                         SUPREME COURT OF MISSOURI
                                  en banc



STATE ex rel. AMY STRAUSER,                             )
                                                        )
                                   Relator,             )
v.                                                      )      No. SC93340
                                                        )
THE HONORABLE SANDY MARTINEZ,                           )
                                                        )
                                   Respondent.          )

(consolidated with)

STATE ex rel. SHARON EDMONDS,                           )
                                                        )
                                   Relator,             )
v.                                                      )      No. SC93345
                                                        )
THE HONORABLE SANDY MARTINEZ,                           )
                                                        )
                                   Respondent.          )

                      ORIGINAL PROCEEDING IN PROHIBITION

                            Opinion issued January 14, 2014

       Amy Strauser and Sharon Edmonds (“Defendants”) each seek a writ of prohibition

to prevent the trial court from holding probation revocation hearings after their probation

terms ended. The Defendants argue in each case that the trial court did not have the

authority to hold the revocation hearings because their probation terms had ended and the

court did not make every reasonable effort to hold the hearings during their probation

terms pursuant to section 559.036.8, RSMo Supp. 2012. Because they present identical
legal issues, the cases are consolidated for opinion.

       In the separate underlying criminal actions, the Defendants each received a

suspended imposition of sentence and were placed on five-year terms of probation with

the condition they make either restitution payments or pay court costs. When each

defendant failed to make the required payments, the trial court suspended probation and

scheduled revocation hearings. Instead of issuing a ruling at the hearings, the court

continued to conduct case reviews until after each defendant’s probation term ended.

       This Court makes its preliminary writs permanent because it finds that, in each

case, the trial court did not have the authority to hold the revocation hearings after the

Defendants’ probation terms ended because it did not make every reasonable effort to

hold the hearings during the probation terms pursuant to section 559.036.8.

                               Procedural and Factual History

       On June 4, 2007, Amy Strauser pleaded guilty to one count of theft/stealing, a

class C felony. The trial court suspended the imposition of sentence, placed her on

probation for five years and ordered her to pay $8,398.78 in restitution. On August 22,

the State filed a motion to revoke and suspend probation. While the basis for this motion

is unclear from the docket entries, the parties agreed during oral arguments that it was

due to her failure to make restitution payments.

       The trial court held a hearing on the State’s motion on September 10. At that time,

the trial court passed the cause to October 1 and ordered Strauser to pay $100 each month

toward her restitution. It passed the cause again until November and ordered Strauser to

continue her restitution payments. She appeared in person in the trial court 26 more
times between November 2007 and September 12, 2011. For each appearance, the

docket entries state that either a case review was held or the hearing was continued or

rescheduled.

              On September 12, the trial court suspended Strauser’s probation and ordered her to

continue making restitution payments. Strauser appeared five more times between

September 2011 and March 5, 2012. Each appearance was again labeled as either a case

review or a continuation of the hearing. On March 5, the trial court scheduled a

probation violation hearing for April 2, 2012. However, the docket entry for April 2 is

labeled as a case review, and the trial court passed the cause until May 7 and ordered

Strauser to continue making restitution payments.

              From May 7, 2012, through February 4, 2013, Strauser appeared 10 more times in

the trial court for case reviews. On February 4, the trial court appointed a public defender

and scheduled a probation violation hearing for March 4. Strauser appeared a total of 37

times between when the revocation hearing initially was scheduled and June 4, 2012,

when her probation ended. She appeared eight times between June 4, 2012, and February

4, 2013. Strauser now seeks this writ of prohibition to prevent the trial court from

holding a probation revocation hearing, arguing that the trial court is acting outside of its

statutory authority because her probation ended on June 4, 2012. 1


                                                            
1
  Defendants argue that the trial court lacks jurisdiction to hold the revocation hearings. In
J.C.W. ex rel. Webb v. Wyciskalla, this Court determined that there were only two types of
jurisdiction in Missouri circuit courts: personal and subject matter. 275 S.W.3d 249, 254 (Mo.
banc 2009). Defendants’ claims are characterized more precisely as the trial court exceeded its
statutory authority. See State ex rel. Whittenhall v. Conklin, 294 S.W.3d 106, 108 n.2 (Mo. App.
2009).
                                                               3
 
       The facts in Sharon Edmonds’ case are very similar. She pleaded guilty to two

counts of manufacturing a controlled substance, a class B felony, and one count of

possessing a controlled substance, a class C felony. On September 4, 2003, the trial court

suspended the imposition of sentence, placed her on probation for five years and assessed

court costs against her.

