 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Duncan v. Missouri Department of Corrections2/11/2003
stody from March 4, 1999, to January 21, 2000, for the St. Francois County charge if his probation violation offense had not existed or he had been paroled before January 21, 2000. These claims assume facts that are not in evidence in the present case. Appellate courts do not render advisory opinions or decide non-existent issues. State ex rel. Mo. Cable Television Ass'n v. Mo. Pub. Serv. Comm'n, 917 S.W.2d 650, 652 (Mo.App. W.D. 1996) (citing Warren v. Warren, 601 S.W.2d 683, 687 (Mo.App. W.D. 1980)). Thus, this portion of Mr. Duncan's first point on appeal is not addressed. The other portion of Mr. Duncan's first point on appeal is denied.
In his second point on appeal, Mr. Duncan claims that the trial court relied on the DOC's internal policy regarding prisoner eligibility standards for jail time credit instead of on section 558.031.1, RSMo Cum. Supp. 1998. He claims that the DOC's internal policy is more stringent than section 558.031.1, RSMo Cum. Supp. 1998, in that it requires the new offense be the reason for the probation revocation. The appellant "has the duty to present a record that contains 'all the evidence necessary for our making determinations in the issues raised.'" In re J.D., 34 S.W.3d 432, 435 (Mo.App. W.D. 2000) (quoting State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D. 1998)); see Rule 81.12(c) Missouri Rules of Civil Procedure (2002). "If a matter complained of is not present in the record, there is nothing for this court to review." In re J.D., 34 S.W.3d at 435. Appellate courts are bound by the record on appeal and cannot speculate as to what evidence may have been presented below which is not reflected by the record. Id. "Documents. . .never presented to or considered by the trial court may not, moreover, be introduced into the record on appeal." Olson v. Christian County, 952 S.W.2d 736, 738 (Mo.App. S.D. 1997) (citing Marc's Rest., Inc. v. CBS, Inc., 730 S.W.2d 582, 584 (Mo.App. E.D. 1987)). Because the DOC's internal procedures, specifically General Council Criteria #2, was never presented to the trial court and made a part of the record, it is not reviewed here. Mr. Duncan's second point on appeal is denied.
Mr. Duncan argues in his third point that the trial court erred in finding that Goings v. Missouri Department of Corrections, 6 S.W.3d 906, 908 (Mo. banc 1999), did not apply to his case. He contends that Goings stands for the proposition that section 558.031.1 does not require the conduct that placed him into custody be the same conduct that resulted in his probation being revoked. Mr. Duncan claims that he is entitled to jail time credit for this time period he was in custody even though the conduct that caused him to be placed into custody was not the same conduct that resulted in his probation being revoked. The State argues that Goings is inapplicable because unlike the present case, the petitioner's parole in Goings was revoked upon the same conduct for which he was later convicted.
Mr. Duncan's reliance on Goings is misplaced. The difference between this case and Goings is that in Goings the time that the defendant spent in custody from the date of the offense until the commencement of his sentence was "related to that offense" for which he was placed into custody. Goings, 6 S.W.3d at 908. Gary Goings' conduct that violated the conditions of his parole and resulted in his parole revocation was the same conduct that constituted a criminal act and caused him to be placed into custody, for which he was later convicted. Mr. Duncan's probation was revoked for conduct different than the criminal conduct that placed him into custody and for which he was later convicted. His probation was revoked because of his consumption of alcohol
Page 1 2 3 4 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|