Effective 01 Jan 2017, see footnote

565.079. Prior and persistent assault offenders — definitions — sentencing — procedure at trial — evidence of prior convictions, proof, how heard — sentencing. — 1. As used in this section, the following terms mean:

(1) "Assault offense", the offenses of murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter in the first degree, assault in the first degree, assault in the second degree, assault in the third degree, assault in the fourth degree, domestic assault in the first degree, domestic assault in the second degree, domestic assault in the third degree, domestic assault in the fourth degree, or an attempt to commit any of these offenses, or the commission of an offense in another jurisdiction that if committed in this state would constitute the commission of any of the listed offenses;

(2) "Persistent assault offender", a person who has been found guilty of two or more assault offenses, where such two or more offenses occurred within ten years of the occurrence of the assault offense for which the person is charged;

(3) "Prior assault offender", a person who has been found guilty of one assault offense, where such prior offense occurred within five years of the occurrence of the assault offense for which the person is charged.

2. No court shall suspend the imposition of sentence as to a prior or persistent assault offender pursuant to this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011 to the contrary notwithstanding, nor shall such person be eligible for parole or probation until such person has served a minimum of six months' imprisonment.

3. The court shall find the defendant to be a prior assault offender or persistent assault offender, if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior assault offender or persistent assault offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior assault offender or persistent assault offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior assault offender or persistent assault offender.

4. In a jury trial, such facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

5. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

6. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

7. The defendant may waive proof of the facts alleged.

8. Nothing in this section shall prevent the use of presentence investigations or commitments.

9. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.

10. The findings of guilt shall be prior to the date of commission of the present offense.

11. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict in cases of prior assault offenders or persistent assault offenders.

12. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon.

13. The court shall sentence a person who has been found to be a prior assault offender and is found guilty of a class B, C, or D felony under this chapter to the authorized term of imprisonment for the class one class step higher than the offense for which the person was found guilty.

14. The court shall sentence a person who has been found to be a persistent assault offender and is found guilty of a class C or D felony under this chapter to the authorized term of imprisonment for the class two steps higher than the offense for which the person was found guilty. A person found to be a persistent assault offender who is found guilty of a class B felony shall be sentenced to the authorized term of imprisonment for a class A felony.

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(L. 1998 H.B. 1918 §§ 1, 2, B, A.L. 2000 H.B. 1677, et al., A.L. 2009 H.B. 62, A.L. 2014 S.B. 491)

Transferred 2014; formerly 565.063; Effective 1-01-17