State ex rel. John Doe, Relator v. The Honorable Stanley Moore, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. John Doe, Relator v. The Honorable Stanley Moore, Respondent. Case Number: SC89130 Handdown Date: 08/26/2008 Appeal From: Original Proceeding in Prohibition Counsel for Appellant: Jonathan Sternberg Counsel for Respondent: Michael J. Spillane and John T. Kay Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: A man convicted of child endangerment contests modified conditions of probation. In a 6-0 per curiam decision that cannot be attributed to any particular judge, the Supreme Court of Missouri holds the trial court did not abuse its discretion in placing the man under the modified conditions, which do not constitute retrospective application of the law and do not amount to an ex post facto violation. Facts: John Doe pleaded guilty to first-degree child endangerment, noting he engaged in physical contact, through clothing, with a girl that was inappropriate given their ages. Pursuant to the plea agreement, the trial court suspended imposition of sentence and placed Doe on five years' probation with conditions. The court later modified the conditions to require Doe to be supervised as a sex offender, to be evaluated by a physician at the direction of probation and parole, and to attend and complete sex offender treatment successfully. Doe seeks this Court's writ preventing the trial court from

enforcing these new conditions. WRIT QUASHED. Court en banc holds: The trial court did not abuse its discretion in placing Doe under the modified conditions given his offense, the factual basis for that offense and the recommendations the probation office submitted to the trial court. Because the three modified conditions were authorized before the probation provisions of House Bill No. 1698 were enacted, there is no retrospective application of the law and no ex post facto violation. Citation: Opinion Author: PER CURIAM Opinion Vote: WRIT QUASHED. Stith, C.J., Price, Teitelman, Russell, Wolff and Breckenridge, JJ., concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Facts John Doe pleaded guilty to endangering the welfare of a child in the first degree in violation of section 568.045. (FN1) As a factual basis for the plea, Doe noted he allowed himself to be alone with a girl and engaged in physical contact through clothing that was inappropriate given their ages. Pursuant to a plea agreement, the trial court suspended imposition of sentence and placed Doe on five years' probation with conditions. Subsequently, the trial court modified those conditions to include that Doe be supervised as a sex offender,(FN2) that he be evaluated by a physician at the direction of probation and parole, and that he attend and successfully complete sex offender treatment. Doe contests the new conditions. This Court issued its preliminary writ preventing Relator from

enforcing these conditions. The preliminary writ is quashed. Discussion The circuit courts of this state shall have power to place on probation persons convicted of any offense except as otherwise provided in various sections not pertinent to this case. Section 559.100. The court shall determine any conditions of probation deemed necessary to ensure the successful completion of probation. Id. The court may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the probation term. Section 559.021. The conditions of probation shall be such as the trial court in its discretion deems reasonably necessary to ensure that the defendant will not again violate the law. Id. In this case, the trial court had discretion as to the conditions of probation and the modification of those conditions. State v. Welsh, 853 S.W.2d 466, 469 (Mo. App. 1993). Absent an abuse of that discretion, Doe is not entitled to relief. Id. Given Doe's offense, the factual basis for that offense, and the recommendations of the probation office submitted to the trial court, it cannot be said that the trial court abused its discretion. Id. at 470 (imposition of condition of probation that defendant complete alcohol program not abuse of discretion even if no evidence that alcohol was involved in the offense). Doe contends that the three contested modified conditions violate article I, section 13 of Missouri's constitution because the modified conditions apply the probation provisions of Missouri House Bill 1698 retrospectively to him. The conditions were authorized before enactment of that bill, so there is no retrospective application. For the same reason, there is no ex post facto violation. Conclusion The preliminary writ is quashed. Footnotes: FN1.Except as otherwise specified, all statutory citations are to RSMo Supp. 2007. FN2.The parties agree that Doe is not required to register as a sex offender under sections 589.400, RSMo Supp. 2007, even though he is supervised as a sex offender. Separate Opinion:

None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.