SUPREME COURT OF MISSOURI en banc

STATE ex rel. AMY STRAUSER, ) ) Relator, ) v. ) No. SC93340 ) THE HONORABLE SANDY MARTINEZ, ) ) Respondent. ) (consolidated with) STATE ex rel. SHAR ON EDMONDS, ) ) Relator, ) v. ) No. SC93345 ) THE HONORABLE SANDY MARTINEZ, ) ) Respondent. )
ORIGINAL PROCEEDI NG IN PROHIBITION Opinion issued January 14, 2014 Amy Strauser and Sharon Edmonds (“Defend ants”) each seek a writ of prohibition to prevent the trial court from holding proba tion revocation hearings after their probation terms ended. The Defendants argue in each ca se that the trial court did not have the authority to hold the revocation hearings be cause their probation terms had ended and the court did not make every reasonable effort to hold the hearings during their probation terms pursuant to section 559. 036.8, RSMo Supp. 2012. Be cause they present identicallegal issues, the cases are c onsolidated for opinion. In the separate underlying criminal actions, the Defendants each received a suspended imposition of sentence and were pl aced on five-year terms of probation with the condition they make either restitution pa yments or pay court costs. When each defendant failed to make the required payments, the trial court suspended probation and scheduled revocation hearings. Instead of issuing a ruling at the hearings, the court continued to conduct case revi ews until after each defendant’ s probation term ended. This Court makes its prelim inary writs permanent becaus e it finds that, in each case, the trial court did not have the authority to hold the revocatio n hearings after the Defendants’ probation terms e nded because it did not make every reasonable effort to hold the hearings during the probation te rms pursuant to section 559.036.8. Procedural and Factual History On June 4, 2007, Amy Strauser pleaded guilty to one count of theft/stealing, a class C felony. The trial court suspende d the imposition of sentence, placed her on probation for five years and or dered her to pay $8,398.78 in restitution. On August 22, the State filed a motion to revoke and suspend probation. While the basis for this motion is unclear from the docket entries, the par ties agreed during oral arguments that it was due to her failure to make restitution payments. The trial court held a hearing on the Stat e’s motion on September 10. At that time, the trial court passed the cause to October 1 a nd ordered Strauser to pay $100 each month toward her restitution. It passed the cause again until November and ordered Strauser to continue her restitution payments. She appear ed in person in the trial court 26 moretimes between November 2007 and Septembe r 12, 2011. For each appearance, the docket entries state that either a case review was held or the hearing was continued or rescheduled. On September 12, the trial court suspende d Strauser’s probation and ordered her to continue making restitution payments. St rauser appeared five more times between September 2011 and March 5, 2012. Each a ppearance was again labeled as either a case review or a continuation of the hearing. On March 5, the trial court scheduled a probation violation hearing for April 2, 2012. However, the docket entry for April 2 is labeled as a case review, and the trial c ourt passed the cause un til May 7 and ordered Strauser to continue making restitution payments. From May 7, 2012, through Fe bruary 4, 2013, Strauser a ppeared 10 more times in the trial court for case reviews. On February 4, the trial court appointed a public defender and scheduled a probation viola tion hearing for March 4. Strauser appeared a total of 37 times between when the revoc ation hearing initially was sc heduled and June 4, 2012, when her probation ended. She appeared eigh t times between June 4, 2012, and February 4, 2013. Strauser now seeks this writ of prohibition to prevent the trial court from holding a probation revocation hear ing, arguing that the trial c ourt is acting outside of its statutory authority because her pr obation ended on June 4, 2012. 1

