Court of Appeals of Missouri, Eastern District, First Division
ROBERT E. BAN, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis Honorable
Steven R. Ohmer
S. ODENWALD, JUDGE.
E. Ban ("Ban") appeals the motion court's
denial of his Rule 24.035 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was revoked after his period of probation had expired, Ban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
and Procedural History
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.
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.
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,  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,
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.
filed an amended Rule 24.035 motion,  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.
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
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)).