Section 27.29 Revocation and Method of Appeal of Revocation

• Library: Criminal Practice 2012 Supp

D. (§27.29) Revocation and Method of Appeal of Revocation

The granting of probation to a defendant is considered a privilege and not a right. 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 § 559.036.4, RSMo 2000, this requires that the defendant be given notice and an opportunity to be heard on the issues of whether the defendant violated the conditions of the probation and, if so, whether revocation of the probation is warranted after consideration of all the issues. See State ex rel. Beaird v. Del Muro, 98 S.W.3d 902 (Mo. App. W.D. 2003); State ex rel. Boyle v. Sutherland, 77 S.W.3d 736 (Mo. App. E.D. 2002). The burden of proof in a revocation of probation is preponderance of the evidence. See State ex rel. Cooper v. Hutcherson, 684 S.W.2d 857 (Mo. App. W.D. 1984).

Note: Under H.B. 353 , 93^rd Gen. Assembly, 1^st Reg. Sess. (Mo. 2005) (passed and awaiting signature of the Governor at the time of publication of this deskbook), amended § 559.036.5, RSMo, allows the court to immediately enter an order suspending a defendant’s probation and to issue a warrant for the defendant’s arrest upon a filing by the prosecuting attorney or a circuit attorney of a motion to revoke the probation or upon the court’s own motion. The defendant’s probation will be suspended until a ruling on the motion by the court or until the court otherwise orders the reinstatement of the probation.

The court has the power to revoke the defendant’s probation at any time during the probation period set by the court. It also extends for a further period if it is reasonably necessary for the adjudication of matters arising before the period expires, but some affirmative manifestation of the intent to conduct a revocation hearing must occur before the expiration of the probation period, and every reasonable effort must be made to notify the defendant and conduct the hearing before the expiration. Section 559.036.6. This issue has been litigated several times in the Missouri courts. The general rule regarding probation revocation is that no appeal may be taken and that errors in the probation revocation hearing should be...