Opinion
No. WD 66268
November 14, 2006
Appeal from the Circuit Court of Cole County, Missouri, The Honorable Richard G. Callahan, Judge
Before: Howard, P.J., and Ellis and Hardwick, JJ.
Joshua Donaldson appeals from a final judgment of the Circuit Court of Cole County, which granted summary judgment to Larry Crawford, the Director of the Missouri Department of Corrections ("MDOC"), on Donaldson's petition seeking a declaration that MDOC should credit his sentence for time served. The circuit court determined that MDOC could not credit Donaldson for time served on his sentence for sale of a controlled substance because discretion to credit time served is vested in the sentencing court under sections 558.031.1(3) and 559.100.2. Donaldson raises two points on appeal. First, he contends that the circuit court erred in granting summary judgment to Crawford on its stated basis that the decision to credit him with time served is left to the discretion of the sentencing court because as a matter of law the sentencing court has no role in allowing credit for time served in that section 558.031.1 requires MDOC to credit an offender for time served in custody. Second, Donaldson contends that the circuit court erred in failing to enter summary judgment in his favor because he was entitled to credit for 742 days served in custody in that his incarceration in Maries County for escape from confinement was related to his Camden County probation violation.
All statutory references are to RSMo 2000.
We reverse and remand.
Factual and Procedural Background
On January 7, 1998, Donaldson committed the offense of sale of a controlled substance. Donaldson was convicted of that offense in Camden County Circuit Court on June 12, 2000, Case No. CR298-46FX ("Case 1"). Donaldson was sentenced to a term of ten years' imprisonment, but execution of the sentence was suspended and he was placed on probation for a period of five years, to be served concurrently with any other sentence he was serving.
On January 30, 2002, Donaldson was arrested in Phelps County and transported to Maries County based on warrants for forcible rape and armed criminal action. Also on January 30, 2002, Donaldson escaped from confinement at the Maries County Jail and was recaptured. As a result of his escape, Donaldson was charged in Maries County Circuit Court with escape from confinement, and his probation office issued a violation warrant charging him with violating a condition of his probation by violating the law. On February 15, 2002, the Camden County Circuit Court issued a capias warrant for Donaldson for violating the terms of his probation by escaping from confinement. On April 26, 2002, the Missouri Board of Probation and Parole filed a formal field violation report alleging that Donaldson had violated his probation by, among other things, escaping from confinement on January 30, 2002. Donaldson pled guilty to escape from confinement on October 1, 2002, and was sentenced to a term of three years in Case No. CR202-29FX ("Case 2"). From January 30, 2002, until October 2, 2002, Donaldson was held in the Maries County Jail. From the time of his arrest on Case 2 on October 2, 2002, to January 29, 2004, Donaldson was held in MDOC serving his sentence in Case 2. MDOC credited 245 days Donaldson spent in the Maries County Jail as time served on his sentence for escape in Case 2.
The sentence and judgment read: "On Count I, the Court: Sentences and commits the defendant to the custody of the Missouri Department of Corrections for a period of three years. Sentence to be served concurrent with sentence of 10 years in Camden County."
On January 29, 2004, MDOC conditionally released Donaldson subject to a Camden County detainer concerning Donaldson's probation violation in Case 1. On February 9, 2004, the Camden County Circuit Court revoked Donaldson's probation in Case 1 because of his escape from confinement in Maries County and for unrelated reporting and residency violations. Donaldson was received in MDOC on February 11, 2004, in Case 1. Crawford thereafter credited Donaldson with 27 days' time served in Case 1 in the Camden County Jail. The MDOC did not credit the time from January 30, 2002, to January 29, 2004, while Donaldson was on probation in Case 1 but in the custody of the Camden County Jail and MDOC. MDOC counted that period as time served in Case 2, but not time served in Case 1 because Donaldson was still on probation in Case 1.
Donaldson sought administrative relief within MDOC, alleging entitlement to credit on his Camden County sentence in Case 1 for the entire period from January 30, 2002, to February 9, 2004. MDOC denied Donaldson's claim, finding, among other things, that "the Judge will have to order credit for time served on Probation."
