Friday, February 1, 2013


Court process

A crime committed against a person violates state law and thus is a crime against the state. The prosecuting attorney for the county in which the crime occurred usually handles the case.
In a criminal case, the state has the burden of proving beyond a reasonable doubt that the defendant committed the alleged crime. Defendants are presumed innocent and never have the burden of proving their innocence.


Law enforcement personnel investigate reports of criminal activity, gather evidence, make arrests, and present the evidence to the prosecuting attorney. Based on the investigation, police or the sheriff may decide that:
  • A crime has not occurred as defined under state law,
  • There is insufficient evidence to pursue the complaint, or
  • One or more persons may be arrested and the matter referred to the prosecutor.
Any person arrested must be released within 24 hours unless a warrant is issued for an arrest.


If police determine the evidence constitutes an offense and identifies a suspect, the matter is taken to the prosecuting attorney. As the legal representative for the state, the prosecuting or circuit attorney must then determine whether and what formal charges to file.
Once a charge has been filed, usually in the form of a complaint, the prosecutor can go to a judge to obtain an arrest warrant. The court issues the warrant if there are sufficient facts to show probable cause that a felony has been committed by the defendant. This warrant will allow local law enforcement officials to make an arrest.


During a felony trial, witnesses might have to testify at one or more of these three occasions:
  • At the preliminary hearing or before the grand jury
  • At trial
  • At sentencing
Victims may have to testify under oath:
  • At the preliminary hearing
  • At depositions
  • At hearings on pretrial motions, such as hearings on motions to suppress the victim’s identification of the defendant
  • At trial
  • At sentencing


(Not held for misdemeanor cases)
Felony cases begin with a preliminary hearing — a proceeding in which testimony is taken under oath. The defendant may waive a preliminary hearing, and the case usually will be sent directly to circuit court for trial.
If the defendant chooses to proceed with a preliminary hearing, the judge, defendant, defendant’s attorney, prosecutor, and any victims or witnesses subpoenaed will attend.
The prosecutor presents evidence to show the judge that there is probable cause to believe a crime was committed and that it was committed by the defendant.
The defense attorney can cross-examine the state’s witnesses and produce evidence. If probable cause is established, the judge will order the defendant to be bound over for trial.
If the judge decides that probable cause has not been established, the court dismisses the case and the defendant is released. This also may occur if witnesses fail to appear to testify. In some cases the prosecutor can later file another complaint against the defendant, based on the same crime.
At any time, the prosecutor may decide to voluntarily dismiss the charges, called nolle prosequi.


A grand jury sometimes replaces the preliminary hearing as a method by which criminal charges can be filed. A grand jury is composed of a panel of private citizens, chosen similarly to trial juries, whose job is to look into allegations of criminal activity. Not every county has a grand jury.
The prosecutor presents evidence to the grand jurors who decide whether a crime was committed and if the defendant could have committed it. Proceedings are closed to the public, and the accused does not have the right to be present unless subpoenaed, and may not present evidence on his own behalf. The jury has the power to issue subpoenas to compel witnesses to testify or to produce documents and other evidence. As with a preliminary hearing, the case is bound over to the circuit court or the defendant is freed.


A person charged with a bailable offense may be released pending trial on personal recognizance if the judge is assured the person will show up for court.
If a preliminary hearing is held and the defendant is bound over for trial, bail is discussed at that time. For grand jury indictments, bail is addressed at the defendant’s arraignment.
The judge may release the person on bail by imposing any number of conditions as specified under state law. Release on bail is not available for “capital offenses” where the accused is subject to punishment by death.


This is the first formal presentation of charges to the defendant, who must enter a plea. Also, the judge can raise or lower the defendant’s bond. The arraignment is open to the public.
After arraignment, an assistant prosecuting or circuit attorney is assigned to the case (for larger prosecutor offices). In some cases, the same prosecutor will be assigned from the onset and the case is added to a judge's docket.
The court sets a trial date and hearing dates on pretrial motions. The trial date may change because of requests for continuances or because of other cases on the trial docket for that day.


1. Discovery

Discovery is the process in which the state and defense can obtain information before trial. The discovery rules provide the defendant with sufficient information to make an informed plea, to encourage thorough trial preparation, to avoid surprises at trial, to conserve resources, and to expedite case processing.
Under the U.S. Constitution, the state must disclose evidence if there is a reasonable probability that the trial outcome would have been different if the evidence had been disclosed.
State law also requires disclosure of certain information. A defendant may obtain the deposition of any person. However in some circumstances, the prosecuting attorney may make a motion to exclude the defendant from the deposition of a child younger than 17 who has been victimized. Also, the trial court may issue special protective orders.

