SECOND REGULAR SESSION

HOUSE BILL NO. 768

88TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES KEEVEN (Sponsor) AND HALL.

Pre-filed December 1, 1995 and 1000 copies ordered printed.

DOUGLAS W. BURNETT, Chief Clerk

L1888.01I

AN ACT

To repeal sections 556.061, 558.011, 558.019, and 559.021, RSMo 1994, relating to crimes and punishment, and to enact in lieu thereof seven new sections relating to the same subject, with penalty provisions.

Be it enacted by the General Assembly of the state of Missouri, as follows:

Section A. Sections 556.061, 558.011, 558.019, and 559.021, RSMo 1994, are repealed and seven new sections enacted in lieu thereof, to be known as sections 556.061, 558.011, 558.019, 559.021, 1, 2, and 3, to read as follows:

556.061. In this code, unless the context requires a different definition, the following shall apply:

(1) "Affirmative defense" has the meaning specified in section 556.056;

(2) "Burden of injecting the issue" has the meaning specified in section 556.051;

(3) "Commercial film and photographic print processor", any person who develops exposed photographic film into negatives, slides or prints, or who makes prints from negatives or slides, for compensation. The term "commercial film and photographic print processor" shall include all employees of such persons but shall not include a person who develops film or makes prints for a public agency;

(4) "Confinement":

(a) A person is in confinement when [he] the person is held in a place of confinement pursuant to arrest or order of a court, and remains in confinement until:

a. A court orders [his] the person's release; or

b. [He] The person is released on bail, bond, or recognizance, personal or otherwise; or

c. A public servant having the legal power and duty to confine [him] the person authorizes [his] the person's release without guard and without condition that [he] the person return to confinement;

(b) A person is not in confinement if:

a. [He] The person is on probation or parole, temporary or otherwise; or

b. [He] The person is under sentence to serve a term of confinement which is not continuous, or is serving a sentence under a work-release program, and in either such case is not being held in a place of confinement or is not being held under guard by a person having the legal power and duty to transport [him] the person to or from a place of confinement;

(5) "Consent": Consent or lack of consent may be expressed or implied. Assent does not constitute consent if:

(a) It is given by a person who lacks the mental capacity to authorize the conduct charged to constitute the offense and such mental incapacity is manifest or known to the actor; or

(b) It is given by a person who by reason of youth, mental disease or defect, or intoxication, is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) It is induced by force, duress or deception;

(6) "Criminal negligence" has the meaning specified in section 562.016, RSMo;

(7) "Custody", a person is in custody when [he] the person has been arrested but has not been delivered to a place of confinement;

(8) "Dangerous felony" means the felonies of armed criminal action, arson in the first degree, assault in the first degree, burglary, causing catastrophe, felonious restraint, forcible rape, forcible sodomy, kidnapping, voluntary manslaughter, murder [in the second degree and], robbery in the first degree[;], trafficking drugs in the first degree, or the attempt to commit any of these felonies. A person shall be deemed to have committed a dangerous felony if such person has pleaded guilty to or been found guilty of a felony and has previously on different occasions pleaded guilty to or been found guilty of two or more felony offenses of this state or of the United States or any other state or territory or district;

(9) "Dangerous instrument" means any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury;

(10) "Deadly weapon" means any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles;

(11) "Felony" has the meaning specified in section 556.016;

(12) "Forcible compulsion" means either:

(a) Physical force that overcomes reasonable resistance; or

(b) A threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of himself or herself or another person;

(13) "Incapacitated" means that physical or mental condition, temporary or permanent, in which a person is unconscious, unable to appraise the nature of [his] the person's conduct, or unable to communicate unwillingness to an act. A person is not "incapacitated" with respect to an act committed upon [him] the person if [he] the person became unconscious, unable to appraise the nature of [his] the person's conduct or unable to communicate unwillingness to an act, after consenting to the act;

(14) "Infraction" has the meaning specified in section 556.021;

(15) "Inhabitable structure" has the meaning specified in section 569.010, RSMo;

(16) "Knowingly" has the meaning specified in section 562.016, RSMo;