       On July 21, 2008, the trial court suspended Edmonds’ probation for failure to pay

court costs. On September 4, 2008, the last day of her probation, the court held a

probation violation hearing, ordered her to pay $55 per month. Between September 4,

and January 7, 2013, the trial court continued the hearing and Edmonds appeared in court

either in person or through counsel on 22 occasions. For each appearance, the docket

entry is labeled as either a case review or a hearing to monitor payments.

       On January 9, 2013, Edmonds filed a motion to discharge probation in the trial

court. She argued that the court lost authority to revoke her probation because her

probation term ended and the court did not make every reasonable effort to conduct the

hearing while she was still on probation. The court overruled the motion. Edmonds now

seeks this writ of prohibition.

                            Jurisdiction and Standard of Review

       This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec.

4. A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power

when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority,

jurisdiction or abuse of discretion where the lower court lacks the power to act as



                                             4
 
intended; or (3) where a party may suffer irreparable harm if relief is not granted. State

ex rel. Mo. Pub. Defender Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009).

                                                Trial Court’s Authority to Revoke Probation

              At issue in these cases is whether the trial court made every reasonable effort to

conduct hearings on pending probation revocation motions prior to the expiration of

Defendants’ probation so as to have the authority to conduct the hearings after their

probation terms ended under section 559.036.8.

              Section 559.036 2 governs the duration of probation terms and the power of a court

to revoke a defendant’s probation. A term of probation begins the day it is imposed.

Section 559.036.1. If a defendant violates his or her probation, the court may revoke it.

Sections 559.036.3, 559.036.5. But the court’s authority to do so only extends through

the duration of the probation term. Section 559.036.8. When the probation term ends, so

does the court’s authority to revoke probation. State ex rel. Stimel v. White, 373 S.W.3d

481, 484 (Mo. App. 2012).

              Section 559.036.8 allows the court to extend this authority if certain conditions are

met. It states:

                             The power of the court to revoke probation shall extend for
                             the duration of the term of probation designated by the court
                             and for any further period which is reasonably necessary for
                             the adjudication of matters arising before its expiration,
                             provided that some affirmative manifestation of an intent to
                             conduct a revocation hearing occurs prior to the expiration of
                                                            
2
  All references are to RSMo Supp. 2012. While section 559.036 has been amended multiple
times since Defendants were placed on probation, the relevant statutory language has not
changed. Before the amendments, the relevant language was in 559.036.6. See section
559.036.6, RSMo 2000. It is now in 559.036.8. See section 559.036.8, RSMo Supp. 2012.
                                                                   5
 
                             the period and that every reasonable effort is made to notify
                             the probationer and to conduct the hearing prior to the
                             expiration of the period.

In effect, this section sets out two conditions under which a court may revoke probation

after a probation term has ended. First, the court must have manifested its intent to

conduct a revocation hearing during the probation term. Second, it must make every

reasonable effort to notify the probationer and hold the hearing before the term ends. See

Stelljes v. State, 72 S.W.3d 196, 200 (Mo. App. 2002). Unless the court meets both of

these conditions, it cannot hold a revocation hearing after probation expires.3 In the

present cases, the trial court manifested its intent to conduct the revocation hearings

before the Defendants’ probation terms ended, and the Defendants were notified. At