1 Defendants argue that the trial court lacks ju risdiction to hold the revocation hearings. In J.C.W. ex rel. Webb v. Wyciskalla , this Court determined that there were only two types of jurisdiction in Missouri circu it courts: personal and subject matter. 275 S.W.3d 249, 254 (Mo. banc 2009). Defendants’ claims ar e characterized more precisely as the trial court exceeded its statutory authority. See State ex rel. Whittenhall v. Conklin , 294 S.W.3d 106, 108 n.2 (Mo. App. 2009). 3The facts in Sharon Edmonds’ case are ve ry similar. She pleaded guilty to two counts of manufacturing a controlled substa nce, a class B felony, and one count of possessing a controlled substance, a class C felo ny. On September 4, 2003, the trial court suspended the imposition of sentence, placed her on probation for five years and assessed court costs against her. On July 21, 2008, th e trial court suspended Edmonds’ probation for failure to pay court costs. On September 4, 2008, the la st day of her probation, the court held a probation violation hearing, ordered her to pay $55 per m onth. Between September 4, and January 7, 2013, the trial court continue d the hearing and Edmonds appeared in court either in person or through counsel on 22 occasions. For each appearance, the docket entry is labeled as either a case review or a hearing to monitor payments. On January 9, 2013, Edmonds filed a motion to discharge probation in the trial court. She argued that the court lost aut hority to revoke her probation because her probation term ended and the court did not ma ke every reasonable effort to conduct the hearing while she was still on pr obation. The court overrule d the motion. Edmonds now seeks this writ of prohibition. Jurisdiction and Standard of Review This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4. A writ of prohibition is appropriate: (1) to prevent the usurpati on of judicial power when a lower court lacks author ity or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where th e lower court lacks the power to act as

4intended; or (3) where a party may suffer irre parable harm if relief is not granted. State ex rel. Mo. Pub. Defend er Comm’n v. Pratte , 298 S.W.3d 870, 880 (Mo. banc 2009). Trial Court’s Authority to Revoke Probation At issue in these cases is whether the tr ial court made every reasonable effort to conduct hearings on pending probation revo cation motions prior to the expiration of Defendants’ probation so as to have the au thority to conduct the hearings after their probation terms ended unde r section 559.036.8. Section 559.036 2 governs the duration of probation terms and the power of a court to revoke a defendant’s probation. A term of probation begins th e day it is imposed. Section 559.036.1. If a defendant violates his or her probation, the court may revoke it. Sections 559.036.3, 559.036.5. But the court’s authority to do so only extends through the duration of the probation term. Section 5 59.036.8. When the probation term ends, so does the court’s authority to revoke probation. State ex rel. Stimel v. White , 373 S.W.3d 481, 484 (Mo. App. 2012). Section 559.036.8 allows the court to extend this author ity if certain conditions are
met. It states: The power of the court to re voke probation shall extend for the duration of the term of pr obation designated by the court and for any further period whic h is reasonably necessary for the adjudication of matters ar ising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occu rs prior to the expiration of

2 All references are to RSMo Supp. 2012. Wh ile section 559.036 has been amended multiple times since Defendants were placed on probati on, the relevant stat utory language has not changed. Before the amendments, the relevant language was in 559.036.6. See section 559.036.6, RSMo 2000. It is now in 559.036.8. See section 559.036.8, RSMo Supp. 2012. 5the period and that every reasona ble effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period. In effect, this section sets out two conditio ns under which a court may revoke probation after a probation term has ended. First, th e court must have manifested its intent to conduct a revocation hearing during the prob ation term. Second, it must make every reasonable effort to notify the probationer an d hold the hearing before the term ends. See Stelljes v. State , 72 S.W.3d 196, 200 (Mo. App. 2002). Unless the court meets both of these conditions, it cannot hold a revoca tion hearing after probation expires. 3 In the present cases, the trial court manifested its intent to conduct the revocation hearings before the Defendants’ proba tion terms ended, and the Defe ndants were notified. At

