STATE EX REL. TRAVIS JONES, Relator,
THE HONORABLE ERIC EIGHMY, Respondent.
ORIGINAL PROCEEDING IN PROHIBITION
Denvir Stith, Judge.
Jones seeks a writ prohibiting the circuit court from holding
a probation revocation hearing. He contends the circuit court
failed to make every reasonable effort to hold his probation
revocation hearing prior to the expiration of his term of
probation and has lost authority to do anything other than
order his discharge from probation. This Court agrees. While
the circuit court gave timely notice of an intent to hold a
probation revocation hearing and scheduled the hearing for a
date within the term of probation, it failed to make every
reasonable effort to bring Mr. Jones before the court before
the term expired. Aware that he was being held in jail in a
nearby county, neither the court nor the prosecutor made any
attempt to bring Mr. Jones before the court by issuing a writ
of habeas corpus ad testificandum or ad
prosequendum as it did some nine months later after his
probationary term already had expired. Accordingly, it has
lost the power to revoke his probation. The writ is made
permanent, and the circuit court is ordered to discharge Mr.
Jones from probation.
FACTUAL AND PROCEDURAL BACKGROUND
2014, Mr. Jones pleaded guilty to one count of felonious
restraint. On December 11, 2014, the circuit court sentenced
him to ten years in prison but suspended execution of his
sentence and placed him on five years' probation, which
meant his initial date for release from probation was
December 10, 2019.
offender's release date can be shortened by the
accumulation of earned compliance credits (ECCs). The
division of probation and parole's award of ECCs reduces
the probationary term "by thirty days for each full
calendar month of compliance with the terms of
supervision." § 217.703.3. An offender is deemed to be
in compliance in any calendar month in which there is not
"an initial violation report submitted by a probation or
parole officer … or a motion to revoke or motion to
suspend filed by a prosecuting or circuit attorney, against
the offender." § 217.703.4; State ex rel.
Coleman v. Horn, 568 S.W.3d 14, 19 (Mo. banc 2019),
quoting, State ex rel. Parrott v. Martinez, 496 S.W.3d
563, 569 (Mo. App. 2016) ("Compliance 'is not
defined as the strict fulfillment of each and every term of
probation in a given month but is defined as the absence of
an initial violation report or a motion to revoke or
suspend.'"). "At least twice a year, the division
shall calculate the number of months the offender has
remaining on his or her term of probation, parole, or
conditional release, taking into consideration any earned
compliance credits, and notify the offender of the length of
the remaining term." § 217.703.9. Based on this
calculation, probation and parole informs the offender and
the court of the offender's earned discharge date, which
is the date under existing circumstances by which the
offender has earned release from supervision even if he or
she does not accrue any more months of ECCs. Id.; see Ban
v. State, 554 S.W.3d 541, 547 (Mo. App. 2018).
Jones was first eligible to earn ECCs under section 217.703.3
in February 2015. Throughout 2015 and the beginning of 2016,
Mr. Jones accrued ECCs in all but the three months in which
probation violation reports were filed - February 2015, April
2015, and June 2016. In July 2016, after his third probation
violation report was filed, prosecutors filed a motion to
revoke his probation. The court held a probation revocation
hearing and decided to continue Mr. Jones on probation but
ordered him to complete 120 days of "shock time" in
the Taney County jail.
Mr. Jones continued to serve his probation and continued
earning ECCs until June 2017, when a new probation violation
report was filed. Finally, in August 2017, Mr. Jones received
two additional probation violation reports. The August 2017
violation reports state Mr. Jones violated his probation by
committing unrelated charges and was being held in jail in
neighboring Barry County. They set out Mr. Jones'
calculated earned discharge date as December 20, 2017.
on the August 2017 probation violation reports, the
prosecutor filed a new motion to revoke probation. The
circuit court set a hearing on the motion for September 28,
2017, issued a capias warrant for Mr. Jones' arrest, and
appointed counsel. But the prosecutor did not seek, and the
circuit court did not issue, a writ of habeas corpus ad
testificandum or ad prosequendum or, so far as
the record shows, make any other attempt to bring Mr. Jones
before the court for the hearing. As Mr. Jones was
incarcerated in the Barry County jail at the time of the
hearing, he did not appear. The court made a docket entry on
September 28, 2017, stating: "Deft fails to appear -
warrant already in place."
Mr. Jones' earned discharge date of December 20, 2017,
clearly calculated by probation and parole and set out in the
record before the court, no action was taken for the next
nine months. Notably, the court did not set another hearing
prior to Mr. Jones' discharge date nor direct the
prosecutor to locate Mr. Jones despite the record stating he
was being held in Barry County jail. Matters remained
unresolved until finally, in June 2018, Mr. Jones decided to
contact the circuit court himself and ask it to revoke his
probation and give him credit for time served, resulting in
his release. After receiving this motion, the prosecutor
finally requested, and the circuit court issued, a writ of
habeas corpus ad prosequendum, which brought Mr.
Jones to Taney County so he could attend a finally scheduled
probation revocation hearing.
counsel for Mr. Jones then filed a motion for discharge from
probation, arguing the circuit court had no authority to
revoke his probation as the probationary term had already
expired due to the accrued ECCs. When the circuit court
nonetheless scheduled a probation revocation hearing, Mr.
Jones filed a petition for a writ of prohibition or mandamus
with the court of appeals and then with this Court. This
Court issued its preliminary writ, which it now makes
STANDARD OF REVIEW
appellate court will issue a writ of prohibition to "(1)
prevent the usurpation of judicial power when a lower court
lacks authority or jurisdiction; (2) remedy an excess of
authority, jurisdiction or abuse of discretion where the
lower court lacks the power to act as intended; or when (3) a
party may suffer irreparable harm if relief is not
granted." State ex rel. Merrell v. Carter, 518
S.W.3d 798, 799 (Mo. banc 2017) (internal quotation omitted).
Writ relief is appropriate if a circuit court has lost
authority to conduct a probation revocation hearing.
Amorine, 490 S.W.3d at 376. The probationer
"bears the burden of demonstrating the circuit court
failed to make every reasonable effort to conduct the
probation revocation hearing prior to the expiration of the
probationary period." State ex rel. Zimmerman v.
Dolan, 514 S.W.3d 603, 608 (Mo. banc 2017).
THE CIRCUIT COURT DID NOT MAKE EVERY REASONABLE EFFORT TO
CONDUCT A PROBATION VIOLATION HEARING BEFORE MR. JONES'
EARNED DISCHARGE DATE
Jones contends that he is entitled to a writ prohibiting the
circuit court from conducting a probation violation hearing
because no such hearing was held before his earned discharge
date and the circuit court failed to make every reasonable
effort to conduct a probation violation hearing before that
requirements for the award of ECCs are not discretionary.
Section 217.703.3 provides, "Credits
shall begin to accrue for eligible offenders
after the first full calendar month of supervision" in
which the offender is in compliance (emphasis added). Any
month in which individuals are not in compliance, credits do
not accrue, but "[i]f no hearing is held … then
the offender shall be deemed to be in compliance ...