                                                            
3
  The State argues that the trial court also retains the authority to impose a sentence after a
probation term ends by suspending the imposition of sentence, relying on State ex rel. Connett v.
Dickerson, 833 S.W.2d 471 (Mo. App. 1992). This argument is misplaced. In Connett, the trial
court revoked the defendant’s first probation term and placed him on a second five-year
probation term, but did not impose a sentence. Id. at 472. The court of appeals determined that
because the trial court did not impose a new sentence on the defendant, it “in effect” continued
his probation pursuant to section 559.036.3, as opposed to discharging the defendant from
probation. Id. at 475. Connett is not instructive as the trial court in the present cases did not
revoke the Defendants’ probation. Nor does Connett stand for the proposition that a court may
circumvent the requirements of section 559.036.8 by suspending the imposition of sentence.
        Likewise, suspending probation without deciding whether probation should be revoked,
as the trial court did in each of these cases, does not relieve a court from meeting both of the
conditions provided by section 559.036.8. While a court may suspend probation upon a motion
to revoke, the suspension cannot last indefinitely. See section 559.036.7; Starry v. State, 318
S.W.3d 780, 784-85 (Mo. App. 2010); State ex rel. Limback v. Gum, 895 S.W.2d 663, 665 (Mo.
App. 1995). Rather, probation will remain suspended only until the court rules on the revocation
motion. Section 559.036.7 (emphasis added). This section makes it incumbent on the court to
rule on a pending revocation motion. Further, statutory provisions are not read in isolation, but
are construed together. See Bachtel v. Miller Cnty. Nursing Home Dist., 110 S.W.3d 799, 801
(Mo. banc 2003). When sections 559.036.7 and 559.036.8 are read together, it is clear that a
court must rule on the revocation motion before the probation term ends unless it meets the two
conditions outlined in the statute.
                                                               6
 
issue here is whether it made every reasonable effort to conduct the revocation hearings

during the Defendants’ probation terms.

                         Application to Strauser and Edmonds

       Strauser’s five-year probation, which was imposed on June 4, 2007, ended on June

4, 2012. During this period, the trial court manifested its intent to conduct the revocation

hearing by suspending her probation after the State filed a motion to revoke and

scheduling a revocation hearing for September 10, 2007. See State v. Roark, 877 S.W.2d

678, 680 (Mo. App. 1994) (finding a manifestation of intent where trial court scheduled a

revocation hearing for a date prior to the expiration of probation); White, 373 S.W.3d at

485 (noting that “the issuance of a warrant, the filing of a motion to revoke probation,

[or] the scheduling of a revocation hearing” will suffice as a manifestation of intent).

       Instead of ruling on the motion, however, the trial court continued the hearing 37

times in between when it scheduled the initial revocation hearing and when Stauser’s

probation ended. Strauser always appeared and made the required restitution payments.

She also appeared eight more times for case reviews after her probation ended. Because

the trial court could have ruled on the revocation motion on any of these numerous

occasions, but chose not to, it did not make every reasonable effort to hold the hearing

during her probation term to satisfy section 559.036.8.

       Edmonds’ case follows a very similar analysis. She was first placed on a five-year

probation term on September 4, 2003, which ended on September 4, 2008. The trial

court manifested its intent to hold a revocation hearing when it suspended her probation

on July 21, 2008, and scheduled a revocation hearing for September 4, 2008. Even

                                              7
 
though she appeared in court that day, the trial court did not issue a ruling. Instead, it

held 23 continuations of the hearing or case reviews from September 4 until February 4,

2013. The trial court did not make every reasonable effort to conduct the revocation

hearing during Edmonds’ probation term because it had the opportunity to hold the

hearing on September 4, 2008, but instead continued the case for more than four years

after her probation ended.

       Relying on Petree v. State, 190 S.W.3d 641 (Mo. App. 2009), the State argues that

the Defendants are not entitled to relief because they did not show they were ready to

proceed with the hearing during their probation. In Petree, like the instant cases, the

defendant was placed on a five-year probation term. Id. at 642. Prior to the expiration of

the probation term, the court held a revocation hearing, but Petree requested a

continuance to obtain counsel. Id. The court continued the hearing until five months

after the probation expired, at which time it revoked his probation. Id. On appeal, Petree

argued the trial court did not make every reasonable effort to hold the hearing before his

probation expired. Id. The court of appeals noted, however, that Petree himself asked for

the continuance and that the lower court held the hearing as soon as his counsel entered

an appearance. Id. at 643.

