Opinion
No. 78322
Filed: November 21, 2000
WRIT OF CERTIORARI.
John Munson Morris III, Troy Allen, P.O. Box 899, Jefferson City, MO 65102-0899, for relator.
Douglas R. Hoff, 1221 Locust Street, Suite 350, St. Louis, MO 63103, Hon. James H. Kelly, Shirley Williford, 11 N. Washington, Farmington, MO 63640, for respondents.
Mary K. Hoff, C.J., and Gary M. Gaertner, J., concur
This is an original proceeding in certiorari to review the Circuit Court of St. Francois County's judgment granting a Writ of Habeas Corpus to Paul Haldeman, releasing him from prison. We previously denied the state's request to stay the execution of the Writ of Habeas Corpus. We now quash the Writ of Certiorari as Haldeman was entitled to credit for time he served while incarcerated for a prior offense, and while awaiting trial on a subsequent offense, in that "the time in custody was related to the offense" on which he was subsequently sentenced.
When the Attorney General seeks a writ of certiorari, the writ issues as a matter of course and of right. State ex rel. Taylor v. Blair, 210 S.W.2d 1, 3-4 (Mo.banc 1948). Certiorari is proper as there is no appeal from a judgment granting the writ of habeas corpus. Jones v. State, 471 S.W.2d 166, 168 (Mo.banc 1971).
Haldeman was convicted in April 1994 of two counts of sexual assault in St. Louis County Circuit Court. Count I charged him with conduct occurring in July 1987, and Count II charged him with similar conduct involving the same victim occurring between October 1 and December 31, 1988. Haldeman was sentenced to seven years of imprisonment on Count II, but granted a new trial on Count I. The trial court set a $150,000 bond pending appeal on Count II and also pending a new trial on Count I. Upon this court affirming the conviction and sentence as to Count II, the bond was revoked. See State v. Haldeman, 910 S.W.2d 319 (Mo.App. 1995). Haldeman was remanded to the custody of the department of corrections on October 6, 1995 to begin his sentence.
The new trial on Count I, held on May 13, 1996, resulted in Haldeman's conviction and sentence to a term of confinement of seven years "to be concurrent with the sentence Defendant (Haldeman) is presently serving."
Haldeman was given a conditional release date on both sentences of April 28, 2000. He was later notified, however, that the date was amended to December 4, 2000, as he was not allowed prison time credit on the May 13, 1996 conviction, for time he served from October 6, 1995 to May 13, 1996.
After exhausting his administrative remedies with the department of corrections, Haldeman filed a Petition for a Writ of Habeas Corpus in the trial court, seeking credit for time he spent incarcerated while awaiting the disposition of Count I.
On August 16, 2000, the trial court, applying section 558.031 RSMo (Supp. 1995) and relying on the recent decision in Goings v. Missouri Dep't of Corrections, 6 S.W.3d 906 (Mo.banc 1999), granted Haldeman's Petition for Writ of Habeas Corpus and ordered him to be immediately released from confinement. The trial court found that the time he spent in prison after his bond was revoked and pending sentencing upon the May 13, 1996 conviction, was time awaiting trial and was related to the offense. The court found that he was entitled to that prison time credit.
The state challenges the granting of the Writ of Habeas Corpus on two grounds: (1) the trial court applied the 1995 version of section 558.031, even though Haldeman committed Count I in 1987, which, thus, required application of the 1986 version of section 558.031; and (2) even assuming that the correct version of section 558.031 was applied, the trial court misapplied the term "related to" to the facts.
Although the state did not argue in the trial court which version of section 558.031 applied, it now asserts that the 1986 version is controlling. While parties are estopped from raising, in this court, issues which were not raised at the trial court level, we will review this issue ex gratia. Roy v. Missouri Dep't of Corrections, 23 S.W.3d 738, 746 (Mo.App. 2000). The first question before us is which version of section 558.031 applies to the facts in this case.
The 1986 version of section 558.031 provides, with a limited exception, that a prisoner's pre-conviction service of time only counts toward the charges for which he was incarcerated. It states, in relevant part, as follows:
1. A person convicted of a crime in this state shall receive as credit toward service of a sentence of imprisonment all time spent by him in prison or jail both because awaiting trial for such crime and pending transfer after conviction to the department of corrections and human resources or the place of confinement to which he was sentenced. Time required by law to be credited upon some other sentence shall be applied to that sentence alone, except that
(1) Time spent in jail or prison awaiting trial for an offense because of a detainer for such offense shall be credited toward service of a sentence of imprisonment for that offense even though the person was confined awaiting trial for some unrelated bailable offense; and
(2) Credit for jail or prison time shall be applied to each sentence if they are concurrent.
In 1995, section 558.031 was substantially rewritten, and provides as follows:
A sentence of imprisonment shall commence when a person convicted of a crime in this state is received into the custody of the department of corrections or other place of confinement where the offender is sentenced. Such person shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense.
. . .
The salient purpose of the enactment of section 558.031 is to ensure that an indigent accused who awaits trial shall not serve a longer term for the same sentence than an accused able to meet bail to avoid confinement before trial and sentence. Goings, 6 S.W.3d at 908.
