                   In the Missouri Court of Appeals
                           Eastern District
                                 WRIT DIVISION SEVEN


CHRISTOPHER SANDKNOP,        )                     No. ED101967
                             )
     Relator,                )                     Appeal from the Circuit Court of
                             )                     St. Louis County
     vs.                     )
                             )
HONORABLE STEVEN H. GOLDMAN, )
CIRCUIT COURT OF ST. LOUIS   )                     Honorable Steven H. Goldman
COUNTY, MISSOURI and         )
DEPARTMENT OF CORRECTIONS,   )
                             )
     Respondents.            )                     Filed: December 9, 2014


                                        Introduction

       Christopher Sandknop (Relator) filed a petition seeking a writ of mandamus compelling

the Honorable Steven Goldman (Respondent) to immediately release Relator on probation

pursuant to § 217.362 RSMo Supp. 2004. Because § 217.362 requires a circuit court, upon a

chronic offender’s successful completion of a long-term treatment program, to either

immediately release the offender on probation or alternatively execute the offender’s sentence,

and Respondent did neither in his Amended Order, we make the Preliminary Order in Mandamus

permanent and we reverse Respondent’s Amended Order and remand with directions for

Respondent to comply with the requirements of § 217.362.
                                     Factual Background

       In July 2013, Relator pleaded guilty as a chronic offender to one count of driving while

intoxicated. On the same day, the circuit court entered its Judgment and Sentence, which found

beyond a reasonable doubt that Defendant is a chronic offender under § 577.023 RSMo Supp.

2013 and sentenced Defendant to 10 years’ imprisonment in the Department of Corrections

(DOC). The Judgment and Sentence ordered that the 10-year sentence be served pursuant to

§ 217.362, which allows for a sentence of long-term treatment for chronic nonviolent offenders

with serious substance abuse addictions, and concurrent with sentences in four other cases, also

to run concurrent with the period of long-term treatment.

       On May 1, 2014, Defendant successfully completed treatment pursuant to § 217.362.

Defendant was not released on probation at that time, nor was his sentence executed. Instead,

Defendant remained in the custody of the DOC. Several months later, in July 2014, the circuit

court, on its own motion, entered an “Amended Order of Probation Pursuant to Section 559.115

RSMO.” The Amended Order provided:

       [I]t is hereby ordered, adjudged and decreed that the remainder of the sentence
       imposed upon the defendant by this Court be suspended and the defendant be
       place[d] on probation for a period of five (5) year(s) under the supervision of the
       Missouri Board of Probation and Parole under conditions of probation as set by
       the Board and this Court, and that the defendant be released from the Department
       of Corrections to begin said probation on/about December 20, 2014 or as soon
       thereafter as may be practicable. [Emphasis in original.]

       On September 9, 2014, Relator filed the instant petition for writ of mandamus in this

Court. In his petition, Relator alleged, pursuant to State ex rel. Salm v. Mennemeyer, 423 S.W.3d

319 (Mo. App. E.D. 2014) and § 217.362.3, that Respondent, upon Relator’s completion of the

treatment program, lacked jurisdiction to continue Relator’s detention in the DOC and was

required to immediately release him on probation or execute his sentence. Respondent filed



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suggestions in opposition, claiming that Respondent does not have the authority to release

Relator because § 577.023 requires Relator to serve a minimum two-year term of incarceration

before becoming eligible for release. On September 24, 2014, this Court entered a Preliminary

Order in Mandamus.

                                      Standard of Review

       “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. Kizer v.

Mennemeyer, 421 S.W.3d 558, 559 (Mo. App. E.D. 2014). “To be entitled to a writ, a litigant

asking relief by mandamus must allege and prove that he has 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) (citation and quotations omitted). “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) (citations and quotations

omitted).   However, “if the respondent’s actions are wrong as a matter of law, then [the

respondent] has abused any discretion [the respondent] may have had, and mandamus is

appropriate.” State ex rel. Kizer, 421 S.W.3d at 559. Whether a circuit court has exceeded its

authority is a question of law that we review de novo. State ex rel. Thurman v. Pratte, 324

S.W.3d 501, 503 (Mo. App. E.D. 2010).

