Section 24.6 Punishment

• Library: Criminal Practice 2012 Supp

1. (§24.6) Punishment

Defendants with no prior felony convictions have a statutory right to jury sentencing. Section 557.036.4, RSMo Supp. 2004. But § 557.036.4(2) provides that the court can sentence the defendant if the jury has found the defendant guilty but cannot agree on punishment. MAI-CR 3d 305.07 must be given to the jury when the court has determined that the jury has deadlocked on the issue of punishment. That instruction informs the jury that it is their “primary duty and responsibility” to determine guilt or innocence and to assess punishment.

When a defendant is subject to jury sentencing, the trial is divided into two stages. Section 557.036.2. In the first stage, the jury decides whether the defendant is innocent or guilty of the charged offenses. If the defendant is found guilty, a second stage of trial commences on the question of punishment. Each side is permitted, but not required, to present evidence on the defendant’s background and character, after which the jury decides the defendant’s sentence within the statutory range. Section 557.036.3. The bifurcated trial procedure appears to apply to both felonies and misdemeanors.

The court is required by § 557.036.3 to instruct the jury as to the range of punishment for the offense and to assess and declare punishment unless the defendant, before voir dire, files a written request that the court assess punishment, or unless the state pleads and proves that the defendant is a prior, persistent, or dangerous offender under § 558.016, RSMo Supp. 2004, and the offense being submitted is a felony. State v. Meeks, 734 S.W.2d 282 (Mo. App. W.D. 1987). MAI-CR 2d 304.02 contains a submission for A, B, C, and D felonies and A, B, and C misdemeanors and infractions. For non-code offenses, punishment alternatives should be submitted in the same general format as for code offenses.

When a statute has the effect of increasing the...