                                        In the
                        Missouri Court of Appeals
                                 Western District
                                            )
IN RE ANDREW J. KORY,                       )
                                            )   WD79273
               Petitioner,                  )
                                            )   OPINION FILED:
v.                                          )   January 5, 2016
                                            )
BOB GRAY, Jail Administrator,               )
Daviess/Dekalb Regional Jail,               )
                                            )
              Respondent.                   )


                     ORIGINAL WRIT OF HABEAS CORPUS

 Before Writ Division: Gary D. Witt, Presiding Judge, James Edward Welsh, Judge and
                              Cynthia L. Martin, Judge

      Andrew Kory ("Kory") filed a Petition for Writ of Habeas Corpus in this court

alleging that he is being confined in the Daviess/DeKalb Regional Jail by Bob Gray, the

Jail Administrator ("Respondent") in restraint of his liberty. We agree and issue our writ

of habeas corpus.

                         Factual and Procedural Background

      Kory was originally incarcerated in the Daviess/DeKalb Regional Jail on July 2,

2014, after being charged in 2014 ("2014 Information") with rape concerning an incident
with a minor victim alleged to have occurred on October 31, 2013 ("Incident"). The State

dismissed the 2014 Information on August 11, 2015, but refiled a new Complaint the

same day ("2015 Complaint") charging Kory with felony rape, felony statutory rape, and

felony endangering the welfare of a child based on the same Incident.

      On December 16, 2015, the State dismissed the 2015 Complaint and filed an

Amended Information, alleging that Kory committed the Class A Misdemeanor of sexual

abuse stemming from the same Incident.

      On the same date, Kory pleaded guilty to the misdemeanor charge and was

sentenced to one year in the county jail. As of December 16, 2015, Kory had already

been confined for 532 days pursuant to the 2014 Information and the 2015 Complaint.

Following his guilty plea, Kory was returned to Daviess/DeKalb Regional Jail, where he

received a commitment order that varied from the commitment order he was provided at

the plea hearing. The revised commitment order contained a hand written note stating

that the circuit court was denying him credit for time served while being held on the 2014

Information, and was intending his one year jail sentence to run from August 11, 2015 to

August 11, 2016.

      Kory filed a Petition for Writ of Habeas Corpus in this court on December 22,

2015 ("Petition") alleging that his continued confinement was an unlawful restraint

because he should have been afforded credit against his one year sentence for the 532

days he had already been confined. This court entered its Order to Show Cause on

December 22, 2015.



                                            2
                                           Analysis

       Rule 91.01(b) provides that "[a]ny person restrained of liberty within this state

may petition for a writ of habeas corpus to inquire into the cause of such restraint."

Kory's Petition establishes that he is entitled to habeas relief.

       As a preliminary matter, we observe that Kory did not first file his Petition in the

circuit court in the circuit where he is confined. Rule 91.02(a) provides that a petition

seeking a writ of habeas corpus shall be filed in the first instance in the circuit court in the

circuit where the petitioner is confined, unless good cause is shown to first file the

petition in a higher court. Kory argues that it would have been futile to first file his

Petition in the circuit court in the county where he is confined, as it is the act of that court

in ordering that he receive no credit for time served prior to August 11, 2015 which has

led to his unlawful restraint. We agree, and find that good cause to first file the Petition

in this court has been established pursuant to Rule 91.02(a).

       Kory has been continuously incarcerated since July 2, 2014 in connection with the

Incident. He entered a guilty plea to the Class A Misdemeanor of sexual abuse on

December 16, 2015.         His imposed sentence was one year confinement in the

Daviess/DeKalb Regional Jail. At the time of his guilty plea and sentence, Kory had

already been confined for 532 days in the Daviess/DeKalb Regional Jail.                 Kory's

confinement was exclusively related to the Incident, though over the course of time, the

State had charged, dismissed, and refiled charges relating to the Incident on three

different occasions.



                                               3
      Missouri law provides that a sentence imposed:

      shall commence when a person convicted of a crime 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 . . .

Section 558.031.1. 1          Section 558.031.1 is not limited to felony convictions or to

confinement in the department of corrections.                     Rather, by its plain terms, section

558.031.1 applies to any confinement following any conviction of any crime. Kory is

thus entitled to jail credit toward the service of his sentence if his 532 days in custody

were related to the offense of which he was convicted and sentenced.

      "Time in custody is generally 'related to' a sentence, and thus eligible for credit . . .

if the inmate could have been free from custody absent the charge." Pettis v. Missouri

Dept. of Corrections, 275 S.W.3d 313, 317 (Mo. App. W.D. 2008) (citing Mikel v.

McGuire, 264 S.W.3d 689, 691-92 (Mo. App. W.D. 2008)). Here, Kory would have been

free from custody absent the charges in the 2014 Information. The 2014 Information was

dismissed and replaced by the 2015 Complaint. Kory would have been free from custody

absent the charges in the 2015 Complaint. The 2015 Complaint was dismissed and

replaced by the December 16, 2015 Amended Information, on which date Kory pled

guilty to a reduced, amended charge. The successive amended charging documents filed

by a single prosecuting entity based on the same nucleus of facts resulted in "time in

custody" that was related to the offense of which Kory was ultimately convicted. Stated

      1
          All statutory references are to RSMo 2000 as supplemented, except as otherwise noted.

                                                        4
another way, absent Kory's arrest on July 2, 2014, and later conviction on December 16,

2015 of a reduced, amended charge, Kory would not have been in custody. Kory is thus

entitled to jail time credit against his sentence for the 532 days he was confined from

July 2, 2014 to the date of his guilty plea and sentence. Because that credit exceeds his

one year sentence, Kory is now being restrained of his liberty without legal authorization.

The directive by the sentencing court to the Respondent on the revised commitment order

which sought to limit the credit afforded Kory to time served from and after August 11,

2015, is without legal authority.

                                                   Conclusion

         There being no legal cause for Kory's continued restraint, Kory's request for a writ

of habeas corpus is granted.2 Kory is ordered immediately released from custody.




                                                      __________________________________
                                                      Cynthia L. Martin, Judge

All concur




         2
          On December 31, 2015, this court issued its order granting Kory's request for a writ of habeas corpus,
noting that an opinion would follow. See Rules 84.24(a), 84.24(e), 84.24(j), 84.24(l), 91.01(a), 91.18.

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