In determining which version of the statute applies, we are guided by section 1.160 RSMo 1994, which states that the statute in effect at the time of the offense controls, except that if the punishment for any offense is reduced by any change in the law creating the offense before original sentencing, the punishment shall be assessed according to the new law. State v. Edwards, 983 S.W.2d 520, 521 (Mo.banc 1999).
The Missouri Supreme Court, in State v. Whiteaker, 499 S.W.2d 412, 420 (Mo. 1973), has found that a statute providing for pre-trial jail time credit has an effect on the punishment of the offense "by reducing the amount of time to be served after conviction by the amount of time spent in jail awaiting trial on the charge" and that a defendant is entitled under section 1.160 to the benefit of the later statute.
Although Whiteaker was applying a former version of section 1.160, the holding in Whiteaker is still sound as it is applied to the facts in this case.
While the 1986 version of section 558.031.1 focused on whether a person was in jail or prison "awaiting trial for an offense," the 1995 amendment considered whether "the time in custody was related to that offense." If Haldeman's "time in custody was related to that offense," then the 1995 amendment would grant Haldeman more incarceration time credit, thereby reducing his punishment. Therefore, if Haldeman's "time in custody was related to that offense," then he should have the benefit of the application of the 1995 amendment, as it was in effect at the time of his May 13, 1996 sentencing.
We must next determine whether the time Haldeman spent in custody prior to the May 1996 sentencing was related to the offense for which he was awaiting trial.
The habeas court found that "time Petitioner spent in prison after his bond was revoked pending sentencing upon the May 13, 1996 conviction, was time awaiting trial and was related to such offense . . . , and thus that Petitioner is entitled to jail time credit therefore" (emphasis added).
The 1995 amended version of section 558.031 was recently examined inGoings. In Goings, the defendant was on parole from prison when he was arrested in another county for a new offense. 6 S.W.3d at 906-07. He was returned to the custody of the department of corrections for violating his parole. Id. at 907. Sixteen months later, he was convicted of the new offense and sentenced to a term to be served concurrently with his earlier sentence. Id. The department of corrections, pursuant to section 558.031, refused to give the defendant credit for time served against the new sentence. Id. The Missouri Supreme Court, in construing the phrase "related to" the offense, found that the defendant was entitled to credit for time spent in the custody of the department of corrections following parole revocation but prior to the imposition of sentence on the new charge. Id. at 908.
In construing section 558.031, the court followed the principle that criminal statutes must be "construed strictly against the [s]tate and liberally in favor of the defendant." Id. ( citing State v. Jones, 899 S.W.2d 126, 127 (Mo.App. 1995); State v. Liffick, 815 S.W.2d 132, 134 (Mo.App. 1991)).
The court also found the legislature's use of the very broad term "related to," instead of such words as "caused by" or "the result of," required the result that defendant's custody can be "related to" both offenses, and thus incarceration credit applies. Id. at 908.
Haldeman posted one bond of $150,000 pending appeal of the first conviction and pending the new trial which was revoked upon the first conviction being final. Haldeman's incarceration after his first conviction on one count of sexual assault was seven months prior to his new trial and sentencing on the other count of sexual assault with the same victim. Both charges were originally tried together and only became separated when Haldeman was granted a new trial on one of the counts. The second sentence was for the same length of time and was to run concurrent with the first sentence. His incarceration was related to the offense he was tried for in May 1996, as he was not permitted to post bond pending that trial due to his April 1994 conviction becoming final. As in Goings, Haldeman's incarceration from October 1995 to May 1996 was related to both offenses and, thus, the statutory credit should apply.
The state argues that since Haldeman committed the offense in July 1987, the 1986 version of section 558.031 applies. The state cites to a footnote in Roy to support its position. Roy, 23 S.W.3d at 741 n. 1.
In Roy, the defendant had been convicted and was serving time in one county for crimes unrelated to the offenses he was awaiting trial on in an adjoining county. Id. at 742. Nine months after his first conviction, he was tried and sentenced on the unrelated offenses. Id. Defendant sought credit on his second sentence for the nine months he spent in the department of corrections as a result of the prior conviction. Id.
Since the time in custody in Roy was unrelated to the offense pending trial, the 1995 version of section 558.031 would not be applicable and thus, the defendant would not benefit with a reduction in his punishment by the change in the law. Therefore, the court of appeals applied the pre-1995 version of section 558.031, as section 1.160 requires that a defendant be punished according to the laws in effect when the crime occurred. Id. at 741 n. 1. The facts in the case herein differ in that the "time in custody was related to that offense pending trial."
The state incorrectly cites State ex rel. Lightfoot v. Schriro, 927 S.W.2d 467, 471 n. 5 (Mo.App. 1996) and State ex rel. Blackwell v. Sanders, 615 S.W.2d 467, 468 (Mo.App. 1981) for the proposition that a person cannot receive credit on a sentence before sentence in that case is imposed. Both cases involve situations factually different from the case herein. Specifically, in Blackwell, defendant was incarcerated for almost one year before his first conviction. The court refused to give him credit on a subsequent conviction for that jail time served because he had not been charged with the second offense when he was awaiting trial on the first offense. The court's holding was made even though the sentences were to be served concurrently. Moreover, in Lightfoot, the court acknowledged that the idea of giving credit for time served before a sentence is imposed is neither novel nor unique, and section 558.031 explicitly provides for such credit. Lightfoot, 927 S.W.2d at 472.
The Writ of Certiorari is quashed.