       The instant cases are clearly distinguishable because the record does not indicate

that either Strauser or Edmonds requested the continuances, nor was it their duty to

ensure the trial court ruled on the pending revocation motions. Nothing in section

559.036.8 suggests that the defendant must prove he or she is ready to proceed. Rather,



                                              8
 
the language clearly states that the “power of the court” to hold a revocation hearing only

extends beyond a probation term if the two conditions listed in the statute are met. 4

              A more factually analogous case to the present cases is State ex rel. Whittenhall v.

Conklin, 294 S.W.3d 106 (Mo. App. 2009). In that case, like in the instant cases, the

defendant was placed on a five-year probation term with the condition he make

restitution payments. Id. at 107. He failed to make all required payments and appeared

at a revocation hearing one week prior to the end of his probation. Id. Instead of issuing

a ruling, the trial court continued to reset the hearing date until approximately three years

after the probation ended. Id. at 110. In reviewing the trial court’s action, the court of

appeals found that the trial court exceeded its authority to revoke the defendant’s

probation. Id. at 111.

              Likewise in these cases, the trial court could have held the revocation hearings

when Strauser and Edmonds appeared during their probation terms, but instead it

continued the hearings until well after their probation terms expired. The trial court did
                                                            
4
  Section 559.036.8 also does not require the Defendants to show prejudice, as the State contends
they must. The State relies on State ex rel. Carlton v. Haynes, 552 S.W.2d 710, 714-15 (Mo.
banc 1977), which states that a court does not lose authority to hold a probation revocation
hearing after a probation term expired “unless the resulting delay was unreasonable and
prejudicial to the petitioner.” This argument is incorrect for two reasons. First, Carlton was
decided before section 559.036 was in effect. Second, it conflates “unreasonable delay” and
“every reasonable effort.” If a defendant claims he was harmed by “an unreasonable delay” in
holding a revocation hearing, then he would have to show he was prejudiced by that delay. See
Ewing v. Wyrick, 535 S.W.2d 442 (Mo. banc 1976) (noting that, in a case in which the court held
a revocation hearing within the defendant’s probation term, “petitioner is not entitled to relief by
reason of . . . any delay in holding the final [probation] revocation hearing unless he was
prejudiced thereby.”). At issue in the present cases, however, is not whether there were
“unreasonable delays” in holding the revocation hearings, but whether the trial court made
“every reasonable effort” to conduct the hearings before the Defendants’ probation terms ended
pursuant to section 559.036.8, and nothing in that statute suggests the Defendants must show
they suffered prejudice.

                                                               9
 
not make every reasonable effort to conduct the revocation hearings during their

probation terms. See also State ex rel. Breeding v. Seay, 244 S.W.3d 791 (Mo. App.

2008) (finding that the lower court did not make every reasonable effort to hold a

probation revocation hearing when defendant appeared twice during his probation, but

the court continued the hearing until one year after his probation ended).

                                                               Conclusion

              The trial court’s actions here were understandable. The court was attempting to

ensure the maximum restitution payments while avoiding imprisonment for the

Defendants. Unfortunately, the statute does not permit that. 5 In each case, the trial

court’s failure to make every reasonable effort to rule on the pending probation

revocation motion while the defendant was still on probation divested it of the authority

to conduct revocation hearings beyond the five-year probation term. The preliminary

writs of prohibition are made permanent.



                                                                            ________________________
                                                                            Mary R. Russell, Chief Justice


Breckenridge, Stith, Draper,
Wilson and Teitelman, JJ.,
concur; Fischer, J., concurs
in separate opinion filed.

                                                            
5
 However, recent legislative changes to another statute, section 559.105, will give trial courts
more flexibility in situations in which a defendant fails to make full restitution during the
probation term. See 2013 Mo. Legis. Serv. 338 (West). Section 559.105.2 now provides that a
probationer ordered to pay restitution shall not be released from probation until restitution is
complete and “[i]f full restitution is not made within the original term of probation, the court
shall order the maximum term of probation allowed for such offense.” Id.
                                                                  10
 
            SUPREME COURT OF MISSOURI
                                      en banc

STATE ex rel. AMY STRAUSER                     )
                                               )
             Relator,                          )
                                               )
v.                                             )      No. SC93340
                                               )
THE HONORABLE SANDY MARTINEZ,                  )
                                               )
             Respondent.                       )

