Criminal Law

Ellen H. Flottman, Esquire

Failing to make every reasonable effort to hold probation revocation hearings during the term of probation divested the court of the authority to do so once the probationary periods ran. State ex rel. Strauser, et al. v. Martinez, No. 93340, consolidated with No. 93345 (Mo. Banc, January 14, 2014), Russell, J.

Defendants seek a writ of prohibition to prevent the trial court form holding probation revocation hearings after their probation terms ended.

Writs made permanent. Although the trial court was attempting to allow the maximum time possible for probationers to pay their restitution before being revoked, the trial court lost the authority to revoke probation under § 559.036.8. Judge Fischer, concurring, points out that judges will now be more likely to revoke probation rather than lose the authority to do so.

In the absence of a record revealing why a probation revocation hearing was not held or a reasonable attempt to do so was not made, the trial court had no authority to revoke postconviction movant’s probation. Timberlake v. State, No. 32580 (Mo. App. S.D., January 31, 2014), Francis, C. J.

Postconviction movant appeals the denial of his motion following a guilty plea, in which he alleged that the trial court erred in revoking his probation after the probationary term had expired.

Held:  Reversed and remanded.
The record is silent of any evidence that the trial court made a reasonable effort to hold a revocation hearing before the expiration of the probationary period. See, State ex rel. Strauser v. Martinez, ___ S.W.3d ___, 2014 WL 120624 (Mo. banc, filed January 14, 2014).

Rosalynn Koch, Esquire

Appeal from conviction and fine is moot if defendant voluntarily paid the fine before taking appeal. State v. Castro, No. 75878 (Mo. App. W.D., January 14, 2014), Witt, J.

Defendant was sentenced to a fine, which he paid voluntarily the day of sentencing. One week later he filed a notice of appeal.

Held: Dismissed as moot
. When the sentence is solely a fine, a defendant who pays it before filing an appeal must do so under circumstances showing that his payment is not voluntary. Here the defendant gave no indication that he was paying under protest; he did not request the trial court to stay the fine pending appeal; and he did not file an appeal bond in lieu of payment.

Sentencing court’s consideration of conduct for which defendant was acquitted at trial does not violate the Missouri Constitution. State v. Davis, No. 99135 (Mo. App. E.D., January 14, 2014), Clayton, J.

The defendant was charged with offenses arising out of incidents involving two different alleged victims. He was convicted for the conduct relating to one and acquitted of all charges relating to the other. At sentencing the court permitted both complainants to make a statement about punishment.

Held: Affirmed.
The court did not punish defendant for conduct related to the acquitted charges, but instead merely considered it in assessing punishment. This did not violate Missouri’s double jeopardy protections.

Postconviction movant was entitled to evidentiary hearing on claim that defense counsel permitted a biased juror to serve. Kyles v. State, No. 99632 (Mo. App. E.D., January 21, 2014), Cohen, J.

Rule 29.15 movant alleged that his counsel was ineffective for filing to strike a venire person who indicated that he might have a problem with the case because he had been a victim of a similar offense.

Held: Reversed and remanded
. The record did not establish conclusively that counsel’s strategy in not striking the juror was reasonable, so a hearing was required.

Where there was a dispute as to defendant deputy sheriff’s lawful authority to enter residence to make an arrest, the court plainly erred at his subsequent trial for burglary and property damage in not defining “unlawful entry” and in failing to instruct the jury the law encompassed in statutes authorizing a law enforcement officer to use lawful force to enter premises. State v.
No. 99088 (Mo. App. E.D., January 28, 2014), Dowd, J.

While assisting in an arrest, the defendant kicked in the door of a trailer and went inside, and later assaulted the arrestee. The defendant had statutory authority to enter but the arrestee did not live at the residence and there was a question as to whether defendant reasonably believed the arrestee was inside. Defendant was convicted of burglary, property damage, and assault.

Held:  Reversed in part.
As to the property damage and burglary, defendant had statutory authority to make arrests outside his county, but the lawfulness of the arrest was at issue. The court plainly erred in submitting a verdict director that did not define “unlawful entry” and did not incorporate in its instructions §§ 563.021 and 544.200, which permit law enforcement to break and enter under certain circumstances.