(17) "Law enforcement officer" means any public servant having both the power and duty to make arrests for violations of the laws of this state, and federal law enforcement officers authorized to carry firearms and to make arrests for violations of the laws of the United States;

(18) "Misdemeanor" has the meaning specified in section 556.016;

(19) "Offense" means any felony, misdemeanor or infraction;

(20) "Physical injury" means physical pain, illness, or any impairment of physical condition;

(21) "Place of confinement" means any building or facility and the grounds thereof wherein a court is legally authorized to order that a person charged with or convicted of a crime be held;

(22) "Possess" or "possessed" means having actual or constructive possession of an object with knowledge of its presence. [A person has actual possession if he has the object on his] "Actual possession" is when a person has an object on his or her person or within easy reach and convenient control. [A person has constructive possession if he] "Constructive possession" is when a person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of an object, possession is sole. If two or more persons share possession of an object, possession is joint;

(23) "Public servant" means any person employed in any way by a government of this state who is compensated by the government by reason of [his] such employment. It includes, but is not limited to, legislators, jurors, members of the judiciary and law enforcement officers. It does not include witnesses;

(24) "Purposely" has the meaning specified in section 562.016, RSMo;

(25) "Recklessly" has the meaning specified in section 562.016, RSMo;

(26) "Ritual" or "ceremony" means an act or series of acts performed by two or more persons as part of an established or prescribed pattern of activity;

(27) "Serious emotional injury", an injury that creates a substantial risk of temporary or permanent medical or psychological damage, manifested by impairment of a behavioral, cognitive or physical condition. "Serious emotional injury" shall be established by testimony of qualified experts upon the reasonable expectation of probable harm to a reasonable degree of medical or psychological certainty;

(28) "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body;

(29) "Sexual conduct" means acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification;

(30) "Sexual contact" means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person;

(31) "Sexual performance", any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen years of age;

(32) "Voluntary act" has the meaning specified in section 562.011, RSMo.

558.011. 1. The authorized terms of imprisonment, including both prison and conditional release terms, are:

(1) For a class A felony, a term of years not less than ten years and not to exceed thirty years, or life imprisonment;

(2) For a class B felony, a term of years not less than five years and not to exceed fifteen years;

(3) For a class C felony, a term of years not to exceed seven years;

(4) For a class D felony, a term of years not to exceed five years;

(5) For a class A misdemeanor, a term not to exceed one year;

(6) For a class B misdemeanor, a term not to exceed six months;

(7) For a class C misdemeanor, a term not to exceed fifteen days.

2. In cases of class C and D felonies, the court shall have discretion to imprison for a special term not to exceed one year in the county jail or other authorized penal institution, and the place of confinement shall be fixed by the court. If the court imposes a sentence of imprisonment for a term longer than one year upon a person convicted of a class C or D felony, it shall commit the person to the custody of the department of corrections for a term of years not less than two years and not exceeding the maximum authorized terms provided in subdivisions (3) and (4) of subsection 1 of this section.

3. (1) When a regular sentence of imprisonment for a felony is imposed, the court shall commit the defendant to the custody of the department of corrections for the term imposed under section 557.036, RSMo, or until released under procedures established elsewhere by law.

(2) A sentence of imprisonment for a misdemeanor shall be for a definite term and the court shall commit the defendant to the county jail or other authorized penal institution for the term of [his] the defendant's sentence or until released under procedure established elsewhere by law.

4. (1) A sentence of imprisonment for a term of years for felonies other than dangerous felonies as defined in section 556.061, RSMo, and other than sentences of imprisonment which involve the individual's fourth or subsequent remand to the department of corrections [shall], may consist of a prison term, and a conditional release term[. The conditional release term] if the minimum sentence of imprisonment imposed pursuant to law has been served prior to the expiration of the entire sentence. The conditional release term of any term imposed under section 557.036, RSMo, shall be:

(a) One-third for terms of nine years or less;

(b) Three years for terms between nine and fifteen years;

(c) Five years for terms more than fifteen years; and the prison term shall be the remainder of such term. The prison term may be extended by the board of probation and parole pursuant to subsection 5 of this section.

