Section 28.21 Judicial Parole

• Library: Criminal Practice 2012 Supp

I. (§28.21) Judicial Parole

Section 558.046, RSMo 2000, allows the sentencing court, upon petition, to reduce any sentence at any time if the crime involved alcohol or illegal drugs, the crime did not involve violence or threat of violence, and the convicted person has successfully completed a detoxification and rehabilitation program. This section, however, does not apply to prior offenders, persistent offenders, or persistent sexual offenders as defined in §§ 558.016 and 558.019, RSMo Supp. 2004, and § 558.018, RSMo 2000. Because § 558.046 gives the sentencing court total discretion to reduce a sentence or probation term, or parole, there is no final judgment to appeal, and the appellate courts have no power to review or revise this decision. State v. Stout, 960 S.W.2d 535, 537 (Mo. App. E.D. 1998) (citing Smith v. State, 517 S.W.2d 148, 150 (Mo. 1974), and State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994)).

Section 558.016.8 allows an offender convicted of a nonviolent class C or class D felony with no prior prison commitments, after serving 120 days of the sentence, to petition the court to serve the remainder of the sentence on probation, parole, or other court-approved alternative sentence.

No hearing shall be conducted unless the court deems it necessary. Upon the offender petitioning the court, the department of corrections shall submit a report to the sentencing court which evaluates the conduct of the offender while in custody, alternative custodial methods available to the offender, and shall recommend whether the offender be released or remain in custody. If the report issued by the department is favorable and recommends probation, parole, or other alternative sentence, the court shall follow the recommendations of the department if the court deems it appropriate. Any placement of an offender pursuant to section 559.115, RSMo, shall be excluded from the provisions of this subsection.

Section 558.016.8 (emphasis added).

In State ex rel. Nixon v. Russell, 129 S.W.3d 867, 870–71 (Mo. banc 2004), the Supreme Court focused on the mandatory language of § 558.016.8. The Court found that this statute was similar to § 217.362.3, RSMo Supp. 2004, the long-term substance abuse addiction program, in that it mandates the court to follow the recommendation of the Board unless the recommendation would be an abuse of discretion. The Court concluded in State ex rel. Beggs v. Dormire, 91 S.W.3d 605 (Mo. banc 2002), that, under § 217.362.3, the sentencing...