3 The State argues that the trial court also re tains the authority to impose a sentence after a probation term ends by suspending the imposition of sentence, relying on State ex rel. Connett v. Dickerson , 833 S.W.2d 471 (Mo. App. 1992). This argument is misplaced. In Connett , the trial court revoked the defendant’s first probation term and placed him on a second five-year probation term, but did not impose a sentence. Id. at 472. The court of appeals determined that because the trial court did not impose a new sent ence on the defendant, it “in effect” continued his probation pursuant to sect ion 559.036.3, as opposed to discha rging the defendant from probation. Id. at 475. Connett is not instructive as the trial c ourt in the present cases did not revoke the Defendants’ probation. Nor does Connett stand for the proposition that a court may circumvent the requirements of section 559.036.8 by suspending the imposition of sentence. Likewise, suspending probation without deci ding whether probation should be revoked, as the trial court did in each of these cases, does not relieve a court from meeting both of the conditions provided by section 559.036.8. While a court may suspend probation upon a motion to revoke, the suspension ca nnot last indefinitely. See section 559.036.7; Starry v. State , 318 S.W.3d 780, 784-85 (Mo. App. 2010); State ex rel. Limback v. Gum , 895 S.W.2d 663, 665 (Mo. App. 1995). Rather, probation will remain suspended only until the court rules on the revocation motion . Section 559.036.7 (emphasis added). This section makes it incumbent on the court to rule on a pending revocation motion. Further, statut ory provisions are not read in isolation, but are construed together. See Bachtel v. Miller Cnty. Nursing Home Dist. , 110 S.W.3d 799, 801 (Mo. banc 2003). When sections 559.036.7 and 559.036.8 are read together, it is clear that a court must rule on the revocation motion before th e probation term ends unless it meets the two conditions outlined in the statute. 6issue here is whether it made every reasonabl e effort to conduct the revocation hearings during the Defendants’ probation terms. Application to Strauser and Edmonds Strauser’s five-year probation, which was imposed on June 4, 2007, ended on June 4, 2012. During this period, the trial court manifested its intent to conduct the revocation hearing by suspending her probation after the State filed a motion to revoke and scheduling a revocation hearin g for September 10, 2007. See State v. Roark , 877 S.W.2d 678, 680 (Mo. App. 1994) (finding a manifesta tion of intent where trial court scheduled a revocation hearing for a date prio r to the expiration of probation); White , 373 S.W.3d at 485 (noting that “the issuance of a warrant, the filing of a motion to revoke probation, [or] the scheduling of a revoca tion hearing” will suffice as a manifestation of intent). Instead of ruling on the motion, howeve r, the trial court con tinued the hearing 37 times in between when it scheduled the in itial revocation hearing and when Stauser’s probation ended. Strauser always appeared and made the required restitution payments. She also appeared eight more times for case reviews after her probation ended. Because the trial court could have ruled on the revocation motion on any of these numerous occasions, but chose not to, it did not make ev ery reasonable effort to hold the hearing during her probation term to satisfy section 559.036.8. Edmonds’ case follows a very similar analysis. She was fi rst placed on a five-year probation term on September 4, 2003, which ended on September 4, 2008. The trial court manifested its intent to hold a revo cation hearing when it suspended her probation on July 21, 2008, and schedu led a revocation hearing for September 4, 2008. Even 7though she appeared in court that day, the trial court did not issue a ruling. Instead, it held 23 continuations of the hearing or cas e reviews from September 4 until February 4, 2013. The trial court did not make every reasonable effort to conduct the revocation hearing during Edmonds’ probation term be cause it had the oppo rtunity to hold the hearing on September 4, 2008, but instead c ontinued the case for mo re than four years after her probation ended. Relying on Petree v. State , 190 S.W.3d 641 (Mo. App. 2009), the State argues that the Defendants are not entitled to relief becaus e they did not show they were ready to proceed with the hearing du ring their probation. In Petree , like the instant cases, the defendant was placed on a fi ve-year probation term. Id. at 642. Prior to the expiration of the probation term, the court held a revoc ation hearing, but Petree requested a continuance to obtain counsel. Id. The court continued the he aring until five months after the probation expired, at whic h time it revoked his probation. Id. On appeal, Petree argued the trial court did not make every reason able effort to hold th e hearing before his probation expired. Id. The court of appeals noted, howe ver, that Petree himself asked for the continuance and that the lower court held the hearing as soon as his counsel entered
an appearance. Id. at 643. The instant cases are clearly distinguishab le because the record does not indicate that either Strauser or Edmonds requested the continuances, nor was it their duty to ensure the trial court ruled on the pending revocation motions. Nothing in section 559.036.8 suggests that the defendant must pr ove he or she is ready to proceed. Rather,

