Section 12.39 Prosecution Motions and Pleadings

LibraryCriminal Practice 2012 Supp

W. (§12.39) Prosecution Motions and Pleadings

Some motions are particularly for the state, e.g., motions to deny, cancel, or increase bail under Rules 33.06 and 33.08. The court, on its own motion or on the motion of the prosecution, may order the re-arrest of the defendant; cancel, revoke, or require an increase in the bond or a different surety; or alter the conditions of the release. See also § 544.455.5, RSMo 2000; §12.4, supra. The state may file an application in a higher court seeking a review of the conditions of release that it feels are inadequate. Rule 33.09. The state may also file motions pertaining to failure to appear or bond forfeiture because of breach of a condition of bail or a condition of release. Rule 33.14; see also §12.4, supra. The court, on its own motion or on motion by the state, can issue a citation of contempt because of the defendant’s failure to appear, § 544.665.2, RSMo 2000, or the court can modify the conditions of release because of a violation of conditions. Rule 33.06(a)(3). No bond forfeiture is to be entered if the defendant is in custody anywhere else. Section 374.770, RSMo 2000. There must also be a motion for judgment on the bond forfeiture before the surety or defendant is liable to pay the bond forfeiture. Rule 33.14; see also State v. Anderson, 413 S.W.2d 161 (Mo. 1967).

Sections 544.457 and 544.676, RSMo 2000, and § 595.209, RSMo Supp. 2004, allow a court to consider the danger a defendant poses to a victim, the community, or any person in setting conditions of release. See §12.46 below regarding revocation or forfeiture of bail because of witness or victim tampering.

Amending an information or filing a substitute information is permitted if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. Rule 23.08; City of Kansas City v. Harbin, 600 S.W.2d 589 (Mo. App. W.D. 1980). See Chapter 4 of this deskbook; §12.3, supra. Related matters include a motion to endorse additional witnesses to the information or indictment, Rule 23.01(e), or amendments to allege prior, persistent, or dangerous offender status, which is not an additional charge. State v. Morton, 648 S.W.2d 642 (Mo. App. S.D. 1983). See:

§ 557.036.4(2), RSMo Supp. 2004;

· § 558.016, RSMo Supp. 2004;

· § 558.018, RSMo 2000 (sexual offenders);

· § 558.021, RSMo 2000;

§ 577.023, RSMo Supp. 2004 (intoxicated-related traffic
offenders);

· § 578.389, RSMo 2000 (welfare fraud offenders);

· §§ 195.275...

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