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Ban v. State

Court of Appeals of Missouri, Eastern District, First Division

July 17, 2018

ROBERT E. BAN, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Steven R. Ohmer

          KURT S. ODENWALD, JUDGE.

         Introduction

         Robert E. Ban ("Ban") appeals the motion court's denial of his Rule 24.035[1] motion without an evidentiary hearing. After a checkered probation history, the circuit court revoked Ban's probation and ordered the execution of his sentence. In his sole point on appeal, Ban argues that the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because the circuit court lacked the necessary authority to revoke his probation. Because the record refutes Ban's claim that his probation was revoked after his period of probation had expired, Ban failed to establish clear error. We affirm the motion court's judgment.

         Factual and Procedural History

         The State charged Ban, as a prior and persistent offender, with one count of first-degree tampering, one count of resisting arrest, and one count of resisting a lawful detention. Ban pleaded guilty to first-degree tampering and resisting arrest on February 3, 2012. The State dismissed the remaining charge. The circuit court sentenced Ban to ten years in prison for first-degree tampering and seven years in prison for resisting arrest, and ordered the sentences to run concurrently, but consecutively with a sentence imposed on Ban in a different proceeding. That same day, the circuit court suspended the execution of Ban's sentences and placed him on probation for five years.

         Ban's probation was eventful. A probation officer filed a probation violation report on October 3, 2012. Subsequently, the circuit court suspended Ban's probation from February 20, 2013 to April 11, 2014; June 17, 2014 to July 25, 2014; September 5, 2014 to September 19, 2014; January 29, 2015 to April 10, 2015; and June 2, 2015 until the probation's revocation. On May 18, 2015, the State moved to revoke Ban's probation. After suspending Ban's probation on June 2, 2015, the circuit court eventually scheduled a probation-violation hearing for February 26, 2016.

         One day before the scheduled hearing, Ban moved the circuit court to discharge him from probation, alleging that his probationary term had already expired. Ban reasoned that, after accounting for his earned compliance credits accumulated under Section 217.703, [2] his optimal discharge date was October 11, 2015. Ban maintained that the circuit court therefore lacked authority under Section 559.036 to revoke his probation after that date. At the hearing, Ban's probation officer explained that, "[a]bsent a motion to revoke, the optimal date for discharge was October 11, 2015." The State, because of the motion's timing, requested the opportunity to address Ban's argument that the circuit court lost jurisdiction to revoke his probation. The circuit court rescheduled the probation-violation hearing for May 20, 2016.

         At the May 20, 2016 hearing, the circuit court considered and denied Ban's lack-of-authority argument. The circuit court then continued the probation-violation hearing to May 23, 2016. At the hearing, the probation officer testified that Ban violated his probation on at least eight occasions. The probation officer also offered a computer-generated printout purportedly showing Ban's accumulation of sixteen months of earned compliance credit. The probation officer later clarified that Ban would receive sixteen months of earned compliance credit unless his probation was revoked or suspended. The circuit court then revoked Ban's probation and ordered the execution of his sentences.

         Ban filed an amended Rule 24.035 motion, [3] arguing that, by operation of Sections 217.703 and 559.036, his probation expired on October 11, 2015. According to Ban, the circuit court failed to make every reasonable effort to conduct a probation-revocation hearing prior to October 11, 2015 and lacked authority to revoke his probation on May 23, 2016. Ban requested an evidentiary hearing. The motion court denied Ban's motion without an evidentiary hearing, finding that the circuit court had the requisite authority to revoke Ban's probation. Ban appeals.

         Standard of Review

         We review a motion's court denial of a Rule 24.035 motion to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.O35(k); Taylor v. State, 392 S.W.3d 477, 485 (Mo. App. W.D. 2012). The motion court's findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, "we are left with a definite and firm impression that a mistake has been made." Robinson v. State. 509 S.W.3d 811, 813 (Mo. App. E.D. 2016). We presume that the motion court's findings and conclusions are correct. Rueger v. State, 498 S.W.3d 538, 542 (Mo. App. E.D. 2016). To overcome that presumption, the movant has the burden to show clear motion-court error by a preponderance of the evidence. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).

         Not all Rule 24.035 motions require an evidentiary hearing. Rule 24.035(h); see Harris v. State, 494 S.W.3d 647, 649 (Mo. App. E.D. 2016). "A movant is entitled to an evidentiary hearing only when: (1) the movant pleads facts, not conclusions, which if true would warrant relief; (2) the facts alleged are not refuted by the record; and (3) the matters at issue resulted in prejudice to the movant." Suber v. State, 516 S.W.3d 386, 388 (Mo. App. E.D. 2017). Additionally, "[a] movant is not entitled to an evidentiary hearing if the motion and files of the case conclusively show [he] is not entitled to relief" Id. (quoting Routt v. State, 493 S.W.3d 904, 910-11 (Mo. App. E.D. 2016)).

         Point ...


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