559.036. Duration of probation — revocation.
1. A term of probation commences on the day it is imposed. Multiple terms of Missouri probation, whether imposed at the same time or at different times, shall run concurrently. Terms of probation shall also run concurrently with any federal or other state jail, prison, probation or parole term for another offense to which the defendant is or becomes subject during the period.
2. The court may terminate a period of probation and discharge the defendant at any time before completion of the specific term fixed under section 559.016 if warranted by the conduct of the defendant and the ends of justice. The court may extend the term of the probation, but no more than one extension of any probation may be ordered except that the court may extend the term of probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension shall not exceed the maximum term established in section 559.016. Total time on any probation term shall not include time when the probation term is suspended under this section. Procedures for termination, discharge and extension may be established by rule of court.
3. If the defendant violates a condition of probation at any time prior to the expiration or termination of the probation term, the court may continue him or her on the existing conditions, with or without modifying or enlarging the conditions or extending the term.
4. (1) Unless the defendant consents to the revocation of probation, if a continuation, modification, enlargement or extension is not appropriate under this section, the court shall order placement of the offender in a department of corrections’ one hundred twenty-day program so long as:
- (a) The underlying offense for the probation is a class D or E felony or an offense listed in chapter 579 or an offense previously listed in chapter 195; except that, the court may, upon its own motion or a motion of the prosecuting or circuit attorney, make a finding that an offender is not eligible if the underlying offense is involuntary manslaughter in the second degree, stalking in the first degree, assault in the second degree, sexual assault, rape in the second degree, domestic assault in the second degree, assault in the third degree when the victim is a special victim, statutory rape in the second degree, statutory sodomy in the second degree, deviate sexual assault, sodomy in the second degree, sexual misconduct involving a child, incest, endangering the welfare of a child in the first degree under subdivision (1) or (2) of subsection 1 of section 568.045, abuse of a child, invasion of privacy, any case in which the defendant is found guilty of a felony offense under chapter 571, or an offense of aggravated stalking or assault of a law enforcement officer in the second degree as such offenses existed prior to January 1, 2017;
- (b) The probation violation is not the result of the defendant being an absconder or being found guilty of, pleading guilty to, or being arrested on suspicion of any felony, misdemeanor, or infraction. For purposes of this subsection, “absconder” shall mean an offender under supervision who has left such offender’s place of residency without the permission of the offender’s supervising officer for the purpose of avoiding supervision;
- (c) The defendant has not violated any conditions of probation involving the possession or use of weapons, or a stay-away condition prohibiting the defendant from contacting a certain individual; and
- (d) The defendant has not already been placed in one of the programs by the court for the same underlying offense or during the same probation term.
(2) Upon receiving the order, the department of corrections shall conduct an assessment of the offender and place such offender in either the one hundred twenty-day structured cognitive behavioral intervention program or the one hundred twenty-day institutional treatment program. The placement of the offender in the structured cognitive behavioral intervention program or institutional treatment program shall be at the sole discretion of the department based on the assessment of the offender. The program shall begin upon receipt of the offender by the department. The time between the court’s order and receipt of the offender by the department shall not apply toward the program.
(3) Upon successful completion of a program under this subsection, as determined by the department, the division of probation and parole shall advise the sentencing court of the defendant’s probationary release date thirty days prior to release. Once the defendant has successfully completed a program under this subsection, the court shall release the defendant to continue to serve the term of probation, which shall not be modified, enlarged, or extended based on the same incident of violation.
(4) If the department determines the defendant has not successfully completed a one hundred twenty-day program under this section, the division of probation and parole shall advise the prosecuting attorney and the sentencing court of the defendant’s unsuccessful program exit and the defendant shall be removed from the program. The defendant shall be released from the department within fifteen working days after the court is notified of the unsuccessful program exit, unless the court has issued a warrant in response to the unsuccessful program exit to facilitate the return of the defendant to the county of jurisdiction for further court proceedings. If a defendant is discharged as unsuccessful from a one hundred twenty-day program, the sentencing court may modify, enlarge, or revoke the defendant’s probation based on the same incident of the violation.
(5) Time served in the program shall be credited as time served on any sentence imposed for the underlying offense.
5. If the defendant consents to the revocation of probation or if the defendant is not eligible under subsection 4 of this section for placement in a program and a continuation, modification, enlargement, or extension of the term under this section is not appropriate, the court may revoke probation and order that any sentence previously imposed be executed. If imposition of sentence was suspended, the court may revoke probation and impose any sentence available under section 557.011. The court may mitigate any sentence of imprisonment by reducing the prison or jail term by all or part of the time the defendant was on probation. The court may, upon revocation of probation, place an offender on a second term of probation. Such probation shall be for a term of probation as provided by section 559.016, notwithstanding any amount of time served by the offender on the first term of probation.
6. Probation shall not be revoked without giving the probationer notice and an opportunity to be heard on the issues of whether such probationer violated a condition of probation and, if a condition was violated, whether revocation is warranted under all the circumstances. Not less than five business days prior to the date set for a hearing on the violation, except for a good cause shown, the judge shall inform the probationer that he or she may have the right to request the appointment of counsel if the probationer is unable to retain counsel. If the probationer requests counsel, the judge shall determine whether counsel is necessary to protect the probationer’s due process rights. If the judge determines that counsel is not necessary, the judge shall state the grounds for the decision in the record.
7. The prosecuting or circuit attorney may file a motion to revoke probation or at any time during the term of probation, the court may issue a notice to the probationer to appear to answer a charge of a violation, and the court may issue a warrant of arrest for the violation. Such notice shall be personally served upon the probationer. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court. Upon the filing of the prosecutor’s or circuit attorney’s motion or on the court’s own motion, the court may immediately enter an order suspending the period of probation and may order a warrant for the defendant’s arrest. The probation shall remain suspended until the court rules on the prosecutor’s or circuit attorney’s motion, or until the court otherwise orders the probation reinstated. Notwithstanding any other provision of the law to the contrary, the probation term shall be tolled during the time period when the probation is suspended under this section. The court may grant the probationer credit on the probation term for any of the tolled period when reinstating the probation term.
8. The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period. If the delay of the hearing is attributable to the probationer’s actions or the probationer otherwise consents or acquiesces to the delay, the court shall have been found to have made every reasonable effort to conduct the hearing within the probation term.
9. A defendant who was sentenced prior to January 1, 2017 to an offense that was eligible at the time of sentencing under paragraph (a) of subdivision (1) of subsection 4 of this section for the court ordered detention sanction shall continue to remain eligible for the sanction so long as the defendant meets all the other requirements provided under subsection 4 of this section.
