Section 27.26 In General

• Library: Criminal Practice 2012 Supp

A. (§27.26) In General

Sections 559.600–559.615, RSMo 2000, deal with matters involving probation. Probation is the process in which a defendant has pled guilty to or been found guilty of a crime and the court releases the defendant without imprisonment or other incarceration. Probation is distinguished from parole, which is the release by a court or the Board of Probation and Parole after the defendant has served a portion of the sentence that was imposed.

Following the imposition of the sentence the court may grant probation whereby the execution of the sentence is stayed during the defendant’s probation period, or the court may grant probation following a suspension of imposition of sentence. A defendant has no right to probation as it is “a privilege which may be granted or withheld in the discretion of the sentencing court.” Smith v. State, 517 S.W.2d 148, 150 (Mo. 1974); see also State v. Stout, 960 S.W.2d 535 (Mo. App. E.D. 1998). Once probation is granted, however, the defendant has a right to continued probation until the probation is taken away by due process of law. Smith, 517 S.W.2d at 150.

Under § 559.012, RSMo 2000, the defendant may be placed on probation by the court for a specified period of time if the court determines that institutional confinement is not necessary for the protection of the public and that the defendant is in need of guidance, training, or other assistance that can be effectively administered through probation supervision.

If the court determines that probation is to be granted, the probation remains conditional and subject to revocation. The court may also extend a period of probation, but no more than one extension may be ordered. The total time of any probation term, including the extension, cannot exceed the maximum term as follows:

(1) A term of years not less than one year and not to exceed five years for a felony;

(2) A term not less than six months and not to exceed two years for a misdemeanor;

(3) A term not less than six months and not to exceed one year for an infraction.

Section 559.016, RSMo 2000.

Note: House Bill 353, 93^rd Gen. Assembly, 1^st Reg. Sess. (Mo. 2005) (awaiting signature by the Governor at the time of publication of this deskbook) amends § 559.016.3 by allowing the court to extend the total time a defendant may be on probation by one additional year if the defendant admits the violation of the probation or if the court finds that the defendant violated the probation. It effectively extends the...