Offered February 27, 1996.

Senate Substitute No. 3 adopted, February 27, 1996.

Taken up for Perfection February 27, 1996. Bill declared Perfected and Ordered Printed.

TERRY L. SPIELER, Secretary.

S2378.12P

To repeal sections 557.036, 558.018 and 558.021, RSMo 1994, and sections 566.607 and 566.610, RSMo Supp. 1995, relating to sex offender sentencing, 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Section A. Sections 557.036, 558.018 and 558.021, RSMo 1994, and sections 566.607 and 566.610, RSMo Supp. 1995, are repealed and seven new sections enacted in lieu thereof, to be known as sections 557.036, 558.018, 558.021, 558.022, 558.023, 566.607 and 566.610, to read as follows:

557.036. 1. Subject to the limitation provided in subsection 3 of this section, upon a finding of guilt upon verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.

2. The court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict, unless

(1) The defendant requests in writing, prior to voir dire, that the court 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 offender as defined in section 558.016, RSMo, a persistent sexual offender as defined in section 558.018, RSMo, or a predatory sexual offender as defined in subdivision (1) or (2) of subsection 2 of section 558.023, RSMo. If the jury finds the defendant guilty but cannot agree on the punishment to be assessed, the court shall proceed as provided in subsection 1 of this section. If there be a trial by jury and the jury is to assess punishment and if after due deliberation by the jury the court finds the jury cannot agree on punishment, then the court may instruct the jury that if it cannot agree on punishment that it may return its verdict without assessing punishment and the court will assess punishment.

3. If the jury returns a verdict of guilty and declares a term of imprisonment as provided in subsection 2 of this section, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense.

4. If the defendant is found to be a prior offender, persistent offender, dangerous offender or persistent misdemeanor offender as defined in section 558.016, RSMo:

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

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

5. The court shall not seek an advisory verdict from the jury in cases of prior offenders, persistent offenders, or dangerous offenders, persistent sexual offenders or predatory sexual offenders; if an advisory verdict is rendered, the court shall not deem it advisory, but shall consider it as mere surplusage.

558.018. 1. The court shall sentence a person who has pleaded guilty to or has been found guilty of the felony of forcible rape, statutory rape in the first degree, forcible sodomy, statutory sodomy in the first degree or an attempt to commit any of the aforesaid to an extended term of imprisonment if it finds the defendant is a persistent sexual offender".

2. A persistent sexual offender" is one who has previously pleaded guilty to or has been found guilty of the felony of forcible rape, statutory rape in the first degree, forcible sodomy, statutory sodomy in the first degree or an attempt to commit any of the aforesaid.

3. [The term of imprisonment for one found to be a persistent sexual offender" shall be not less than thirty years, which term shall be served without probation or parole.] A person found to be a persistent sexual offender" shall receive a sentence of life imprisonment with eligibility for parole after serving a term of not less than thirty years in prison. In no event shall such person receive a final discharge from the board of probation and parole pursuant to section 217.730, RSMo.

558.021. 1. The court shall find the defendant to be a prior offender, persistent offender, [or] dangerous offender, persistent sexual offender, or predatory sexual 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 offender, persistent offender, [or] dangerous offender, persistent sexual offender, or predatory sexual offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, persistent offender, [or] dangerous offender, persistent sexual offender, or predatory sexual 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 offender, persistent offender, [or] dangerous offender, persistent sexual offender, or predatory sexual offender.

2. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of [their] its hearing, except the facts required by subdivision (1) of subsection 4 of section 558.016 or subdivision (3) of subsection 2 of section 558.023 may be established and found at a later time, but prior to sentencing, and may be established by judicial notice of prior testimony before the jury.

3. In a trial without a jury or upon a plea of guilty, the court may defer the proof and findings of such facts to a later time, but prior to sentencing. The facts required by subdivision (1) of subsection 4 of section 558.016 or subdivision (3) of subsection 2 of section 558.023 may be established by judicial notice of prior testimony or the plea of guilty.

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

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

6. Nothing in this section shall prevent the use of presentence investigations or commitments under sections 557.026 and 557.031, RSMo; except that, for evaluations ordered to determine whether a person is a predatory sexual offender pursuant to subdivision (3) of subsection 2 of section 558.023, the board of probation and parole shall determine the time, place and conditions under which the evaluation shall be conducted.

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

558.022. Sections 558.018 to 558.023 shall be known and may hereafter be referred to as the Elissa Self-Braun Act".

558.023. 1. Any person who has pleaded guilty to or has been found guilty of any offense listed in subdivisions (1) to (3) of this subsection and who is found to be a predatory sexual offender, as provided in subsection 2 of this section, shall receive a sentence of life imprisonment with eligibility for parole, but in no event shall such person receive a final discharge from the board of probation and parole pursuant to section 217.730, RSMo. The minimum term to be served by a predatory sexual offender, as determined by the judge pursuant to subsection 8 of this section, shall be used by the board of probation and parole to determine the person's eligibility for parole. This section shall apply to any person who violates:

(1) Section 566.030, 566.032, 566.060 or 566.062, RSMo, or attempts or conspires, as defined in chapter 564, RSMo, to violate any of these sections;

(2) Section 566.067, RSMo, when classified as a class B felony;

(3) Section 566.100, RSMo, when classified as a class B felony.