(2) "Conditional release" means the conditional discharge of an offender by the board of probation and parole, subject to conditions of release that the board deems reasonable to assist the offender to lead a law-abiding life, and subject to the supervision under the state board of probation and parole. The conditions of release shall include avoidance by the offender of any other crime, federal or state, and other conditions that the board in its discretion deems reasonably necessary to assist the release of the offender in avoiding further violation of the law.

5. The date of conditional release from the prison term may be extended up to a maximum of the entire sentence of imprisonment by the board of probation and parole. The director of any division of the department of corrections except the board of probation and parole may file with the board of probation and parole a petition to extend the conditional release date when an offender fails to follow the rules and regulations of the division or commits an act in violation of such rules. Within ten working days of receipt of the petition to extend the conditional release date, the board of probation and parole shall convene a hearing on the petition. The offender shall be present and may call witnesses [in his] on behalf of the offender and cross-examine witnesses appearing against [him] the offender. The hearing shall be conducted as provided in section 217.670, RSMo. If the violation occurs in close proximity to the conditional release date, the conditional release may be held for a maximum of fifteen working days to permit necessary time for the division director to file a petition for an extension with the board and for the board to conduct a hearing, provided some affirmative manifestation of an intent to extend the conditional release has occurred prior to the conditional release date. If at the end of a fifteen-working-day period a board decision has not been reached, the offender shall be released conditionally. The decision of the board shall be final.

558.019. 1. This section shall not be construed to affect the powers of the governor under article IV, section 7, of the Missouri Constitution. This [statute] section shall not affect those provisions of section 565.020, RSMo, 558.018 or 571.015, RSMo, which set minimum terms of sentences, or the provisions of section 559.115, RSMo, relating to probation.

2. The provisions of this section shall be applicable to all classes of felonies except those set forth in chapter 195, RSMo, and those otherwise excluded in subsection 1 of this section. For purposes of this section, prior remands to the department of corrections shall not include commitment to a regimented discipline program established pursuant to section 217.378, RSMo. Other provisions of the law to the contrary notwithstanding, any defendant who has pleaded guilty to or has been found guilty of a felony other than a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve the following minimum prison terms:

(1) If the defendant has [one] two or less previous [remand] remands to the department of corrections for a felony offense, the minimum prison term which the defendant [must] shall serve shall be [forty] eighty percent of [his] the sentence imposed or until the defendant attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first;

(2) If the defendant has [two] three or more previous remands to the department of corrections for felonies unrelated to the present offense, the [minimum prison term which the] defendant [must] shall serve [shall be fifty] one hundred percent of [his] the sentence imposed without the possibility of parole, probation, or conditional release or until the defendant attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first;

(3) If the defendant has [three] two or more previous remands to the department of corrections for felonies unrelated to the present offense[, the minimum prison term which the defendant must serve shall be eighty percent of his sentence] and has pleaded guilty to or has been found guilty of a third or subsequent felony and sentenced to life imprisonment, the defendant shall serve a duration of imprisonment for the remainder of the natural life of the defendant without the possibility of parole, probation, or conditional release, or until the defendant attains seventy years of age[,] and has served at least forty percent of the sentence imposed[, whichever occurs first].

3. Other provisions of the law to the contrary notwithstanding, any defendant who has pleaded guilty to or has been found guilty of a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve a minimum prison term of [eighty-five] one hundred percent of the sentence imposed by the court or until the defendant attains seventy years of age[,] and has served at least [forty] sixty percent of the sentence imposed, whichever occurs first.

4. For the purpose of determining the minimum prison term to be served, the following calculations shall apply:

(1) A sentence of life shall be calculated to be thirty years;

(2) Any sentence either alone or in the aggregate with other consecutive sentences for crimes committed at or near the same time which is over seventy-five years shall be calculated to be seventy-five years.

