State v. Benny Burgos, 2024AP1497-CR, 6/3/25, District I (not recommended for publication); case activity
In an interesting appeal presenting questions of statutory construction and appellate jurisdiction, COA uses principles of equity to reach the merits and reverses in Burgos’s favor.
Burgos was made eligible for SAP at his original sentencing in 2016. (¶2). He enrolled in the program, completed it, and obtained early release from prison. (¶3). His extended supervision was then revoked and, in 2022, he returned to prison. (Id.). At this point, Burgos was able to take advantage of a favorable change in DOC policy that permitted inmates to participate in SAP more than once. (Id.). Burgos re-enrolled and, following his completion of the program, DOC notified the circuit court and requested that he be released to ES. (¶4).
The court denied the request, citing to § 302.113(9)(b). (Id.). DOC then filed a request for reconsideration, which was apparently not served on Burgos. (¶6). The court denied that request, too. (Id.). Several months later, Burgos filed his own motion for reconsideration, which was also denied. (¶7). Burgos appeals, and COA analyzes two issues:
Appellate Jurisdiction
To begin, the procedural posture of the case poses a potential problem for Burgos. Although he is appealing from his motion to reconsider the denial of release following completion of SAP, COA points out that “No right of appeal exists from an order denying a motion to reconsider which presents the same issues as those determined in the order or judgment sought to be reconsidered.” (¶14). The State points out that Burgos’s motion simply re-raised the same issues previously before the circuit court and, under a straightforward reading of the “new issues” test, COA is without jurisdiction to decide this appeal. (¶15).
Under these unique facts, however, COA declines to boot Burgos’s appeal on procedural grounds. COA focuses on the fact that the earlier documents filed with the court were filed by a non-party, the DOC, and Burgos was not made aware of those requests. (¶17).”What constitutes a new issue cannot be interpreted so narrowly that it would preclude an actual party to the case from seeking review when the circuit court’s prior orders denied the defendant’s release after an ex parte communication from a non-party and without the benefit of any argument from the parties.” (¶16). Accordingly, COA holds that it is entitled to reach the merits.
Whether Burgos was Entitled to Release
Although the State concedes that Burgos is entitled to release, COA does not simply accept the stipulation; instead, it engages in a process of statutory construction to determine the correct result.
Here, the legal issues hinges on a potential conflict between two statutes. Under § 302.05(3)(c)2, the circuit court “shall” modify the defendant’s sentence to provide for release to extended supervision within 30 days of receiving notification from DOC that the person has completed SAP. (¶22). However, as the circuit court recognized, § 302.113(9)(b) states that “A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the order under [§ 302.113(9)(am)].” (¶23). While COA agrees that this statute “appears” to require an inmate in Burgos’s position “to serve his entire period of reconfinement ordered by DHA,” it ultimately reaches a different interpretation and disagrees with the circuit court’s reading.
Here, § 302.05 is a more specific statute applying “to a smaller subset of inmates eligible for SAP.” (¶24). “In this case, both statutes apply to Burgos’s case because he is both a felony offender returned to prison after his extended supervision was revoked and he is an inmate that DOC determined successfully completed SAP. However, § 302.05 being the more specific statute controls.” (Id.). Moreover, there is nothing in the statutes which would indicate a specific legislative directive barring inmates like Burgos from attending SAP more than once. Lacking a direct legislative command to exclude Burgos from early release, COA is disinclined to read one into the statutes. (¶25).
Accordingly, COA reverses the order denying early release to extended supervision.
