632.498. Annual examination of mental condition, not required, when--annual review by the court--petition for release, hearing, procedures (when director disapproves). - Missouri Statutes

Annual examination of mental condition, not required, when--annualreview by the court--petition for release, hearing, procedures(when director disapproves).

632.498. 1. Each person committed pursuant to sections 632.480 to632.513 shall have a current examination of the person's mental conditionmade once every year by the director of the department of mental health ordesignee. The yearly report shall be provided to the court that committedthe person pursuant to sections 632.480 to 632.513. The court shallconduct an annual review of the status of the committed person. The courtshall not conduct an annual review of a person's status if he or she hasbeen conditionally released pursuant to section 632.505.

2. Nothing contained in sections 632.480 to 632.513 shall prohibitthe person from otherwise petitioning the court for release. The directorof the department of mental health shall provide the committed person whohas not been conditionally released with an annual written notice of theperson's right to petition the court for release over the director'sobjection. The notice shall contain a waiver of rights. The directorshall forward the notice and waiver form to the court with the annualreport.

3. If the committed person petitions the court for conditionalrelease over the director's objection, the petition shall be served uponthe court that committed the person, the director of the department ofmental health, the head of the facility housing the person, and theattorney general.

4. The committed person shall have a right to have an attorneyrepresent the person at the hearing but the person is not entitled to bepresent at the hearing. If the court at the hearing determines by apreponderance of the evidence that the person no longer suffers from amental abnormality that makes the person likely to engage in acts of sexualviolence if released, then the court shall set a trial on the issue.

5. The trial shall be governed by the following provisions:

(1) The committed person shall be entitled to be present and entitledto the benefit of all constitutional protections that were afforded theperson at the initial commitment proceeding;

(2) The attorney general shall represent the state and shall have aright to a jury trial and to have the committed person evaluated by apsychiatrist or psychologist not employed by the department of mentalhealth or the department of corrections. In addition, the person may beexamined by a consenting psychiatrist or psychologist of the person'schoice at the person's own expense;

(3) The burden of proof at the trial shall be upon the state to proveby clear and convincing evidence that the committed person's mentalabnormality remains such that the person is not safe to be at large and ifreleased is likely to engage in acts of sexual violence. If suchdetermination is made by a jury, the verdict must be unanimous;

(4) If the court or jury finds that the person's mental abnormalityremains such that the person is not safe to be at large and if released islikely to engage in acts of sexual violence, the person shall remain in thecustody of the department of mental health in a secure facility designatedby the director of the department of mental health. If the court or juryfinds that the person's mental abnormality has so changed that the personis not likely to commit acts of sexual violence if released, the personshall be conditionally released as provided in section 632.505.

(L. 1998 H.B. 1405, et al. § 7, A.L. 2004 S.B. 1211, A.L. 2006 H.B. 1698, et al.)

Effective 6-05-06

(2007) Increased burden by sexually violent predator in first step of two-trial discharge procedure to prove propriety of release by preponderance of the evidence is not violation of either due process or equal protection. In re Care and Treatment of Coffman, 225 S.W.3d 439 (Mo.banc).