5. For purposes of this section, the term "minimum prison term" shall mean time required to be served by the defendant before [he] the defendant is eligible for parole, conditional release or other early release by the department of corrections[.], except that the board of probation and parole, in the case of consecutive sentences imposed at the same time pursuant to a course of conduct constituting a common scheme or plan, shall be authorized to convert consecutive sentences to concurrent sentences[,] when the board finds, after hearing with notice to the prosecuting or circuit attorney, that the sum of the terms results in an unreasonably excessive total term, taking into consideration all factors related to the crime or crimes committed and the sentences received by others similarly situated.

6. (1) A sentencing advisory commission is hereby created to consist of eleven members. One member shall be appointed by the speaker of the house. One member shall be appointed by the president pro tem of the senate. One member shall be the director of the department of corrections. Six members shall be appointed by and serve at the pleasure of the governor from among the following: the public defender commission; private citizens; a private member of the Missouri Bar; the board of probation and parole; and a prosecutor. Two members shall be appointed by the supreme court, one from a metropolitan area and one from a rural area. All members of the sentencing commission appointed prior to August 28, 1994, shall continue to serve on the sentencing advisory commission at the pleasure of the governor.

(2) The commission shall study sentencing practices in the circuit courts throughout the state for the purpose of determining whether and to what extent disparities exist among the various circuit courts with respect to the length of sentences imposed and the use of probation for defendants convicted of the same or similar crimes and with similar criminal histories. The commission shall also study and examine whether and to what extent sentencing disparity among economic and social classes exists in relation to the sentence of death and if so, the reasons therefor. It shall compile statistics, examine cases, draw conclusions, and perform other duties relevant to the research and investigation of disparities in death penalty sentencing among economic and social classes.

(3) The commission shall establish a system of recommended sentences, within the statutory minimum and maximum sentences provided by law for each felony committed under the laws of this state. This system of recommended sentences shall be distributed to all sentencing courts within the state of Missouri. The recommended sentence for each crime shall take into account, but not be limited to, the following factors:

(a) The nature and severity of each offense;

(b) The record of prior offenses by the offender;

(c) The data gathered by the commission showing the duration and nature of sentences imposed for each crime; and

(d) The resources of the department of corrections and other authorities to carry out the punishments that are imposed.

(4) The commission shall publish and distribute its system of recommended sentences on or before July 1, 1995. The commission shall study the implementation and use of the system of recommended sentences until July 1, 1998, and return a final report to the governor, the speaker of the house of representatives, and the president pro tem of the senate. Following the July 1, 1998, report, the commission may revise the recommended sentences every three years.

(5) The governor shall select a chairperson who shall call meetings of the commission as required or permitted pursuant to the purpose of the sentencing commission.

(6) The members of the commission shall not receive compensation for their duties on the commission, but shall be reimbursed for actual and necessary expenses incurred in the performance of these duties and for which they are not reimbursed by reason of their other paid positions.

(7) The circuit and associate circuit courts of this state, the office of the state courts administrator, the department of public safety, and the department of corrections shall cooperate with the commission by providing information or access to information needed by the commission. The office of the state courts administrator will provide needed staffing resources.

[7. The provisions of this section shall apply only to offenses occurring on or after August 28, 1994.]

559.021. 1. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to insure that the defendant will not again violate the law. When a defendant is placed on probation [he] the defendant shall be given a certificate explicitly stating the conditions on which [he] the defendant is being released.

2. In addition to such other authority as exists to order conditions of probation, the court [may] shall order such conditions as the court believes will serve to compensate the victim, any dependent of the victim, or society. Such conditions may include, but shall not be limited to:

(1) Restitution to the victim or any dependent of the victim, in an amount to be determined by the judge; and

(2) The performance of a designated amount of free work for a public or charitable purpose, or purposes, as determined by the judge[.]; and

(3) Successful completion and payment of all costs of a drug or alcohol rehabilitation program designated by the court, if the defendant pleaded guilty to or was found guilty of a violation of chapter 195, RSMo, or a criminal offense involving alcohol or a controlled substance.