2. Plea Bargaining

Plea bargaining is the process in which the prosecution makes charging and sentencing concessions in exchange for a guilty plea. Among reasons the prosecution may avoid going to trial:
During the trial, don’t talk to the defendant or jurors. It is your decision whether you discuss the case with the defense attorneys.
  • To avoid further trauma to victims, such as a child who was sexually assaulted.
  • The victim, though prepared to testify, would prefer to end the case.
  • Evidence will support a conviction but other factors, such as issues of credibility, favor entering into a plea.
  • The defendant agrees to cooperate with the state in the prosecution of a codefendant.
Under Missouri law, the prosecutor may agree to:
  • Dismiss other charges.
  • Recommend or agree not to oppose the defendant’s request for a particular sentence.
  • Agree that the particular sentence is appropriate.
  • Recommend or agree on another case disposition.
The trial court is not required to accept a plea agreement, but if the court rejects the agreement, the defendant may withdraw his guilty plea. To be valid, the guilty plea must be entered “knowingly, intelligently, and voluntarily.”

3. Continuance

A criminal proceeding may be continued (or pushed to a later date) for what is referred to as “good cause shown.”


1. Noncapital cases

In all criminal cases, a trial may be held before a jury or, if the defendant does not want a jury trial, before a judge. Typically, jury-tried cases include a jury selection procedure (general voir dire), a guilt phase, and a sentencing phase. The jury may recommend a sentence. The judge sentences the defendant.

2. Capital cases

The state can seek the death penalty only in first-degree murder cases, which requires that the defendant acted with deliberation. Jury selection occurs in two phases. During the death qualification phase, the state and the defense may question prospective jurors about their views on capital punishment and whether they can consider the full range of punishment — life imprisonment without the possibility of probation or parole, or death. Prospective jurors can be struck for cause if their views would substantially affect their ability to perform. In the general phase, the parties may question jurors about their background, which aids in using peremptory challenges (removing for any reason).
The guilt phase then begins. As in all criminal cases, before presenting evidence, the prosecutor must make an opening statement, summarizing the evidence. The defense then may make an opening statement or may wait and make it before presenting its own evidence.
If the jury returns a guilty verdict, the penalty phase begins. Again, the prosecutor makes an opening statement; the defense may follow with one or present it at the beginning of its case. The state then presents evidence to establish beyond a reasonable doubt at least one aggravating circumstance to qualify for the death penalty. The defense can produce evidence in mitigation.

3. Presentence investigation (Sentencing Assessment Report)

Before sentencing, the state Board of Probation and Parole may investigate to determine if the defendant is eligible for probation and may make a recommendation to the judge. Victims are asked to make victim impact statements, describing how the crime has impacted their lives. They are included in the presentence investigation report.

4. Motion for new trial

A new trial may be granted upon “good cause shown” by the defendant. The motion for new trial must be filed within 10 days from the date of conviction. The trial court can grant a one-time extension of 15 days.

5. Sentencing

Sentencing, release

State law sets prison terms and fines. Multiple sentences run concurrently (at the same time) unless the court specifies them to run consecutively (one after the other). But for multiple offenses including rape, forcible rape, sodomy, forcible sodomy, or an attempt to commit any of those felonies, the sentence on the sexual offense must run consecutive to the other offense.
A defendant will receive credit for time served in jail or prison awaiting trial if the incarceration was not for time served on a different, unrelated offense.
The law also sets a conditional release term when a felon can be considered for release, unless he has committed a dangerous felony or previously has been sentenced to the state prisons. A dangerous felony includes first-degree arson, forcible rape and robbery; forcible sodomy; kidnapping; and second-degree murder; or the attempt of any of these.
A felon’s length of sentence determines how soon the state Board of Probation and Parole considers a conditional release. (See chart)
For each crime, the statute creating the offense specifies a range of punishment, such as five to 15 years’ imprisonment.
If the jury recommends a sentence for the defendant, the judge cannot increase the punishment but can reduce it. In some cases where the defendant has prior criminal convictions, only the judge considers punishment. The victim or family of a deceased victim has the right to be present and to make a statement at the sentencing hearing.
Offenders sentenced to one year or more are sent to prison. A lesser sentence generally is served in a county jail.
If a defendant is sentenced to imprisonment, that sentence will be stated in days or years, such as “fifteen years imprisonment.” However, the judge may suspend execution of the sentence and place the defendant on probation subject to conditions. Or the judge may decide not to sentence the defendant but to suspend imposition of sentence and place the offender on probation. The defendant also may be ordered to make restitution, to pay court courts, and to pay a fine.


1. Direct appeal

The state cannot appeal an acquittal of the defendant. If the defendant is found guilty, the defendant must appeal the decision within 10 days after the court officially pronounces the sentence. Appeals are heard by the Missouri Court of Appeals, unless a death sentence is imposed. Then the appeal goes directly to the Missouri Supreme Court.
The attorney general represents the state in all felony appeals. Any victim wanting to be informed of the appellate procedure and case status must make the request in writing to the Missouri Attorney General’s Office. A form is included on page 29 of the pdf version of this publication and can be sent directly or copied.
If the conviction and sentence are affirmed, the defendant can present to the U.S. Supreme Court federal constitutional claims in a petition for writ of certiorari, but such review is discretionary.
If a misdemeanor conviction is appealed, the prosecuting attorney for the county from which the conviction arose will represent the state.

