            SUPREME COURT OF MISSOURI
                                            en banc

State ex rel. James Dean Hodges,               )
                                               )
                        Relator,               )
                                               )
vs.                                            )      No. SC94886
                                               )
The Honorable Jodie Asel and                   )
George Lombardi,                               )
                                               )
                        Respondents.           )

                            Original Proceeding in Mandamus

                               Opinion issued May 26, 2015

          James Hodges filed a petition for a writ of mandamus, requesting his

immediate release on probation pursuant to section 217.362.3. 1 Mr. Hodges

argues that section 217.362.3 requires his immediate release on probation because

he successfully completed the long-term substance abuse treatment program

established by section 217.362. Section 217.362.3 does not require the immediate

release of an individual who, like Mr. Hodges, was sentenced as a “chronic

offender” pursuant to section 577.023.6(4) and is ineligible for probation until

serving a minimum of two years in prison. The petition for writ of mandamus is

denied.



1
    All statutory citations are to RSMo Supp. 2012 unless otherwise noted.

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                                        I. Facts

       On June 24, 2013, Mr. Hodges pleaded guilty to one count of driving while

intoxicated as a chronic offender. The circuit court determined that Mr. Hodges

qualified as a chronic offender pursuant to section 577.023.6(4) and sentenced him

to five years in prison. The circuit court ordered that Mr. Hodges be placed in the

long-term substance abuse treatment program established by section 217.362.

       Mr. Hodges successfully completed the treatment program, prior to serving

two years. The Missouri Board of Probation and Parole informed the circuit court

that Mr. Hodges successfully completed the program. The board advised the court

that Mr. Hodges would be eligible for probation on June 8, 2015. 2 The circuit

court adopted the board’s recommendation and directed that Mr. Hodges be

released on probation on June 8, 2015.

       Mr. Hodges filed a motion for release. Mr. Hodges asserted that he was

entitled to immediate release because he successfully completed the section

217.632 treatment program. The circuit court overruled the motion. The court

noted that Mr. Hodges was sentenced as a chronic offender pursuant to section

577.023.6(4) and was required to serve a minimum of two years imprisonment

before he could be eligible for parole. The court further noted that it did not object

to Mr. Hodges’ release “under Chapter 217” if the department determined that Mr.



2
  Mr. Hodges was received by the Department of Corrections on June 28, 2013. Mr.
Hodges’ release date was calculated as June 8, 2015, because he received 20 days of jail-
time credit for time served prior to imprisonment in the Department of Corrections.
                                            2
Hodges was “eligible for release despite” the mandatory minimum two year’s of

imprisonment required by section 577.023.6(4).

       Mr. Hodges filed the instant petition for a writ of mandamus arguing that he

is entitled to immediate release on probation pursuant to section 217.362.3. As

established below, section 217.362.3 does not require the circuit court to

immediately release a chronic offender prior to serving the two years of

imprisonment mandated by section 577.023.6(4). Instead, as the circuit court

ordered, Mr. Hodges is eligible for release on probation on June 8, 2015.

                               II. Standard of Review

       This Court has authority to “issue and determine original remedial writs.”

Mo. Const. art. V, § 4.1. “A writ of mandamus may issue upon proof of a “clear,

unequivocal specific right to a thing claimed.” U.S. Dept. of Veterans Affairs v.

Boresi, 396 S.W.3d 356, 359 (Mo. banc 2013). When a statutory right is at issue,

a court must analyze the statute or statutes under which the relator claims the right.

Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo. App. 1998). When, as in this case,

two statutes are involved, this Court will apply both statutes unless the statutes

conflict and cannot be reconciled. South Metro. Fire Prot. Dist. v. City of Lee’s

Summit, 278 S.W.3d 659, 666 (Mo. banc 2009).

                III. Mr. Hodges is not entitled to immediate release

       Mr. Hodges argues that section 217.362.3 requires his immediate release on

probation because he successfully completed the treatment program. Mr. Hodges’

argument is without merit because section 217.362.3 does not require the circuit

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court to immediately release a chronic offender before the offender serves two

years of imprisonment as required by section 577.023.6(4). Both statutes apply to

Mr. Hodges, and the statutes do not conflict.