                                          Discussion

       In his petition, Relator claims that Respondent exceeded his jurisdiction and abused his

discretion by failing to immediately release Relator on probation when Relator completed his

long-term treatment program. According to Relator, § 217.362 requires Respondent, at the end

of the long-term treatment program, to either release Relator on probation immediately or to



                                               3
execute Relator’s sentence and that § 217.362 controls over § 577.023. In response, Respondent

asserts that a writ of mandamus is not a proper means of reviewing Relator’s claim.1

Alternatively, Respondent argues that his discretion to place Relator on probation is constrained

by § 577.023.2

        Because the circuit court sentenced Relator to a 10-year term pursuant to § 217.362, we

begin our analysis with that provision. Section 217.362 grants the DOC the authority to “design

and implement an intensive long-term program for the treatment of chronic nonviolent offenders

with serious substance abuse addictions . . . .” § 217.362.1. Section 217.362.2 permits a

sentencing court to sentence an eligible offender to such a program “for a period of at least

twelve and no more than twenty-four months, as well as a term of incarceration.” Subsection 2

also mandates that “[e]xecution of the offender’s term of incarceration shall be suspended

pending completion of said program.” § 217.362.2. Section 217.262.3 pertains to what occurs

upon the successful completion of the long-term treatment program. Subsection 3 provides,

“Upon 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.”

        In Salm, this Court interpreted § 217.362 as granting a circuit court a “limited authority.”

423 S.W.3d at 321. Specifically, with regard to § 217.362.3, the Court held that “upon an

1
  At the outset, we reject Respondent’s contention that, because consideration of Relator’s petition would require
this Court to adjudicate legal issues, a petition for a writ of mandamus is not the proper mechanism to provide
Relator relief. Respondent’s reliance on this general principle ignores that the Amended Order is not subject to
appeal. Thus, consideration of the validity of Respondent’s Amended Order is exactly the type of situation that is
properly reviewed through the extraordinary relief provided by a writ of mandamus. See State ex rel. Salm, 423
S.W.3d at 321 n. 5.
2
 We decline to reach the question of whether § 217.362 and § 577.023 conflict because under the terms of the
Amended Order, Respondent did not act under either statute.


                                                        4
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 the execution of the offender’s sentence.” State ex rel. Salm, 423 S.W.3d at 321

(emphasis added). Because the circuit court in Salm entered an order that retained jurisdiction

over the relator for an additional twelve months beyond the relator’s completion of his treatment

program, the Court concluded that the circuit court exceeded its authority. Id. The Court

explained that “[n]othing in section 217.362 gave [the circuit court] the authority to retain

jurisdiction and extend the length of [the relator’s] treatment program . . . .” State ex rel. Salm,

423 S.W.3d at 321.

        As Salm and the plain language of § 217.362 make clear, when a defendant is sentenced

to a long-term treatment program pursuant to § 217.362 and successfully completes that

program, the circuit court’s authority is expressly limited to two alternative actions: the circuit

court must either release the defendant on probation or execute the defendant’s sentence if the

court determines that probation is not appropriate. No other action is expressly, or impliedly,

permitted under the statute.

        Here, the trial court’s Amended Order neither releases Relator on probation nor executes

Relator’s sentence. Instead, without reference to either § 217.362 or § 577.023 upon which

Respondent now relies, the Amended Order suspends pursuant to § 559.115 Relator’s original

10-year sentence (imposed pursuant to § 217.362) and orders five years’ probation to commence

at a future date nearly eight months after Relator’s successful completion of his treatment

program.3 As implied by the holding in Salm, § 217.362 does not contemplate a grant of


3
  However, § 559.115 does not provide a circuit court with the power to suspend the remainder of a sentence
previously imposed under a different statute (here § 217.362) and order probation. “[O]nce judgment and
sentencing occur in a criminal proceeding, [the trial court] can take no further action unless otherwise expressly
provided by statute or rule.” Allen v. State, 219 S.W.3d 273, 277 (Mo. App. S.D. 2007). Thus, “[a]ny subsequent

                                                        5
authority to the circuit court that would allow it to extend a defendant’s incarceration beyond the

length of the treatment program absent the execution of the defendant’s sentence. 4 Accordingly,

Respondent’s Amended Order, by creating a third option not prescribed by § 217.362, is contrary

to law. Upon Relator’s successful completion of his treatment program, Respondent had the

authority to either immediately release Relator on probation or execute Relator’s sentence in the

event that Respondent found probation to be inappropriate.5

                                                     Conclusion

         This Court’s Preliminary Writ of Mandamus is made permanent. Respondent’s Amended

Order is reversed and, on remand, Respondent must comply with the limited authority granted by

§ 217.362.



                                                                 ____________________________________
                                                                 Philip M. Hess, Presiding Judge

Patricia L. Cohen, J., and
Lisa S. Van Amburg, J., concur.




proceedings by the trial court not authorized by statute or rule will be considered a nullity.” Id. (citing State ex rel.
Johnston v. Berkemeyer, 165 S.W.3d 222, 224 (Mo. App. E.D. 2005)).
4
  Moreover, when a circuit court executes a suspended sentence, the sentence is the one specified at the original
sentencing. See Hoskins v. State, 329 S.W.3d 695, 698 n. 3 (Mo. banc 2010).
5
  Salm emphasizes that a determination that probation is not appropriate must be supported by evidence. 423
S.W.3d at 322.

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