State ex rel. Cochran v. Andrews , 799 S.W.2d 919 ( 1990 )

BERREY, Judge.

This is an action for a writ of prohibition prohibiting respondent, the Honorable John C. Andrews, from proceeding in a probation violation hearing. Linda Cochran’s request for a change of judge having been denied, she has instituted this cause.

On January 1, 1989, the Honorable John C. Andrews succeeded the Honorable Montgomery Wilson as Circuit Judge of the Fourth Judicial Circuit. Relator, a probationer, was commanded to appear before Judge Andrews for a “probation review” on September 11, 1989. Relator’s brief reflects that September 11, 1989, was designated by Judge Andrews as the date that he would review the majority of probationers placed on probation by the court. Linda Cochran appeared as directed and the event was recorded, in its entirety, as follows:

JUDGE ANDREWS: You’re Linda Cochran?

THE DEFENDANT: Yep.

JUDGE ANDREWS: You were placed on probation February of ’87, is that correct?

THE DEFENDANT: Yes, sir.

MR. BAIRD: For five years, Your Hon- or.

JUDGE ANDREWS: How do you feel you’re getting along?

THE DEFENDANT: Just fine.

JUDGE ANDREWS: Any problems?

THE DEFENDANT: Nope. Raising kids.

MR. BRADLEY: She’s doing fine. She was placed on probation, well, she was on probation for another charge and picked this one up. After she served some time in jail she transferred to the State of Iowa. I think everything is paid in full.

THE DEFENDANT: No, we’re disputing but I have receipts and I was going to cover that today.

JUDGE ANDREWS: Any other questions?

THE DEFENDANT: No.

JUDGE ANDREWS: You’re doing a good job.

THE DEFENDANT: Thanks.

JUDGE ANDREWS: Defendant appears in person and continued on probation.

On October 25, 1989, a capias warrant was issued and delivered to the Sheriff of Nodaway County, who filed it on October 27, 1989. On November 1, 1989, the prosecuting attorney filed a motion to revoke probation. Relator filed a request for a change of judge on November 9, 1989. This request was heard by Judge Andrews on November 13, 1989, and denied.

In the proceedings before us, relator argues that the trial court erred in denying her request for a change of judge. Whether this contention is correct depends on what time period is used to calculate the timeliness of relator’s request. Relator would have us look at the period running from either the time of her arrest, October 25, 1989, or the time the motion to revoke was filed, November 1, 1989, to the time of her filing a motion for a change of judge on November 9, 1989. Respondent would have this period commence on September 11, 1989.

Section 217.765, RSMo 1986, provides for the power of the circuit courts to place persons on probation and parole. It states:

217.765. Judicial parole and probation — powers—exceptions—

1. The circuit courts of this state shall have power, herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction, except as otherwise provided in sections 195.200, 558.018, RSMo, and section 217.775.

2. The circuit court shall have the power to revoke the probation or parole previously granted and commit the person to the department of corrections and human resources. The circuit court shall determine any conditions of probation or parole for the defendant that it deems necessary to insure the successful completion of the probation or parole term, including the extension of any term of supervision for any person while on probation or parole. The circuit court may require that the defendant pay restitution for his crime. The probation or parole may be revoked for failure to pay restitution or for failure to conform his behavior to the conditions imposed by the circuit court. The circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence.

The power of a judge to revoke a probation is not unlimited. Missouri law provides that, “Probation shall not be revoked without giving the probationer notice and an opportunity to be heard on the issues of whether he violated a condition of probation and, if he did, whether revocation is warranted under all the circumstances.” § 59.036.4, RSMo 1986. Provision is made for the issuance of a notice to the probationer, “to appear to answer a charge of a violation.” § 559.036.5, RSMo 1986 (emphasis added). Finally, it must be clear that the proceeding is indeed one of revocation:

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.

§ 559.036.6, RSMo 1986.

The required appearance of the probationer before the court on September 11, 1989, to assist the court’s review of her probationary status was an exercise of the court’s inherent authority necessary to properly “determine any conditions of probation ... that it deems necessary to insure the successful completion of the probation ... including the extension of any term of supervision_” § 217.765.2, RSMo 1986. Although the court then had authority to review the conditions of probation, the probationer’s compliance with the conditions and her environment, to determine whether the conditions of probation should be amended, the court lacked authority to revoke probation. Before a court can revoke probation, a motion must be filed to invoke the court’s jurisdiction to revoke probationer’s probationary status. Moore v. Stamps, 507 S.W.2d 939, 950[13] (Mo.App.1974).

