stating court’s authority to order offender’s sentences executed expired 120 days after sentencing
How later courts described this case
- stating court’s authority to order offender’s sentences executed expired 120 days after sentencing
Written by the judges who cited it.
The opinion
In the Missouri Court of Appeals
Eastern District
WRIT DIVISION TWO
STATE OF MISSOURI ex rel. ) No. ED100782
MICHAEL LOVELACE, )
) Writ of Mandamus
Relator, ) Circuit Court of Lincoln County
) Cause No. 13L6-CR00814-01
vs. )
) Hon. Chris Kunza Mennemeyer
HONORABLE CHRIS KUNZA )
MENNEMEYER, JUDGE OF THE )
CIRCUIT COURT OF LINCOLN )
COUNTY, MISSOURI. )
)
Respondent. ) Filed: February 25, 2014
The relator, Michael Lovelace, seeks a writ of mandamus directing the respondent, the
Honorable Chris Kunza Mennemeyer, to order that Lovelace be released from the Missouri
Department of Corrections and placed on probation. We issued a preliminary order in
mandamus. The respondent has filed an answer, and admitted all allegations in Lovelace’s
petition. We dispense with further briefing in the interests of justice as permitted by Rule
84.24(j). We now make our preliminary order permanent, and direct the respondent to release
Lovelace on probation as provided in section 559.115.3 RSMo. (Supp. 2012). 1
Lovelace pleaded guilty to one count of stealing. On August 5, 2013, the trial court
sentenced Lovelace to five years’ imprisonment in the Department of Corrections, and he was
delivered to the Department on August 13, 2013. The trial court further ordered Lovelace’s
1
All statutory references are to RSMo. (Supp. 2012) except as otherwise indicated.
sentence be served pursuant to the institutional drug and alcohol treatment provisions of section
559.115. Within 120 days of Lovelace’s sentence, the Department of Corrections reported that
Lovelace successfully completed the institutional-treatment program. On October 30, 2013,
without conducting a hearing, the trial court denied Lovelace’s release on probation, and ordered
that Lovelace’s sentence be executed.
Mandamus is a discretionary writ that is appropriate when a court has exceeded its
jurisdiction or authority, and where no remedy exists through appeal. State ex rel. Dorsey v.
Wilson, 263 S.W.3d 790, 791 (Mo. App. E.D. 2008). “Ordinarily, mandamus is the proper
remedy to compel the discharge of ministerial functions, but not to control the exercise of
discretionary powers.” State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012).
However, if the respondent’s actions are wrong as a matter of law, then she has abused any
discretion she may have had, and mandamus is appropriate. Id.
Section 559.115.3 allows the trial court to place an offender in the Department of
Corrections for 120 days. It also expressly provides in pertinent part either for release on
probation or a timely hearing prior to execution of the offender’s sentence if the trial court
decides to deny probation:
The court may recommend placement of an offender in a department of corrections one
hundred twenty-day program . . . When the court recommends and receives placement of
an offender in a department of corrections one hundred twenty-day program, the offender
shall be released on probation if the department of corrections determines that the
offender has successfully completed the program except as follows. Upon successful
completion of a treatment program, the board of probation and parole shall advise the
sentencing court of an offender’s probationary release date thirty days prior to release.
The court shall release the offender unless such release constitutes an abuse of
discretion. If the court determined that there is an abuse of discretion, the court may
order the execution of the offender’s sentence only after conducting a hearing on the
matter within ninety to one hundred twenty days of the offender’s sentence. If the court
does not respond when an offender successfully completes the program, the offender
shall be released on probation. . . .
2
(Emphases added). 2 Thus, under this section, after the court imposes a sentence and receives
notice that the offender has successfully completed the institutional-treatment program, the trial
court must grant probation unless release would constitute an abuse of discretion. State ex rel.
Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006); Dorsey, 263 S.W.3d at 791. If the
trial court determines that the offender’s release constitutes an abuse of discretion, the trial court
must conduct a hearing within 90 to 120 days of the offender’s sentence before ordering
execution of the sentence. Id. at 791-92.
Here, the trial court sentenced Lovelace on August 5, 2013, so the trial court’s authority
to order his sentence executed expired 120 days thereafter, on December 3, 2012. See Valentine,
366 S.W.3d at 541 (stating court’s authority to order offender’s sentences executed expired 120
days after sentencing). The trial court denied Lovelace’s release on probation on October 30,
2013, and ordered execution of his sentence. The trial court failed to hold a hearing prior to
ordering execution of Lovelace’s sentence as required by the statute. Because the trial court
failed to hold a hearing within 90 to 120 days of Lovelace’s sentence, the time to order execution
of the sentence expired. 3 Mertens, 198 S.W.3d at 618; Dorsey, 263 S.W.3d at 792. Thus,
Lovelace must be released on probation.
2
Section 559.115.3 was amended after Lovelace was sentenced and delivered to the Department of Corrections, but
before he completed his 120-day program and the trial court denied probation. H.B. 215, 97th Gen. Assem., 1st
Reg. Sess. (Mo. 2013); H.B. 374 & 434, 97th Gen. Assem., 1st Reg. Sess. (Mo. 2013). These amendments became
effective August 28, 2013, ninety days after adjournment of the legislative session in which they were enacted. Mo.
Const. art. III, sec. 29. The parties assume that the previous version of the statute applies. Having been offered no
law or argument to the contrary, we also assume, without deciding, that the previous version of the statute applies.
We need not decide this issue because even if the version of the statute as amended in 2013 applies, our conclusion
remains the same. The statute still requires the trial court to conduct a timely hearing before ordering execution of
the offender’s sentence. Mo. Ann. Stat. sec. 559.115.3 (West Supp. 2014).
3
The statute, as amended in 2013, now provides that if the trial court determines that the offender’s release on
probation is not appropriate, the trial court shall conduct a hearing on the matter within 90 to 120 days from the date
the offender was delivered to the Department of Corrections. Mo. Ann. Stat. sec. 559.115.3 (West Supp. 2014).
Because Lovelace was delivered to the Department of Corrections on August 13, 2013, the 120th day thereafter fell
on December 11, 2013. The trial court failed to hold a hearing, and thus the time to order execution of the sentence
3