(Consolidated with)

STATE ex rel. SHARON EDMONDS,                  )
                                               )
             Relator,                          )
                                               )
v.                                             )      No. SC93345
                                               )
THE HONORABLE SANDY MARTINEZ,                  )
                                               )
             Respondent.                       )

                              CONCURRING OPINION

      I concur in the principal opinion. The circuit court involved here would not have

anticipated that the generosity it extended to Amy Strauser and Sharon Edmonds—in the

form of granting them another chance to complete probation without a conviction on their

record and without incarceration even after they failed to comply with the terms of their

probation—would be "rewarded" with the court losing the legal authority to revoke
probation when these probationers once again violated the terms of their respective

probation.

       In light of the fact that § 559.036.8, RSMo Supp. 2012, requires that "every

reasonable effort" be made to notify the probationer and to conduct the hearing prior to

the expiration of the probationary period, future circuit courts in situations like those at

issue here will undoubtedly—at a minimum—revoke probation, impose a sentence, and

thereafter suspend the execution of the sentence so an additional term of probation can be

ordered, resulting in a conviction on the probationer's criminal record. Alternatively,

circuit courts faced with this dilemma will likely revoke probation, impose a sentence,

and order the sentence to be executed.

       This Court's authority to issue an extraordinary writ is always a matter of

discretion, and a probationer who absconds near the end of a probationary term or

otherwise contributes to the cause of the supervising court's failure to notify the

probationer or conduct probation revocation proceedings prior to the expiration of the

probation term should not necessarily expect this Court to view the situation to be so

extraordinary as to justify the issuance of a writ of prohibition. 1

       Further, the legislature amended § 559.105, effective August 28, 2013, which will

make it rarer for a similar case regarding failure to satisfy restitution as a condition of

probation to result in the loss of legal authority to revoke probation. Section 559.105.2,

1
 The statutory requirement to use "every reasonable effort" to conduct a hearing within the term
of probation, in my view, does not prevent a supervising court that has timely suspended
probation pursuant to § 559.036.7 and manifested an intent to proceed with the revocation
proceeding by issuing a warrant from conducting the revocation hearing whenever the
probationer is returned to the supervising court for revocation proceedings.

                                               2
RSMo Supp. 2013, provides that a probationer ordered to pay restitution shall not be

released from probation until restitution is complete, and "[i]f full restitution is not made

within the original term of probation, the court shall order the maximum term of

probation allowed for such offense." However, as most sentencing courts already give

the maximum five-year probation term when ordering a probationer to pay a significant

amount of restitution, the 2013 amendment to section 559.105.3 likely will result in the

more significant change in sentencing practice. Section 559.105.3 now provides for

restitution to be a condition of parole and requires the board of probation and parole not

to "release any person from any term of parole … until the person has completed such

restitution, or until the maximum term of parole for such offense has been served." This

amendment repeals the prior prohibition against requiring a prisoner both to serve a

prison term and to pay restitution and, therefore, relieves sentencing courts from having

to choose between a prison term and restitution—a choice that today's decision makes

harder than ever. Instead, under the new section 559.105.3, anytime a sentencing court

believes that a prison term is warranted—or does not believe that the defendant will make

full restitution within the maximum five-year probation period—the court can remand the

defendant to the department of corrections for a lengthy term and be assured that the

defendant will be required to pay restitution during the portion of that term that the

defendant is on parole. The fact that such an approach avoids the catch-22 created by

today's decision, increases time to pay restitution while on parole, and reduces the circuit

courts' already overburdened probation review dockets will make such an approach very

difficult to resist.


                                             3
      In conclusion, as defendants' counsel in these cases admitted in oral argument, this

Court's decision will operate to the distinct disadvantage of many future defendants.

However, this Court is obligated to adhere to the words of the statute, and any

adjustments to the balance struck by section 559.036.8 (as now declared by this Court)

and the 2013 amendments to section 559.105 must be made by the General Assembly.



                                               __________________________
                                               Zel M. Fischer, Judge




                                           4
