Modifies provisions relating to earned discharge from probation

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1357
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR WASHINGTON.
4757S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 217.703 and 559.036, RSMo, and to enact in lieu thereof one new section
relating to earned discharge from probation, with existing penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 217.703 and 559.036, RSMo, are 1
repealed and one new section enacted in lieu thereof, to be 2
known as section 559.036, to read as follows:3
559.036. 1. A term of probation commences on the day 1
it is imposed. Multiple terms of Missouri probation, 2
whether imposed at the same time or at different times, 3
shall run concurrently. Terms of probation shall also run 4
concurrently with any federal or other state jail, prison, 5
probation or parole term for another offense to which the 6
defendant is or becomes subject during the period. 7
2. The court may terminate a period of probation and 8
discharge the defendant at any time before completion of the 9
specific term fixed under section 559.016 if warranted by 10
the conduct of the defendant and the ends of justice. The 11
court may extend the term of the probation, but no more than 12
one extension of any probation may be ordered except that 13
the court may extend the term of probation by one additional 14
year by order of the court if the defendant admits he or she 15
has violated the conditions of probation or is found by the 16
court to have violated the conditions of his or her 17
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probation. Total time on any probation term, including any 18
extension shall not exceed the maximum term established in 19
section 559.016. Total time on any probation term shall not 20
include time when the probation term is suspended under this 21
section. Procedures for termination, discharge and 22
extension may be established by rule of court. 23
(1) The division of probation and parole shall file a 24
notification of earned discharge from probation with the 25
court for any defendant who has completed at least twenty- 26
four months of the probation term and is compliant with the 27
terms of supervision as ordered by the court and division. 28
The division shall not file a notification of earned 29
discharge for any defendant who has not paid ordered 30
restitution in full, is on a term of probation for any class 31
A or class B felony, or is subject to lifetime supervision 32
under sections 217.735 and 559.106. The division shall 33
notify the prosecuting or circuit attorney when a 34
notification of earned discharge is filed. 35
(2) The prosecuting or circuit attorney may request a 36
hearing within thirty days of the filing of the notification 37
of earned discharge from probation. If the state opposes 38
the discharge of the defendant, the prosecuting or circuit 39
attorney shall argue the earned discharge is not appropriate 40
and the defendant should continue to serve the probation 41
term. 42
(3) If a hearing is requested, the court shall hold 43
the hearing and issue its order no later than sixty days 44
after the filing of the notification of earned discharge 45
from probation. If, after a hearing, the court finds by a 46
preponderance of the evidence that the earned discharge is 47
not appropriate, the court shall order the probation term to 48
continue, may modify the conditions of probation as 49
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appropriate, and may order the continued supervision of the 50
defendant by either the division of probation and parole or 51
the court. If, after a hearing, the court finds that the 52
earned discharge is appropriate, the court shall order the 53
defendant discharged from probation. 54
(4) If the prosecuting or circuit attorney does not 55
request a hearing, the court shall order the defendant 56
discharged from probation within sixty days of the filing of 57
the notification of earned discharge from probation but no 58
earlier than thirty days from the filing of notification of 59
earned discharge from probation. 60
3. If the defendant violates a condition of probation 61
at any time prior to the expiration or termination of the 62
probation term, the court may continue him or her on the 63
existing conditions, with or without modifying or enlarging 64
the conditions or extending the term. 65
4. (1) Unless the defendant consents to the 66
revocation of probation, if a continuation, modification, 67
enlargement or extension is not appropriate under this 68
section, the court shall order placement of the offender in 69
a department of corrections' one hundred twenty-day program 70
so long as: 71
(a) The underlying offense for the probation is a 72
class D or E felony or an offense listed in chapter 579 or 73
an offense previously listed in chapter 195; except that, 74
the court may, upon its own motion or a motion of the 75
prosecuting or circuit attorney, make a finding that an 76
offender is not eligible if the underlying offense is 77
involuntary manslaughter in the second degree, stalking in 78
the first degree, assault in the second degree, sexual 79
assault, rape in the second degree, domestic assault in the 80
second degree, assault in the third degree when the victim 81
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is a special victim, statutory rape in the second degree, 82
statutory sodomy in the second degree, deviate sexual 83
assault, sodomy in the second degree, sexual misconduct 84
involving a child, incest, endangering the welfare of a 85