On June 6, 2005, Donaldson filed his petition for a declaratory judgment against Crawford, seeking a declaration that MDOC should credit his Camden County sentence for the time from January 30, 2002, to February 9, 2004, that he was incarcerated in the Maries County Jail and MDOC, even though he was on probation on the Camden County sentence in Case 1 during that period. Crawford filed an answer, a motion for summary judgment, and a legal memorandum in support of the motion for summary judgment. The thrust of these pleadings was that, by Missouri statutory law, MDOC may not award credit for probation on a sentence because that is left to the discretion of the sentencing judge.
Donaldson filed an answer to the motion for summary judgment, which also functioned as a cross-motion for summary judgment, and a legal memorandum in support of that pleading. In those pleadings, Donaldson claimed that it is MDOC, not the sentencing judge, who is responsible for determining the credit to be awarded while he was on probation for the Camden County sentence.
On October 12, 2005, the circuit court entered summary judgment in favor of Crawford, asserting that "[t]he Department of Corrections may not award the time Donaldson seeks on case CR298-46FX because that decision is left to the discretion of the sentencing court under § 558.031.1(3), RSMo 2000 and § 559.100.2, RSMo 2000." Donaldson appeals.
Standard of Review
ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), set forth the applicable standard of review as follows:
When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
(Citations omitted.)
Discussion
Donaldson's first point on appeal is that the circuit court erred in granting summary judgment to Crawford on its stated basis that the decision to credit Donaldson with time served is left to the discretion of the sentencing court because, as a matter of law, the sentencing court has no role in allowing credit for time served, in that section 558.031.1 requires MDOC to credit an offender for time served in custody when custody was related to that offense. Donaldson contends that, under section 558.031.1, MDOC was required to credit him in Case 1 with the amount of time served while in the custody of Maries County and MDOC.
MDOC argues that section 558.031.1(3) explicitly excludes time spent on probation from time MDOC can credit as time served. MDOC further claims that section 559.100.2 makes the decision of whether to award credit for time served on probation a matter for the discretion of the sentencing court. The circuit court agreed with MDOC's reading of these statutes.
Section 558.031.1, affecting the commencement of a sentence of imprisonment and credit for time spent in custody, which was adopted by the legislature in 1995, provides as follows:
1. A sentence of imprisonment 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, except:
(1) Such credit shall only be applied once when sentences are consecutive;
(2) Such credit shall only be applied if the person convicted was in custody in the state of Missouri, unless such custody was compelled exclusively by the state of Missouri's action; and
(3) As provided in section 559.100, RSMo.
(Emphasis added.)
Formerly, there was no exception in section 558.031.1 for a reference to section 559.100, and provided, in pertinent part:
1. A person convicted of a crime in this state shall receive as credit toward service of a sentence of imprisonment all time spent by him in prison or jail both while awaiting trial for such crime and while pending transfer after conviction to the department of corrections or the place of confinement to which he was sentenced. Time required by law to be credited upon some other sentence shall be applied to that sentence alone, except that
(1) Time spent in jail or prison awaiting trial for an offense because of a detainer for such offense shall be credited toward service of a sentence of imprisonment for that offense even though the person was confined awaiting trial for some unrelated bailable offense; and
(2) Credit for jail or prison time shall be applied to each sentence if they are concurrent.
Interpreting this earlier version of section 558.031, the Missouri Supreme Court has said: "[T]his statutory scheme contemplates an administrative and not a judicial determination of the jail time to be credited, with no sharing of jurisdiction between the two branches of government." State ex rel. Jones v. Cooksey, 830 S.W.2d 421, 425 (Mo. banc 1992). "[Section] 558.031 appears clearly to contemplate that the department, and not the sentencing court, is to be the actor in the crediting of jail time." Id. at 424.
