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...