3. The defendant may refuse probation conditioned on the performance of free work. If [he] the defendant does so, the court shall decide the [extent or] duration of sentence [or other disposition to be imposed] and render judgment accordingly. Any county, city, person, organization, or agency, or employee of a county, city, organization or agency charged with the supervision of such free work or who benefits from its performance shall be immune from any suit by the defendant or any person deriving a cause of action from [him] the defendant if such cause of action arises from such supervision of performance, except for an intentional tort or gross negligence. The services performed by the defendant shall not be deemed employment within the meaning of the provisions of chapter 288, RSMo.

4. The court may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the probation term.

Section 1. Notwithstanding any provision of chapter 217, RSMo, to the contrary, all offenders who are incarcerated within a facility of the department of corrections shall participate in mandatory duties and labor as prescribed by the department. The department and any division of the department may excuse any offender from the performance of such required duties and labor for disciplinary or other reasons. Any offender who does not participate in the performance of such required duties and labor shall not be eligible for the award of any credit pursuant to section 558.041, RSMo.

Section 2. 1. No prosecuting attorney or circuit attorney shall engage in any bargaining for the reduction of the class of crime charged by the prosecuting attorney or circuit attorney in exchange for a plea of guilty if the offense charged or contemplated to be charged by the prosecuting attorney or circuit attorney is a dangerous felony as defined in section 556.061, RSMo.

2. No prosecuting attorney or circuit attorney shall engage in any bargaining for the reduction of the class of crime charged by the prosecuting attorney or circuit attorney in exchange for a plea of guilty if the person charged or to be charged with an offense has pleaded guilty or been found guilty of at least two prior criminal offenses in this state or any other jurisdiction.

Section 3. 1. The "Criminal Justice Commission" is hereby created and shall consist of the following members:

(1) Two members of the house of representatives, no more than one of whom shall be a member of the same political party, who shall be appointed by the speaker of the house;

(2) Two members of the senate, no more than one of whom shall be a member of the same political party, who shall be appointed by the president pro tem of the senate;

(3) Three members who shall be appointed by the governor from among the following: the public defender commission, the board of probation and parole, and prosecuting and circuit attorneys;

(4) Two members appointed by the supreme court en banc;

(5) The director of the department of corrections.

2. The commission shall:

(1) Study the feasibility and desirability of legislation which would establish minimum sentencing guidelines to be followed by the circuit courts of this state;

(2) Study the current work and labor programs existing within the department of corrections and examine the feasibility and desirability of establishing guidelines for future work and labor programs, and examine the consequences of nonparticipation by offenders in such programs;

(3) Examine proposed guidelines for first and second time offenders within the department of corrections for eligibility for and participation in community service programs;

(4) Study the current educational and rehabilitation programs existing within the department of corrections and examine the feasibility and desirability of establishing guidelines for future educational and rehabilitation programs;

(5) Study the current method and procedure for the execution of the death penalty in Missouri and examine the feasibility and desirability of expediting the execution of the death penalty;

(6) Study the existing guidelines issued by the division of probation and parole for eligibility for release from incarceration and examine the feasibility and desirability of enhancing the requirements for eligibility;

(7) Study the existence of closed United States military bases in Missouri and examine the possibility of acquiring possession of such property for the purpose of converting such property into state prisons;

(8) Recommend legislation to the governor, the speaker of the house of representatives, the president pro tem of the senate and the supreme court concerning any issue examined or studied pursuant to this subsection;

(9) Coordinate efforts with the sentencing advisory commission created pursuant to section 558.019, RSMo.

3. The commission shall deliver a report to the governor, the speaker of the house of representatives, and the president pro tem of the senate no later than January fifteenth of each year after August 28, 1996.

4. The commission shall elect a chairperson who shall call meetings of the commission as required or permitted pursuant to the purpose of the commission.

5. The members of the commission shall not receive compensation for their duties on the commission, but shall be reimbursed for actual and necessary expenses incurred in the performance of these duties and for which they are not reimbursed by reason of their other paid positions.

6. The circuit and associate circuit courts of this state, the sentencing advisory commission, the office of the state courts administrator, the department of public safety, and the department of corrections shall cooperate with the commission by providing information or access to information needed by the commission. The office of the state courts administrator will provide needed staffing resources.