8the language clearly states that the “power of the court” to hold a revocation hearing only extends beyond a probation term if the tw o conditions listed in the statute are met. 4 A more factually analogous ca se to the present cases is State ex rel. Whittenhall v. Conklin , 294 S.W.3d 106 (Mo. App. 2009). In that case, like in th e instant cases, the defendant was placed on a five-year proba tion term with the condition he make restitution payments. Id. at 107. He failed to make all required payments and appeared at a revocation hearing one week pr ior to the end of his probation. Id. Instead of issuing a ruling, the trial court continued to reset th e hearing date until appr oximately three years after the probation ended. Id. at 110. In reviewing the trial court’s action, the court of appeals found that the trial court exceeded its authority to revoke the defendant’s probation. Id. at 111. Likewise in these cases, the trial court could have held the revocation hearings when Strauser and Edmonds appeared during their probation terms, but instead it continued the hearings until well after their pr obation terms expired. The trial court did

4 Section 559.036.8 also does not require the Defenda nts to show prejudice, as the State contends they must. The State relies on State ex rel. Carlton v. Haynes , 552 S.W.2d 710, 714-15 (Mo. banc 1977), which states that a court does not lose authority to hold a probation revocation hearing after a probation term expired “unless the resulti ng delay was unreasonable and prejudicial to the petitioner.” This argument is incorrect for two reasons. First, Carlton was decided before section 559.036 was in effect. Second, it conflates “unreasonable delay” and “every reasonable effort.” If a defendant clai ms he was harmed by “an unreasonable delay” in holding a revocation hearing, then he would have to show he was prejudiced by that delay. See Ewing v. Wyrick , 535 S.W.2d 442 (Mo. banc 1976) (noting that , in a case in which the court held a revocation hearing within the defendant’s probati on term, “petitioner is not entitled to relief by reason of . . . any delay in holding the final [probation] revocation hearing unless he was prejudiced thereby.”)

. At issue in the present cases, however, is not wh ether there were “unreasonable delays” in holdi ng the revocation hear ings, but whether the trial court made “every reasonable effort” to conduct the hearings before the Defendants’ probation terms ended pursuant to section 559.036.8, and nothing in that statute suggests the Defendants must show they suffered prejudice.
910 not make every reasonable effort to co nduct the revocation hearings during their probation terms. See also State ex rel. Breeding v. Seay , 244 S.W.3d 791 (Mo. App. 2008) (finding that the lower court did not make every reasonable effort to hold a probation revocation hearing when defendan t appeared twice during his probation, but the court continued the hearing until one year after his probation ended). Conclusion The trial court’s actions here were unde rstandable. The court was attempting to ensure the maximum restitu tion payments while avoidi ng imprisonment for the Defendants. Unfortunately, th e statute does not permit that. 5 In each case, the trial court’s failure to make every reasonable effort to rule on the pending probation revocation motion while the defendant was s till on probation divested it of the authority to conduct revocation hearings beyond the five-year proba tion term. The preliminary writs of prohibition are made permanent.

_____________ ___________ Mary R. Russell, Chief Justice

Breckenridge, Stith, Draper, Wilson and Teitelman, JJ., concur; Fischer, J., concurs in separate opinion filed.

5 However, recent legislative changes to anothe r statute, section 559.105, will give trial courts more flexibility in situations in which a defe ndant fails to make full restitution during the probation term. See 2013 Mo. Legis. Serv. 338 (West). Section 559.105.2 now provides that a probationer ordered to pay restitution shall not be released from probation until restitution is complete and “[i]f full restituti on is not made within the origin al term of probation, the court shall order the maximum term of probation allowed for such offense.” Id.