child in the first degree under subdivision (1) or (2) of 86
subsection 1 of section 568.045, abuse of a child, invasion 87
of privacy, any case in which the defendant is found guilty 88
of a felony offense under chapter 571, or an offense of 89
aggravated stalking or assault of a law enforcement officer 90
in the second degree as such offenses existed prior to 91
January 1, 2017; 92
(b) The probation violation is not the result of the 93
defendant being an absconder or being found guilty of, 94
pleading guilty to, or being arrested on suspicion of any 95
felony, misdemeanor, or infraction. For purposes of this 96
subsection, "absconder" shall mean an offender under 97
supervision who has left such offender's place of residency 98
without the permission of the offender's supervising officer 99
for the purpose of avoiding supervision; 100
(c) The defendant has not violated any conditions of 101
probation involving the possession or use of weapons, or a 102
stay-away condition prohibiting the defendant from 103
contacting a certain individual; and 104
(d) The defendant has not already been placed in one 105
of the programs by the court for the same underlying offense 106
or during the same probation term. 107
(2) Upon receiving the order, the department of 108
corrections shall conduct an assessment of the offender and 109
place such offender in either the one hundred twenty-day 110
structured cognitive behavioral intervention program or the 111
one hundred twenty-day institutional treatment program. The 112
placement of the offender in the structured cognitive 113
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behavioral intervention program or institutional treatment 114
program shall be at the sole discretion of the department 115
based on the assessment of the offender. The program shall 116
begin upon receipt of the offender by the department. The 117
time between the court's order and receipt of the offender 118
by the department shall not apply toward the program. 119
(3) Upon successful completion of a program under this 120
subsection, as determined by the department, the division of 121
probation and parole shall advise the sentencing court of 122
the defendant's probationary release date thirty days prior 123
to release. Once the defendant has successfully completed a 124
program under this subsection, the court shall release the 125
defendant to continue to serve the term of probation, which 126
shall not be modified, enlarged, or extended based on the 127
same incident of violation. 128
(4) If the department determines the defendant has not 129
successfully completed a one hundred twenty-day program 130
under this section, the division of probation and parole 131
shall advise the prosecuting attorney and the sentencing 132
court of the defendant's unsuccessful program exit and the 133
defendant shall be removed from the program. The defendant 134
shall be released from the department within fifteen working 135
days after the court is notified of the unsuccessful program 136
exit, unless the court has issued a warrant in response to 137
the unsuccessful program exit to facilitate the return of 138
the defendant to the county of jurisdiction for further 139
court proceedings. If a defendant is discharged as 140
unsuccessful from a one hundred twenty-day program, the 141
sentencing court may modify, enlarge, or revoke the 142
defendant's probation based on the same incident of the 143
violation. 144
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(5) Time served in the program shall be credited as 145
time served on any sentence imposed for the underlying 146
offense. 147
5. If the defendant consents to the revocation of 148
probation or if the defendant is not eligible under 149
subsection 4 of this section for placement in a program and 150
a continuation, modification, enlargement, or extension of 151
the term under this section is not appropriate, the court 152
may revoke probation and order that any sentence previously 153
imposed be executed. If imposition of sentence was 154
suspended, the court may revoke probation and impose any 155
sentence available under section 557.011. The court may 156
mitigate any sentence of imprisonment by reducing the prison 157
or jail term by all or part of the time the defendant was on 158
probation. The court may, upon revocation of probation, 159
place an offender on a second term of probation. Such 160
probation shall be for a term of probation as provided by 161
section 559.016, notwithstanding any amount of time served 162
by the offender on the first term of probation. 163
6. Probation shall not be revoked without giving the 164
probationer notice and an opportunity to be heard on the 165
issues of whether such probationer violated a condition of 166
probation and, if a condition was violated, whether 167
revocation is warranted under all the circumstances. Not 168
less than five business days prior to the date set for a 169
hearing on the violation, except for a good cause shown, the 170
judge shall inform the probationer that he or she may have 171
the right to request the appointment of counsel if the 172
probationer is unable to retain counsel. If the probationer 173
requests counsel, the judge shall determine whether counsel 174
is necessary to protect the probationer's due process 175
rights. If the judge determines that counsel is not 176
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necessary, the judge shall state the grounds for the 177
decision in the record. 178
7. The prosecuting or circuit attorney may file a 179