2. Postconviction motions

Missouri Supreme Court Rule 24.035 and Rule 29.15 provide the only remedy for seeking postconviction relief from a judgment of conviction and sentence, alleging:
  • The violation of the constitution and laws of Missouri or the U.S. Constitution,
  • The sentence exceeds the statutory maximum, or
  • The court imposing sentence did not have jurisdiction.
Rule 24.035 applies to guilty pleas, Rule 29.15 applies to guilty verdicts.
If a direct appeal is brought, the postconviction motion must be filed within 90 days after the appellate court issued its mandate; otherwise the motion must be filed within 90 days after the defendant entered the prison system.
An appeal from the denial of a postconviction motion may also be brought before the state Supreme Court or the Court of Appeals, and must be filed within 10 days of the final judgment (40 days from denial of the motion).
A petition for writ of certiorari also may be filed in the U.S. Supreme Court following affirmation of the denial of the postconviction motion. Again, review is discretionary.

3. Federal habeas corpus proceedings

Under federal law, a state offender may seek relief by filing a federal writ of habeas corpus in the U.S. District Court. A federal habeas petition must raise the ground that the petitioner’s imprisonment violates the U.S. Constitution or U.S. laws or treaties. The Missouri attorney general defends the state against habeas challenges.
A habeas petitioner generally is not entitled to an evidentiary hearing on claims for relief. If a hearing is granted, it focuses on allegations that the conviction and/or sentence are in violation of the Constitution.
If the district court grants the writ, the inmate is not automatically released from prison. Generally the court issues an order directing that the state either begin trial proceedings against the inmate within 60 days, or release him.
When a writ is granted, the state can request the district court to reconsider its opinion. If that request is denied, the state can ask that the writ be stayed, suspending the court order. An appeal challenging the district court’s decision is then taken to the 8th U.S. Circuit Court of Appeals for a review by a three-judge panel.
If the 8th Circuit affirms the decision of the district court, the state may request that the panel rehear the appeal or that the entire court hear it. If these requests are denied, the state may ask the U.S. Supreme Court to hear the case by filing a writ of certiorari. The Supreme Court has the discretion on whether to hear a case.
If the district court denies the writ, the inmate must obtain the permission of the district court or federal appeals court to proceed. If permission is granted, the habeas petition then would proceed through the same steps as above.


Parole hearing

Inmates sentenced to two or more years of incarceration must serve a set amount of months before they are scheduled for a parole hearing. The length of sentences and required months to be served before a parole hearing can be held:
Years of sentenceMonths served before hearing

1. Minimum prison terms

Offenders previously convicted of one or more felonies must serve a percentage of the new sentence. The number of prior convictions determines the percentage of time served before the inmate is eligible for parole.
Defendants convicted of committing a dangerous offense, as defined by statute, must serve a minimum 85 percent of the sentence. If the minimum eligibility date exceeds the conditional release date, the offender is not entitled to conditional release.

2. Parole hearings

The Board of Probation and Parole decides when prisoners are eligible for release on parole. A victim or family of a deceased victim may attend parole hearings or provide information to the board about the crime and request that parole be denied. Once released, the offender remains in the legal custody of the Department of Corrections and is subject to the board’s orders.


MISSOURI REVISED STATUTES, Chapter 558, provides for these terms of imprisonment:
Class A felony:
Death or life imprisonment without the possibility of probation or parole. For offenders younger than 16 at the time of the offense, the penalty is life without the possibility of probation or parole. Example: First-degree murder pursuant to Section 565.020, RSMo.
Class A felony:
10-30 years or life imprisonment. Examples: Second-degree murder; first-degree robbery.
Class B felony:
5-15 years. Examples: Voluntary manslaughter; second-degree robbery; firstdegree burglary.
Class C felony:
Up to seven years. Examples: Involuntary manslaughter; second-degree assault; deviate sexual assault; second-degree statutory rape; stealing a car; third stealing offense; forgery.
Class D felony:
Up to four years. Examples: Passing bad check with no account; second-degree odometer fraud; parental kidnapping.
Class A misdemeanor:
Up to one year. Examples: Fraudulent use of a credit device, value of property or services is less than $500; false advertising; reckless burning; passing bad checks worth less than $500.
Class B misdemeanor:
Up to six months. Examples: First DWI offense; first-degree trespass; removing plants from highways and roadways.
Class C misdemeanor:
Up to 15 days. Examples: Driving with excessive blood alcohol content, first offense; library theft of less than $500.


CHAPTER 560, RSMo, allows for persons convicted of crimes to be sentenced these fines:
Class C or D felony:
Up to $5,000, or up to twice the amount of the offender’s gain from the crime, not to exceed $20,000.
Class A misdemeanor:
Up to $1,000.
Class B misdemeanor:
Up to $500.
Class C misdemeanor:
Up to $300.
Up to $200.
These penalties do not apply in cases where the statutes outline fines for a specific offense.
In lieu of the fines listed above, a person convicted of a misdemeanor or infraction may be fined up to twice the amount of the offender’s gain from the offense, not to exceed $20,000.
< Back | CONTINUED | Next >

AGO en espaƱol    |    State homepage   |    Missouri statutes   |    Fo

No comments: