FROM THE CIRCUIT COURT OF PULASKI COUNTY The Honorable John
D. Wiggins, Judge
PATRICIA BRECKENRIDGE, JUDGE
state appeals from the motion court's judgment sustaining
Richard Miller's Rule 29.15 motion for postconviction
relief and vacating the revocation of his probation and
imposition of sentences on two counts of involuntary
manslaughter, under section 565.024, RSMo 2000. On appeal,
the state claims the motion court clearly erred in finding
the trial court was without authority to revoke Mr.
Miller's probation and to sentence him because the record
reflects every effort was made to conduct the revocation
hearing prior to the expiration of his probation term.
Because the record refutes Mr. Miller's claim the trial
court failed to make every reasonable effort to hold his
probation revocation hearing prior to the expiration of his
probation term, the motion court clearly erred in granting
Mr. Miller postconviction relief. The motion court's
judgment is reversed.
Factual and Procedural Background
December 25, 2004, Richard Miller was traveling southbound on
a two-lane stretch of Highway 63 near Rolla. As Mr. Miller
approached a bridge, he pulled into the northbound lane to
pass a vehicle traveling the speed limit. After he passed the
car, Mr. Miller continued traveling south in the northbound
lane, even as he entered a no-passing zone and "blind
curve" approaching the bridge. As he crossed the bridge,
he struck a northbound vehicle head-on. The couple riding in
that vehicle were killed as a result of the collision.
Miller was charged with two counts of involuntary
manslaughter in the first degree, and, on September 15, 2007,
a jury found him guilty as charged. On August 29, 2007, the
trial court suspended imposition of sentence and placed Mr.
Miller on probation for a term of five years.
26, 2012, the state filed a motion to revoke Mr. Miller's
probation asserting he violated his probation by committing
the class A misdemeanors of being in possession of an
imitation controlled substance and drug paraphernalia. Mr.
Miller's probation revocation hearing was initially set
for a hearing on August 8, 2012. On August 3, a public
defender entered his appearance in the case. At the August 8
hearing, the appointed public defender announced his office
had a conflict with representing Mr. Miller, and the trial
court continued the hearing to August 23. Thereafter, he
withdrew, and, on August 14, a second public defender entered
his appearance as counsel for Mr. Miller.
August 23, 2012, the probation revocation hearing was
continued to October 3. A memorandum filed with the trial
court stated: "Case reset for Probation Violation
Hearing on October 3, 2012 @ 9 am. Defendant is ordered to
appear."  The memorandum was signed by an assistant
prosecuting attorney, Mr. Miller's counsel, and the trial
court. Mr. Miller's term of probation expired August 28,
and he received a letter advising he had been discharged from
supervision by the board of probation and parole.
October 3, Mr. Miller and his counsel appeared for the
probation revocation hearing. The hearing was continued, on
the state's motion and without objection from Mr. Miller,
and reset for December 5, 2012. A memorandum was filed
memorializing the appearances and continuance signed by the
assistant prosecuting attorney, Mr. Miller's counsel, and
the trial court. On October 19, 2012, the state filed an
amended motion to revoke Mr. Miller's probation, alleging
two additional probation violations. In the amended motion,
the state alleged, in 2008, Mr. Miller was found guilty of
domestic assault in the third degree, and, in 2009, he was
found guilty of driving with a revoked license.
Miller's probation revocation hearing was ultimately held
on December 5, 2012. During the hearing, Mr. Miller orally
moved for dismissal on the ground the trial court no longer
had statutory authority to revoke his probation because his
probation term had expired. The trial court addressed whether
it retained authority to hear the matter despite the
expiration of his probation term:
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: [Mr. Miller's counsel]?
[MILLER'S COUNSEL]: 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 [Mr. Miller]; therefore, this Court has not lost
revocation hearing continued, and Mr. Miller admitted to the
trial court he violated his probation by being found guilty
of three misdemeanors - driving while revoked, domestic
assault in the third degree, and possession of drug
paraphernalia. The state presented impact testimony from the
family of the two victims killed in the head-on collision.
The trial court then found Mr. Miller had violated his
probation. Thereafter, on February 3, 2013, the trial court