motion to revoke probation or at any time during the term of 180
probation, the court may issue a notice to the probationer 181
to appear to answer a charge of a violation, and the court 182
may issue a warrant of arrest for the violation. Such 183
notice shall be personally served upon the probationer. The 184
warrant shall authorize the return of the probationer to the 185
custody of the court or to any suitable detention facility 186
designated by the court. Upon the filing of the 187
prosecutor's or circuit attorney's motion or on the court's 188
own motion, the court may immediately enter an order 189
suspending the period of probation and may order a warrant 190
for the defendant's arrest. The probation shall remain 191
suspended until the court rules on the prosecutor's or 192
circuit attorney's motion, or until the court otherwise 193
orders the probation reinstated. Notwithstanding any other 194
provision of the law to the contrary, the probation term 195
shall be tolled during the time period when the probation is 196
suspended under this section. The court may grant the 197
probationer credit on the probation term for any of the 198
tolled period when reinstating the probation term. 199
8. The power of the court to revoke probation shall 200
extend for the duration of the term of probation designated 201
by the court and for any further period which is reasonably 202
necessary for the adjudication of matters arising before its 203
expiration, provided that some affirmative manifestation of 204
an intent to conduct a revocation hearing occurs prior to 205
the expiration of the period and that every reasonable 206
effort is made to notify the probationer and to conduct the 207
hearing prior to the expiration of the period. If the delay 208
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of the hearing is attributable to the probationer's actions 209
or the probationer otherwise consents or acquiesces to the 210
delay, the court shall have been found to have made every 211
reasonable effort to conduct the hearing within the 212
probation term. 213
9. A defendant who was sentenced prior to January 1, 214
2017 to an offense that was eligible at the time of 215
sentencing under paragraph (a) of subdivision (1) of 216
subsection 4 of this section for the court ordered detention 217
sanction shall continue to remain eligible for the sanction 218
so long as the defendant meets all the other requirements 219
provided under subsection 4 of this section. 220
[217.703. 1. The division of probation 1
and parole shall award earned compliance credits 2
to any offender who is: 3
(1) Not subject to lifetime supervision 4
under sections 217.735 and 559.106 or otherwise 5
found to be ineligible to earn credits by a 6
court pursuant to subsection 2 of this section; 7
(2) On probation, parole, or conditional 8
release for an offense listed in chapter 579, or 9
an offense previously listed in chapter 195, or 10
for a class D or E felony, excluding sections 11
565.225, 565.252, 566.031, 566.061, 566.083, 12
566.093, 568.020, 568.060, offenses defined as 13
sexual assault under section 589.015, deviate 14
sexual assault, assault in the second degree 15
under subdivision (2) of subsection 1 of section 16
565.052, endangering the welfare of a child in 17
the first degree under subdivision (2) of 18
subsection 1 of section 568.045, and any offense 19
of aggravated stalking or assault in the second 20
degree under subdivision (2) of subsection 1 of 21
section 565.060 as such offenses existed prior 22
to January 1, 2017; 23
(3) Supervised by the division of 24
probation and parole; and 25
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(4) In compliance with the conditions of 26
supervision imposed by the sentencing court or 27
board. 28
2. If an offender was placed on probation, 29
parole, or conditional release for an offense of: 30
(1) Involuntary manslaughter in the second 31
degree; 32
(2) Assault in the second degree except 33
under subdivision (2) of subsection 1 of section 34
565.052 or section 565.060 as it existed prior 35
to January 1, 2017; 36
(3) Domestic assault in the second degree; 37
(4) Assault in the third degree when the 38
victim is a special victim or assault of a law 39
enforcement officer in the second degree as it 40
existed prior to January 1, 2017; 41
(5) Statutory rape in the second degree; 42
(6) Statutory sodomy in the second degree; 43
(7) Endangering the welfare of a child in 44
the first degree under subdivision (1) of 45
subsection 1 of section 568.045; or 46
(8) Any case in which the defendant is 47
found guilty of a felony offense under chapter 48
571; 49
the sentencing court may, upon its own motion or 50
a motion of the prosecuting or circuit attorney, 51
make a finding that the offender is ineligible 52
to earn compliance credits because the nature 53
and circumstances of the offense or the history 54
and character of the offender indicate that a 55
longer term of probation, parole, or conditional 56
release is necessary for the protection of the 57
public or the guidance of the offender. The 58
motion may be made any time prior to the first 59
month in which the person may earn compliance 60
credits under this section or at a hearing under 61
subsection 5 of this section. The offender's 62
ability to earn credits shall be suspended until 63
the court or board makes its finding. If the 64
court or board finds that the offender is 65
eligible for earned compliance credits, the 66
credits shall begin to accrue on the first day 67
of the next calendar month following the 68
issuance of the decision. 69