2. For purposes of this section, a predatory sexual offender" is a person who the court finds, beyond a reasonable doubt pursuant to subdivision (3) of subsection 1 of section 558.021:

(1) Has previously pleaded guilty to or has been found guilty of any sexual offense listed in subsection 1 of this section or has previously pleaded guilty to or has been found guilty, in any other state or under federal jurisdiction, of any offense which would be a violation of a sexual offense listed in subsection 1 of this section if committed in this state; or

(2) Has previously committed an act or acts which would constitute an offense listed in subsection 1 of this section; or

(3) Has a propensity to commit future acts that would constitute an offense listed in subsection 1 of this section. The court shall, prior to making its finding, order a presentence investigation pursuant to section 557.026, RSMo, and a mental evaluation of the person upon a motion by the prosecuting attorney.

3. The court shall not determine whether a person is a predatory sexual offender pursuant to subdivision (3) of subsection 2 of this section until such time as a psychiatrist determines that the person suffers from a congenital or acquired condition affecting the emotional, volitional and cognitive capacity that predisposes such person to commit any sex offense listed in subsection 1 of this section. If a psychiatrist does not determine that the person suffers from such a condition, the court shall sentence the person pursuant to other applicable provisions of law.

4. If the court orders an evaluation pursuant to subsection 3 of this section, the court shall appoint one or more psychiatrists for purposes of performing the evaluation of the person to render a single opinion as to whether the person is a predatory sexual offender. The order shall direct that a written report or reports of such evaluation be filed with the clerk of the court. The order may provide for the interviewing of witnesses and shall require that law enforcement reports and the presentence investigation report be provided to the evaluator for use in the evaluation.

5. Any evaluation performed pursuant to subsection 4 of this section shall be completed and filed with the court within sixty days from the date the presentence investigation is ordered. The clerk of the court shall deliver copies of the report or reports to the prosecuting attorney and to the person or his counsel. The report of the evaluation shall not be a public record or be open to the public.

6. If the evaluation report includes an opinion as to whether the person is a predatory sexual offender, such report may be received in evidence and no new evaluation shall be required but may be ordered by the court. Within ten days after receiving a copy of such report and upon written motion, the person and the prosecuting attorney shall each be entitled to an order granting an evaluation of the person by an evaluator of their own choosing and at their expense. All costs of subsequent evaluations shall be assessed to the party requesting the evaluation.

7. No statement made by the person and no information received by any physician in the course of any such evaluation shall be admitted in evidence against the person on the issue of whether he committed the act or acts charged against him in any subsequent criminal proceeding in any state or federal court as provided in section 552.030, RSMo. The statement or information shall be admissible in evidence, for or against the person, only on the issue of whether the person is a predatory sexual offender, but only if the person is first notified of his right to counsel and right to remain silent. If these criteria are met, such statement or information is admissible even if the statement or information would otherwise be deemed a privileged communication.

8. For purposes of determining the minimum prison term, for use by the board of probation and parole to establish the eligibility for parole for a person found to be a predatory sexual offender pursuant to subsection 2 of this section, the court, when imposing sentence, shall assess a term within the range to which the person could have been sentenced pursuant to the applicable criminal and sentencing enhancement provisions of law under which the person was convicted. In no event shall the person's term of imprisonment prior to eligibility for parole be less than the minimum term of imprisonment to which the person could have been sentenced pursuant to such criminal and sentencing enhancement provisions of law.

9. Notwithstanding the provisions of section 557.036, RSMo, the court shall instruct the jury as to the range of punishment authorized for violations of the offenses provided in subdivisions (1) to (3) of subsection 1 of this section, but shall hold in abeyance any such jury declaration of recommended sentence and not impose sentence for any such violation until the court determines whether the person is a predatory sexual offender. Upon sentencing, the court shall consider such jury declaration of recommended sentence. If the person is found to be a predatory sexual offender, such recommended sentence shall be used for purposes of imposing a minimum term of imprisonment pursuant to subsection 8 of this section. If the person is not found to be a predatory sexual offender, such recommended sentence shall be imposed pursuant to section 557.036, RSMo.

10. Notwithstanding any provision of law to the contrary, the department of corrections, or any division thereof, may not furlough an individual found to be and sentenced as a persistent sexual offender pursuant to section 558.018 or a predatory sexual offender pursuant to section 558.023.

566.607. Any registration pursuant to sections 566.600 to 566.625 shall consist of completion of an offender registration form developed by the Missouri state highway patrol. Such form shall include, but is not limited to the following:

(1) A statement in writing signed by the person, giving the name, address, social security number, phone number of the person, the place of employment of such person, the crime which requires registration, the date and place of such crime, the date and place of the conviction or plea regarding such crime, [and] the age and gender of the victim at the time of the offense and whether the person successfully completed the Missouri sexual offender program pursuant to section 589.040, RSMo, if applicable; and

(2) The fingerprints and a photograph of the person.

566.610. 1. The chief law enforcement official shall forward the completed sex offender registration form to the central repository within ten days. The patrol shall enter the information into the Missouri uniform law enforcement system (MULES) where it is available to members of the criminal justice system upon inquiry.

2. Notwithstanding any provision of law to the contrary, the chief law enforcement official, in accordance with rules promulgated by the department of public safety, shall release the information contained in the registration statement made by an offender found to be a predatory sexual offender as provided in subdivision (1) of section 566.607.