However, with the addition of section 558.031.1(3), uncertainty now exists in interpreting the interaction of that statute with section 559.100. Section 559.100, governing the circuit court's powers regarding probation and parole, and credit for time served, which was adopted by the legislature in 1990, provides:
1. The circuit courts of this state shall have power, herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction, except as otherwise provided in sections 195.275 to 195.296, RSMo, section 558.018, RSMo, section 565.020, RSMo, section 571.015, RSMo, and section 559.115.
2. The circuit court shall have the power to revoke the probation or parole previously granted and commit the person to the department of corrections. The circuit court shall determine any conditions of probation or parole for the defendant that it deems necessary to ensure the successful completion of the probation or parole term, including the extension of any term of supervision for any person while on probation or parole. The circuit court may require that the defendant pay restitution for his crime. The probation or parole may be revoked for failure to pay restitution or for failure to conform his behavior to the conditions imposed by the circuit court. The circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence.
(Emphasis added.) MDOC argues that it is this last sentence of section 559.100.2, and the fact that the circuit court ordered the previously imposed sentence of ten years executed on the probation revocation in Case 1, without provision for credit for time served in Case 2, that prevents them from crediting Donaldson with the time served on the sentence in Case 2.
In interpreting statutes, this court must "'ascertain the intent of the legislature.'" State v. Stottlemyre, 35 S.W.3d 854, 859 (Mo.App.W.D. 2001) (quoting Habjan v. Earnest, 2 S.W.3d 875, 881 (Mo.App. 1999)). To ascertain the legislature's intent, we "first look to the plain and ordinary meaning of the language used in the relevant statutes." Id. "Only where the intent of the legislature cannot be determined by the language used will a statute be considered ambiguous." Id. "'Where two statutes concerning the same subject matter, when read individually, are ambiguous, but conflict when read together, [this court] will attempt to reconcile them and give effect to both.'" Id. (quoting Habjan, 2 S.W.3d at 881). If such reconciliation is not possible, this court will give deference to a specific statute over a general one, especially where the more specific statute was enacted after the general one. Id. at 860.
We find that section 559.100.2 clearly relates to the circuit court's discretion, with regard to probation revocation, to "credit any period of probation or parole as time served on a sentence." Thus, section 559.100 deals with credits for probation or parole time. Section 558.031.1 clearly states that a person received into the custody of MDOC "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. . . ." Thus, section 558.031 deals with credits for time in custody where related to that offense.
Donaldson is asking the MDOC to credit his time in custody, not for credit while he was serving his sentence while "free" on probation in Case 1. Under section 559.100, the circuit court only has discretion to grant credit for periods of time the defendant was "free" on probation or parole. In reconciling section 558.031.1(3) as an exception referencing section 559.100 and affecting MDOC's mandatory obligations to credit for time in custody, we find that it means that MDOC must recognize a credit granted by the circuit court for a period of probation or parole, in addition to any time in custody MDOC is required to grant for time in custody related to that offense.
The question, therefore, becomes one of whether Donaldson's time in custody on Case 2 "related to" the execution of his original sentence of ten years for violating his probation in Case 1.
In his second point on appeal, Donaldson contends that the circuit court erred in failing to grant his summary judgment motion seeking credit for time served in Case 2 as applied to Case 1 because his time served in custody was related to both offenses.
In support of his contentions, Donaldson relies on Goings v. Missouri Department of Corrections, 6 S.W.3d 906 (Mo. banc 1999). In that case, Goings was arrested on a stealing charge in Stoddard County in 1996 while on parole from an earlier conviction in Franklin County. Id. at 906-07. MDOC refused to give Goings credit against the Stoddard County sentence for time served in custody after he was returned to prison on the parole violation. Id. at 907. The State argued that the time Goings spent in custody awaiting trial on the stealing charge was not eligible for credit to his sentence on that charge because, as a parole violator, Goings was not eligible to be free on bond pending sentencing on the stealing charge. Id. at 908. Thus, the State was essentially arguing that his custody was related to his parole violation and not the stealing charge, and that, therefore, no credit on the stealing sentence was available.