       Section 577.023.6(4) provides that “[n]o chronic offender shall be eligible

for parole or probation until he or she has served a minimum of two years

imprisonment.” Section 577.023.6(4) provides unequivocally and without

exception that Mr. Hodges, like all chronic offenders, must serve at least two

years’ imprisonment.

       Section 217.362.3 provides: “[u]pon successful completion of the program,

the board of probation and parole shall advise the sentencing court of an

offender’s probationary release date thirty days prior to release. If the court

determines that probation is not appropriate the court may order the execution of

the offender’s sentence.” The plain language of section 217.362.3 requires only

that the board advise the circuit court of the offender’s probationary release date

thirty days prior to release. The requirement that the board advise the court of the

release date means that the board, not the court, is responsible for calculating the

offender’s release date. Once the board advises the court of the release date, the

statute gives the court the option of not releasing the offender on probation. There

is no language in section 217.362.3 requiring circuit court to grant probation to

Mr. Hodges or any other chronic offender prior to serving two years imprisonment

as required by section 577.023.6(4).



                                          4
         The conclusion that a chronic offender is not entitled to immediate release

upon completing the treatment program is further supported by the fact that

section 577.023.6(4), enacted after section 217.362, 3 specifically provides that no

chronic offender shall be released on “probation or parole” prior to serving two

years imprisonment. “Parole” is the conditional release of an offender from

imprisonment prior to the expiration of his or her term. Section 217.650(4).

“Probation” is the conditional release of an offender by the court upon being found

guilty and prior to being imprisoned. Section 217.650(7). Section 217.632.2

authorizes courts to sentence an offender to treatment for up to two years and

specifically provides that “[e]xecution of the offender’s term of incarceration shall

be suspended pending completion of said [treatment] program.” Therefore, if a

chronic offender completes a section 217.632 treatment program, his or her release

from the treatment program would be probation, not parole. By providing that no

chronic offender can be released on probation or parole before serving two years

imprisonment, section 577.023.6(4) specifically accommodates those situations in

which a chronic offender successfully completes the program and is eligible for

“probationary release” pursuant to section 217.362.3. The statutes are consistent

and do not conflict.

         Mr. Hodges’ argument that he is entitled to immediate release is not based

on the plain language of section 217.362.3. Instead, Mr. Hodges relies on

statements in State ex rel. Salm v. Mennemeyer, 423 S.W.3d 319 (Mo. App. 2014),

3
    Section 577.023.6(4) was enacted in 2005. Section 217.632 was last amended in 2003.
                                            5
and State ex rel. Sandknop v. Goldman, 450 S.W.3d 499 (Mo. App. 2014). In both

cases, the court of appeals stated that section 217.362.3 requires that “upon an

offender’s successful completion of the long-term treatment program, the trial

court must: (1) allow the offender to be released on probation; or 2) determine that

probation is not appropriate and order execution of the offender’s sentence.”

Sandknop, 450 S.W.3d at 502 (quoting Salm, 423 S.W.3d at 321). Neither case,

however, dealt with the interplay between section 217.362.3 and section

577.023.6(4). Salm did not involve a chronic offender. While Sandknop involved

a chronic offender, the court of appeals specifically declined “to reach the question

of whether section 217.362 and section 577.023 conflict” because the circuit

court’s decision to deny probation in that case did not invoke either statute. Id. at

502 n.2. Mr. Hodges’ reliance on Salm and Sandkop is misplaced because, as

established above, the plain language of section 217.362.3 does not require the

circuit court to immediately release a chronic offender prior to serving the two

years of imprisonment required by section 577.023.6(4).

       In this case, the board complied with the statute and advised the court that

Mr. Hodges was eligible for probation on June 8, 2015. The circuit court did not

determine that probation was inappropriate and, instead, stated that the court did

“not object to release under Chapter 217” if the Department of Corrections

determined that Mr. Hodges is eligible for release despite section 577.023(4). Mr.

Hodges’ proposed June 8, 2015 release date satisfies the requirement that he serve



                                          6
at least two years of imprisonment as required by section 577.023.6(4) while

meeting all requirements imposed by the plain language of section 217.362.3.

      The petition for writ of mandamus is denied.



                                         _________________________________
                                         Richard B. Teitelman, Judge


All concur.




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