Routinely, in compliance with directives of a probation officer or a court, probationers meet with probation officers who exercise supervisory authority. Probation officers reviewing compliance with the conditions of probation exercise a ministerial function. When the court requires the presence of a probationer to review the probationer’s probation history and the prognosis for successful completion of the probationary status, the probationer’s probationary status is not immediately in jeopardy. The probationer is not usually accompanied by legal counsel either when meeting with a probation officer or the court under conditions such as exist in this case. Due process does not require that legal counsel be provided the probationer, nor is the probationer necessarily entitled to have legal counsel present at such a time. The court is exercising a ministerial function. Only when the state, through the prosecuting attorney, attempts to revoke the probationary status by filing a motion with the court is the probationer’s status as a probationer jeopardized. Only when the probationer’s probation status is placed in jeopardy does the court have jurisdiction to revoke the probationer’s probation. The court exercises its judicial function by conducting a hearing to determine the merits of the state’s motion. When the probationer’s status is jeopardized by the state’s motion to revoke probation, due process entitles the probationer to representation by legal counsel.

Linda Cochran’s compelled presence before the court on September 11, 1989, to facilitate the court’s review of her status as a probationer was in the nature of a ministerial event, rather than a judicial event. The court exercised a ministerial function, and although the function was an important one, it was not “a solemn judicial event of consequence.” The court was not considering revoking Linda Cochran’s probation. It did not then have jurisdiction to revoke her probation. The court was not serving as the trier of law or fact in a case or controversy before it. The court could have requested directly or through the probation officer that the prosecutor file a motion to revoke the probationer’s probationary status. Common practice! Without initiation of a controversy or case involving the issue of whether Linda Cochran breached the conditions of probation, no justiciable issue existed. Linda Cochran was not represented at the September 11 appearance and due process did not require that counsel be present to represent her interests.

Linda Cochran could not exercise the provisions of Rule 51.05 or Rule 32.07 and seek a change of judge after Judge Andrews assumed authority over her probationary status because neither rule applied to her situation. The rules contemplate a case or controversy at issue before a judicial officer who will exercise the court’s judicial function. Neither rule applies to a ministerial function such as we have in this matter.

Rule 51.05(a) provides that a change of judge “shall be ordered in any civil action upon the filing of a written application” without alleging or proving any cause for the change of judge requested. Subpara-graph (b) requires that the application ‘must be filed within thirty days after the answer is due to be filed if the trial judge is designated at the time the answer is due,” and “[i]f no answer is required to be filed, the application must be filed no later than thirty days after the filing of the civil action.” The rule contemplates the initiation of a civil action to trigger it. No civil action had been initiated.

Rule 32.07, a criminal rule, applied during the criminal proceeding which resulted in Linda Cochran’s probationary status. Rule 32.07 provides that a change of judge shall occur “upon the filing of a written application therefor by any party” without alleging or proving any reason for the change, just as the civil rule provides. Like the civil rule, the application must be filed not later than thirty days after the trial judge is designated and the parties are notified. If the trial judge is not designated before thirty days prior to trial, the application must be filed prior to commencement of any proceedings on the record. The rule contemplates a trial or other judicial proceeding. Additionally, probation revocation is not a criminal proceeding. Moore v. Stamps, 507 S.W.2d 939, 949 (Mo.1974). Thus, Rule 32.07 appears not to be applicable to the situation presented.

Linda Cochran was not entitled to a change of judge under either Rule 51.04 or 32.07 when she appeared on September 11, 1989. Rule 51.05 applied when the state filed its motion to revoke. The relator never had a change of judge in this cause and she filed her application within thirty days of the time she received notice that a motion to revoke her probation had been filed by the state. The right of a defendant to disqualify a judge is a keystone to our judicial system and our courts adhere to a liberal rule construing the right to disqualify. State ex rel. Horton v. House, 646 S.W.2d 91, 93 (Mo. banc 1983). If she is denied the right to disqualify now she will never have had an opportunity to disqualify a judge who will pass on whether or not she should be imprisoned. Id. at 93. The relator is without jurisdiction to proceed further except to effect the change of judge sought by petitioner’s motion.

The Preliminary Rule in Prohibition is made absolute.