The Missouri Supreme Court disagreed, finding that section 558.031 is not so limited and requires only "that the time in custody be 'related to' the offense." Id. Noting that criminal statutes are "'construed strictly against the [s]tate and liberally in favor of the defendant,'" the Missouri Supreme Court held that "[t]he statute's use of the very broad term 'related to' instead of, for example, 'caused by' or 'the result of' compels the conclusion that his custody can be 'related to' both offenses and the statutory credit will nevertheless apply." Id.
Quoting State v. Jones, 899 S.W.2d 126, 127 (Mo.App. 1995), and State v. Liffick, 815 S.W.2d 132, 134 (Mo.App. 1991).
Importantly, Donaldson was subject to a capias warrant for his arrest on his probation violation in Case 1, the basis of which was related, in part, to his escape from confinement charge in Case 2. But for this warrant, Donaldson may have been eligible to be released from custody on bail in Case 2. With the warrant, Donaldson was not eligible to be free on bail prior to a hearing on Case 2, but was in custody awaiting the circuit court's determination of his probation violation for however long it took to conclude that matter. Although MDOC in this case takes the reverse of its position in Goings, arguing that Donaldson's custody prior to trial in Case 2 was applicable only to credit on the sentence in Case 2, we find the holding of Goings that "custody can be 'related to' both offenses and the statutory credit will nevertheless apply," to be dispositive in this case. Id. at 908.
Section 559.036.5 provides:
The prosecuting or circuit attorney may file a motion to revoke probation or at any time during the term of probation, the court may issue a notice to the probationer to appear to answer a charge of a violation, and the court may issue a warrant of arrest for the violation. Such notice shall be personally served upon the probationer. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court. Upon the filing of the prosecutor's or circuit attorney's motion or on the court's own motion, the court may immediately enter an order suspending the period of probation and may order a warrant for the defendant's arrest. The probation shall remain suspended until the court rules on the prosecutor's or circuit attorney's motion, or until the court otherwise orders the probation reinstated.
We recognize that a person charged with escape from confinement would likely not be granted the opportunity to post bail due to the risk involved; however, Donaldson could have been subject to a capias warrant for violating any number of statutes not related to an escape charge with the same result.
MDOC argues that the facts in State ex rel. Nixon v. Kelly, 58 S.W.3d 513 (Mo. banc 2001), are more similar to Donaldson's case and should control our decision. In Kelly, the defendant was arrested for sexual assault of a minor stepdaughter on two counts related to two different time periods. Id. at 515. The defendant was convicted of one count, which he appealed, and the trial court ordered a new trial on the second count. Id. The judgment on the first count was affirmed, and the defendant began serving a seven-year sentence. Id. He was retried on the second count and convicted, upon which he sought credit for time served in the first sentence. Id.
The Missouri Supreme Court determined that "[i]t is not the relationship of the specific facts underlying two convictions, or the fact that two charges were initially tried at the same time and involved the same victim, that is determinative of jail-time credit for purposes of section 558.031 . . . [but] it is to 'the time in custody' that the second conviction must be related." Id. at 518-19.
It is true some of the facts surrounding both convictions are similar because they both involved sexual assaults of the same victim, and that similarity permitted the State to charge and try [the defendant] for the two crimes at the same time. But Respondent cites no authority for the proposition that, under these facts, [the defendant's] time in custody on Conviction I also constitutes time in custody related to Conviction II. To the contrary, and unlike in Goings, even absent [the defendant's] arrest, trial or conviction on Conviction II, he would have been in prison on Conviction I. Absent Conviction I, there is nothing in the record to indicate that he would not have been out on bail on the charge that resulted in Conviction II until he was convicted of it on May 13, 1996. [The defendant's] time in prison prior to May 13, 1996, related solely to Conviction I. For these reasons, he is not entitled to jail-time credit on Conviction II for that period.
Id. at 519. The Missouri Supreme Court noted that the facts in Goings and Kelly were different, and we find that the Goings reasoning is determinative in Donaldson's case.
We reverse and remand for the circuit court to enter judgment in accordance with this opinion.
Ellis and Hardwick, JJ., concur.