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3. Earned compliance credits shall reduce 70
the term of probation, parole, or conditional 71
release by thirty days for each full calendar 72
month of compliance with the terms of 73
supervision. Credits shall begin to accrue for 74
eligible offenders after the first full calendar 75
month of supervision or on October 1, 2012, if 76
the offender began a term of probation, parole, 77
or conditional release before September 1, 2012. 78
4. For the purposes of this section, the 79
term "compliance" shall mean the absence of an 80
initial violation report or notice of citation 81
submitted by a probation or parole officer 82
during a calendar month, or a motion to revoke 83
or motion to suspend filed by a prosecuting or 84
circuit attorney, against the offender. 85
5. Credits shall not accrue during any 86
calendar month in which a violation report, 87
which may include a report of absconder status, 88
has been submitted, the offender is in custody, 89
or a motion to revoke or motion to suspend has 90
been filed, and shall be suspended pending the 91
outcome of a hearing, if a hearing is held. If 92
no hearing is held, or if a hearing is held and 93
the offender is continued under supervision, or 94
the court or board finds that the violation did 95
not occur, then the offender shall be deemed to 96
be in compliance and shall begin earning credits 97
on the first day of the next calendar month 98
following the month in which the report was 99
submitted or the motion was filed. If a hearing 100
is held, all earned credits shall be rescinded 101
if: 102
(1) The court or board revokes the 103
probation or parole or the court places the 104
offender in a department program under 105
subsection 4 of section 559.036; or 106
(2) The offender is found by the court or 107
board to be ineligible to earn compliance 108
credits because the nature and circumstances of 109
the violation indicate that a longer term of 110
probation, parole, or conditional release is 111
necessary for the protection of the public or 112
the guidance of the offender. 113
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Earned credits, if not rescinded, shall continue 114
to be suspended for a period of time during 115
which the court or board has suspended the term 116
of probation, parole, or release, and shall 117
begin to accrue on the first day of the next 118
calendar month following the lifting of the 119
suspension. 120
6. Offenders who are deemed by the 121
division to be absconders shall not earn 122
credits. For purposes of this subsection, 123
"absconder" shall mean an offender under 124
supervision whose whereabouts are unknown and 125
who has left such offender's place of residency 126
without the permission of the offender's 127
supervising officer and without notifying of 128
their whereabouts for the purpose of avoiding 129
supervision. An offender shall no longer be 130
deemed an absconder when such offender is 131
available for active supervision. 132
7. Notwithstanding subsection 2 of section 133
217.730 to the contrary, once the combination of 134
time served in custody, if applicable, time 135
served on probation, parole, or conditional 136
release, and earned compliance credits satisfy 137
the total term of probation, parole, or 138
conditional release, the board or sentencing 139
court shall order final discharge of the 140
offender, so long as the offender has completed 141
restitution and at least two years of his or her 142
probation, parole, or conditional release, which 143
shall include any time served in custody under 144
section 217.718 and sections 559.036 and 559.115. 145
8. The award or rescission of any credits 146
earned under this section shall not be subject 147
to appeal or any motion for postconviction 148
relief. 149
9. At least twice a year, the division 150
shall calculate the number of months the 151
offender has remaining on his or her term of 152
probation, parole, or conditional release, 153
taking into consideration any earned compliance 154
credits, and notify the offender of the length 155
of the remaining term. 156
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10. No less than sixty days before the 157
date of final discharge, the division shall 158
notify the sentencing court, the board, and, for 159
probation cases, the circuit or prosecuting 160
attorney of the impending discharge. If the 161
sentencing court, the board, or the circuit or 162
prosecuting attorney upon receiving such notice 163
does not take any action under subsection 5 of 164
this section, the offender shall be discharged 165
under subsection 7 of this section. 166
11. Any offender who was sentenced prior 167
to January 1, 2017, to an offense that was 168
eligible for earned compliance credits under 169
subsection 1 or 2 of this section at the time of 170
sentencing shall continue to remain eligible for 171
earned compliance credits so long as the 172
offender meets all the other requirements 173
provided under this section. 174
12. The application of earned compliance 175
credits shall be suspended upon entry into a 176
treatment court, as described in sections 177
478.001 to 478.009, and shall remain suspended 178
until the offender is discharged from such 179
treatment court. Upon successful completion of 180
treatment court, all earned compliance credits 181
accumulated during the suspension period shall 182
be retroactively applied, so long as the other 183
terms and conditions of probation have been 184
successfully completed.] 185
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