey's parole officer and continue in that amount unless modified by the court. The record does not reflect that Embrey's parole officer set a monthly amount for Embrey to pay.

         On August 7, 2014, the State filed a motion to revoke Embrey's probation. The ground stated for revocation was that Embrey failed to pay court-ordered restitution. On September 4, 2014, the sentencing court held a hearing. No evidence was presented, but counsel for the State and Embrey offered arguments. Embrey's counsel explained that Embrey had taken a job in Oklahoma but voluntarily terminated it after the employer refused to deduct taxes from Embrey's paycheck, which was one of the court's requirements. After leaving the job in Oklahoma, Embrey returned to St. Joseph to work at a pork plant. At the time of the September hearing, he was still working at the pork plant but had acquired a different job that he planned to start shortly after the hearing. Embrey's counsel asked the court's permission to allow Embrey to work for himself in addition to working for an employer, but the court would not allow it because of his criminal history of stealing from people who hired him when he was self-employed. The court set Embrey's monthly restitution payment at $4000 and scheduled a probation violation hearing for October 2, 2014.

         On October 2, 2014, Embrey waived his right to a probation violation hearing and admitted that he violated a condition of his probation by failing to pay restitution as ordered. After this hearing, the court ordered that Embrey's probation be continued and ordered additional conditions of his probation. On November 20, 2014, the sentencing court, on its own motion, issued a notice of probation violation alleging that Embrey had violated his probation by failing to pay restitution.

         The court held another probation violation hearing on December 18, 2014. The only evidence adduced by the State concerning Embrey's nonpayment of restitution was its provision of a printout, which Embrey conceded was accurate, showing that he had paid a total of $6200 in restitution since the October hearing. According to the State, as of the date of the December 2014 hearing, Embrey owed approximately $215, 300 of the original restitution amount of $242, 000.

         Embrey offered evidence of his current employment with Blue Sun St. Joe Refining. The company's human resources manager testified that Embrey began working as a full-time temporary employee at an entry level wage of $11 per hour on October 14, 2014. Embrey worked full time and overtime, which meant that he worked 12-hour shifts. The manager testified that, after Embrey's probationary period ended in mid-January 2015, he anticipated that Embrey would begin making $12 to $14 per hour.

         The court also heard arguments from both counsel. The prosecutor argued that Embrey owed "a massive amount of restitution"; that he did not know how Embrey could "possibly pay this restitution at $4, 800 a month during the course of his probation"; and that it was not "reasonable to believe" that Embrey could pay it. In response, Embrey's counsel noted that Embrey had paid over $27, 000 during the past 16 months, which included the four months in which he was serving his 120-day shock incarceration. Embrey's counsel also asserted that Embrey was using his income solely to pay restitution, while his wife was working two jobs to support them. Embrey's counsel requested that the court continue to allow Embrey to make restitution averaging approximately $2000 per month for the entire period of his probation, consider extending his probation beyond five years, and if, at the end of the probation extension the restitution was not paid, revoke his probation and send him to prison at that time. According to Embrey's counsel, Embrey indicated that he would sell "everything they own" and family members would assist him if he was unable to pay his restitution at the end of an extended probation term.

         The sentencing court stated that, if Embrey were to continue to pay restitution in the amount of $2000 per month, it would take him nine years to pay off the entire amount owed, and "there's no law in the world that allows anybody to be on probation for nine years." The court also said that, if Embrey could really pay only $2000 per month, then "somebody" should "pay a lump sum right now of $100, 000 or whatever it would be and then he pays the $2, 000 a month over that time period." At the close of the hearing, the sentencing court revoked Embrey's probation, stating:

         All right. In this case, the Court finds that the restitution has not been paid as directed. As I indicated, Mr. Embrey was ordered to pay $4, 000 per month as of October; that in October, it was shy by $200. In November, that was ...

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