557.036. Role of court and jury in sentencing--two stages of trial--punishment assessed by jury, when. - Missouri Statutes

Role of court and jury in sentencing--two stages oftrial--punishment assessed by jury, when.

557.036. 1. Upon a finding of guilt upon verdict or plea, the courtshall decide the extent or duration of sentence or other disposition to beimposed under all the circumstances, having regard to the nature andcircumstances of the offense and the history and character of the defendantand render judgment accordingly.

2. Where an offense is submitted to the jury, the trial shall proceedin two stages. At the first stage, the jury shall decide only whether thedefendant is guilty or not guilty of any submitted offense. The issue ofpunishment shall not be submitted to the jury at the first stage.

3. If the jury at the first stage of a trial finds the defendantguilty of the submitted offense, the second stage of the trial shallproceed. The issue at the second stage of the trial shall be thepunishment to be assessed and declared. Evidence supporting or mitigatingpunishment may be presented. Such evidence may include, within thediscretion of the court, evidence concerning the impact of the crime uponthe victim, the victim's family and others, the nature and circumstances ofthe offense, and the history and character of the defendant. Rebuttal andsurrebuttal evidence may be presented. The state shall be the first toproceed. The court shall instruct the jury as to the range of punishmentauthorized by statute for each submitted offense. The attorneys may arguethe issue of punishment to the jury, and the state shall have the right toopen and close the argument. The jury shall assess and declare thepunishment as authorized by statute.

4. A second stage of the trial shall not proceed and the court, andnot the jury, shall assess punishment if:

(1) The defendant requests in writing, prior to voir dire, that thecourt assess the punishment in case of a finding of guilt; or

(2) The state pleads and proves the defendant is a prior offender,persistent offender, dangerous offender, or persistent misdemeanor offenderas defined in section 558.016, RSMo, a persistent sexual offender asdefined in section 558.018, RSMo, or a predatory sexual offender as definedin section 558.018, RSMo.

If the jury cannot agree on the punishment to be assessed, the court shallproceed as provided in subsection 1 of this section. If, after duedeliberation by the jury, the court finds the jury cannot agree onpunishment, then the court may instruct the jury that if it cannot agree onpunishment that the court will assess punishment.

5. If the jury returns a verdict of guilty in the first stage anddeclares a term of imprisonment in the second stage, the court shallproceed as provided in subsection 1 of this section except that any term ofimprisonment imposed cannot exceed the term declared by the jury unless theterm declared by the jury is less than the authorized lowest term for theoffense, in which event the court cannot impose a term of imprisonmentgreater than the lowest term provided for the offense.

6. If the defendant is found to be a prior offender, persistentoffender, dangerous offender or persistent misdemeanor offender as definedin section 558.016, RSMo:

(1) If he has been found guilty of an offense, the court shallproceed as provided in section 558.016, RSMo; or

(2) If he has been found guilty of a class A felony, the court mayimpose any sentence authorized for the class A felony.

7. The court shall not seek an advisory verdict from the jury incases of prior offenders, persistent offenders, dangerous offenders,persistent sexual offenders or predatory sexual offenders; if an advisoryverdict is rendered, the court shall not deem it advisory, but shallconsider it as mere surplusage.

(L. 1977 S.B. 60, A.L. 1981 H.B. 554, A.L. 1990 H.B. 974, A.L. 1996 H.B. 974, A.L. 2003 S.B. 5)

Effective 6-27-03

(1980) In capital murder prosecution, statute contained in general sentencing provision of criminal code allowing defendant to request in writing that the court assess the punishment in case of a finding of guilt by jury did not control over capital murder statute. State ex rel. Eggers v. Enright (Mo.), 609 S.W.2d 381.

(1987) Subsection 2 of this section does not apply and defendant was entitled to have jury determine punishment rather than judge where defendant was charged with felony and being a prior offender and jury returned verdict on lesser included charge that was misdemeanor. State v. Meeks, 734 S.W.2d 282 (Mo.App.W.D.).

(2005) Section authorizing separate guilt and penalty phases of non-capital trial is not unconstitutional as violation of federal due process clause or state provisions concerning separation of powers or ex post facto laws. State v. Jaco, 156 S.W.3d 775 (Mo.banc).