                                                     In the
                               Missouri Court of Appeals
                                           Western District
 MONTREL MOSBY,                                            )
                                                           )
                     Appellant,                            )   WD82181
                                                           )
 v.                                                        )   OPINION FILED: March 26, 2019
                                                           )
 ANNE PRECYTHE,                                            )
                                                           )
                    Respondent.                            )

                   Appeal from the Circuit Court of Cole County, Missouri
                            The Honorable Daniel R. Green, Judge

  Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and
                               Gary D. Witt, Judge


         Montrel Mosby ("Mosby") appeals from the judgment of the Cole County Circuit

Court granting Director Precythe's1 Motion to Dismiss, dismissing Mosby's Petition for

Declaratory Judgment under section 558.0312 requesting jail-time credit. Mosby was

convicted of three offenses and is in the Missouri Department of Corrections ("MDOC")

serving three consecutive sentences. Mosby argues that the trial court erred in granting the


         1
            Director Preythe is the Director of the Missouri Department of Corrections ("MDOC") and is a party to
this action in her official capacity as opposed by the individual capacity. We will refer to her as MDOC for ease of
reference.
          2
            All statutory references are to RSMo 2016 as currently supplemented, unless otherwise indicated.
MDOC's motion to dismiss because his time served between July 23, 2015 and July 14,

2016 was "related to" time that he is currently serving in custody, and therefore, he should

receive credit. We affirm.

                               Facts and Procedural History

       Mosby is in the MDOC serving three separate sentences. In case one, Mosby was

convicted of possession of a controlled substance for which the court sentenced him on

September 27, 2013 to serve seven years in the MDOC ("Case One"). The court granted

him 350 days of jail time credit. In case two, Mosby was convicted of distribution of a

controlled substance for which the court sentenced him to a consecutive term of thirteen

years in the MDOC ("Case Two"). On this case he was originally given a suspended

execution of the sentence and placed on probation after serving 120 days in a MDOC

treatment program. That probation was later revoked and his sentence was imposed. He

was given 143 days of jail time credit against this sentence. In case three, Mosby was

convicted of possession of a controlled substance for which he received a consecutive

sentence of three years in the MDOC ("Case Three"). Mosby has a total of twenty-three

years to serve in MDOC for these three cases.

       Mosby filed a petition for Declaratory Judgment on March 8, 2018 under section

558.031 requesting credit for jail time served. Mosby alleged that he should receive credit

for the time he spent in the county jail between his July 23, 2015, date of arrest, and July 14,

2016, the date he was received by the MDOC to serve the Case Three sentence. Mosby

alleged that the offense in Case Three occurred on July 23, 2015, and he was arrested that

day. Mosby alleged that he remained on parole for Case One for this period. Mosby also

                                               2
acknowledges that this period was included in the jail time credit he received for his Case

One sentence.

       The MDOC filed a Motion to Dismiss on July 6, 2018. The trial court entered

judgment granting the MDOC's Motion to Dismiss on August 27, 2018.

                                   Standard of Review

       "We review the grant of a motion to dismiss de novo and will affirm the dismissal

on any meritorious ground stated in the motion." Gerke v. City of Kan. City, 493 S.W.3d

433, 436 (Mo. App. W.D. 2016) (citing Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App.

E.D. 2005)). "If the petition sets forth any set of facts that, if proven, would entitle the

plaintiffs to relief, then the petition states a claim.'" Lynch v. Lynch, 360 S.W.3d 834, 836

(Mo. banc 2008).

                                          Analysis

       Mosby raises one point on appeal. In his sole point on appeal Mosby argues that

the trial court erred in granting the MDOC's Motion to Dismiss because he should have

received jail-time credit for the period between July 23, 2015, and July 14, 2016, against

his Case Three sentence.

       First we note that the procedural basis upon which the trial court rested its judgment,

dismissal of the petition for failure to state a claim upon which relief could be granted, was

improper. "The sufficiency of the petition for declaratory judgment is based upon 'whether

the petition entitles the plaintiff to a declaration of rights or status on facts pleaded.'"

Russell v. Healthmont of Mo., LLC, 348 S.W.3d 784, 786 (Mo. App. W.D. 2011) (State ex

rel. Chastain v. City of Kansas City, 289 S.W.3d 759, 763 (Mo. App. W.D. 2009)). "In

                                              3
deciding whether to dismiss a petition for declaratory judgment for failure to state a claim

upon which relief may be granted, the trial court is not to address the merits of the claim."

Leuchtmann v. Missouri Dep't of Corrections, 86 S.W.3d 475, 478 (Mo. App. W.D. 2002).

Mosby's petition clearly stated a claim for declaratory relief. His petition called for

declaration of whether or not he was entitled to jail-time credit for the period between

July 23, 2015, and July 14, 2016, against his Case Three Sentence. By engaging in the

determination of the merits, the trial court implicitly acknowledged that Mosby had stated

a claim for declaratory relief. Russell, 348 S.W.3d at 786; State ex rel. American Eagle

Waste Indus. v. St. Louis Cnty., 272 S.W.3d 336, 340 (Mo. App. E.D. 2008).

       Based on the judgment, the trial court in fact entered judgment on the pleadings in

favor of MDOC rather than finding that Mosby failed to state a claim for relief. In the

interest of judicial economy, we will consider whether the trial court reached the proper

legal conclusion and could properly have entered such a judgment.

       Section 558.031.1 provides in relevant part:

       A sentence of imprisonment shall commence when a person convicted of an
       offense in this state is received into the custody of the department of
       corrections or other place of confinement where the offender is sentenced.
       Such person shall receive credit toward the service of a sentence of
       imprisonment for all time in prison, jail or custody after the offense occurred
       and before the commencement of the sentence, when the time in custody was
       related to that offense, except:

       (1) Such credit shall only be applied once when sentences are consecutive.

       Mosby argues that he should receive the jail-time credit against his Case Three

sentence because the time he spent in custody during this period is related to the offense in

Case Three. However, Mosby was sentenced to three separate sentences to be served

                                             4
consecutively. The sentence for Case Three was to be served consecutive to the sentences

for Case One and Case Two. Mosby acknowledged that he already received credit for that

time in jail toward service of his sentence in Case One. The plain language of the statute

shows that he is not entitled to receive credit for the same period in jail against separate

sentences that were ordered to be served consecutively. State v. Riley, 761 S.W.2d 745,

746 (Mo. App. E.D. 1988). Mosby was not entitled to relief based on the factual allegations

in the petition.

       Point One is denied.

                                       Conclusion

       The trial courts judgment is affirmed.



                                          __________________________________
                                          Gary D. Witt, Judge
All concur




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