# SUPREME COURT OF MISSOURI en banc STATE ex rel. AMY STRAUSER ) ) Relator, ) ) v. ) No. SC93340 ) THE HONORABLE SANDY MARTINEZ, ) ) Respondent. ) (Consolidated with) STATE ex rel. S HARON EDMONDS, ) ) Relator, ) ) v. ) No. SC93345 ) THE HONORABLE SANDY MARTINEZ, ) ) Respondent. )
CONCURRING OPINION I concur in the principal opinion. The ci rcuit court involved here would not have anticipated that the generos ity it extended to Amy Strauser and Sharon Edmonds—in the form of granting them another chance to comp lete probation without a conviction on their record and without incarceration even after they failed to comply w ith the terms of their probation—would be "r ewarded" with the court losing the legal authority to revokeprobation whe n these probationers once agai n violated the terms of their respective probation. In light of the fact that § 559.036.8, RSMo Supp. 2 012, requires that "every reasonable effort" be made to notify the probationer and to conduct the hearing prior to the expiration of the probationary period, future circuit courts in situations like those at issue here will undoubtedly—at a minimum—revoke probatio n, impose a sentence, and thereafter suspend the execution of the sentence so an additional term of probation can be ordered, resulting in a convic tion on the probationer's crimin al record. Alternatively, circuit courts faced with this dilemma will likely revoke probation, impose a sentence, and order the sentence to be executed. This Court's authority to issue an extraordinary writ is always a matter of discretion, and a probationer who absconds n ear the end of a probationary term or otherwise contributes to the cause of the supervising court's failure to notify the probationer or conduct probation revocation proceedings prior to the expiration of the probation term should not necessa rily expect this Court to vi ew the situation to be so extraordinary as to justify the issuance of a writ of prohibition. 1 Further, the legislature amended § 559.105 , effective August 28 , 2013, which will make it rarer for a similar case regarding fa ilure to satisfy restitu tion as a condition of probation to result in the loss of legal authority to revoke probation. Section 559.105.2,

1 The statutory requirement to use "every reasona ble effort" to conduct a he aring within the term of probation, in my view, does not prevent a supervising cour t that has timely suspended probation pursuant to § 559.036.7 and manifested an intent to proceed with the revocation proceeding by issuing a warrant from conduc ting the revocation hearing whenever the probationer is returned to the supervis ing court for revocation proceedings.

2RSMo Supp. 2013, provides that a probationer ordered to pay restitution shall not be released from probation until restitution is co mplete, and "[i]f full restitution is not made within the original term of probation, th e court shall order the m aximum term of probation allowed for such offense." Howeve r, as most sentencing courts already give the maximum five-year probation term when ordering a probationer to pay a significant amount of restitution, the 2013 amendment to section 559.10 5.3 likely will result in the more significant change in sentencing prac tice. Section 559.105.3 now provides for restitution to be a condition of parole and requires the boar d of probation and parole not to "release any person from any term of paro le ... until the person has completed such restitution, or until the maximum term of parole for such offense has been served." This amendment repeals the prior prohibition against requiring a prisoner both to serve a prison term and to pay restit ution and, therefore, relieve s sentencing courts from having to choose between a prison term and restitu tion—a choice that today's decision makes harder than ever. Instead, u nder the new section 559.105.3, anytime a sentencing court believes that a prison term is warranted—or does not believe that the defendant will make full restitution within the maximum five-year probation period—the court can remand the defendant to the department of corrections for a lengthy term and be assured that the defendant will be required to pay restitution during the portion of that term that the defendant is on parole. The fact that such an approach avoids the catch-22 created by today's decision, increases time to pay restitution while on pa role, and reduces the circuit courts' already overburde ned probation review dockets will make such an approach very difficult to resist.

34 In conclusion, as defendants' counsel in th ese cases admitted in oral argument, this Court's decision will operate to the distinct disadvantage of many future defendants. However, this Court is obligated to adhere to the words of the statute, and any adjustments to the balance struck by section 559.036.8 (as now declared by this Court) and the 2013 amendments to se ction 559.105 must be made by the General Assembly.

____ ______________________ Zel M. Fischer, Judge