Section 27.2 Sentencing a Province of the Court

• Library: Criminal Practice 2012 Supp

B. (§27.2) Sentencing a Province of the Court

Section 557.036, RSMo Supp. 2004, details the role of the court and of the jury in sentencing a criminal defendant. Section 557.036.1 states that “the court shall determine the extent or duration of a defendant’s sentence or other disposition to be imposed” upon a finding of guilt upon a plea or verdict. The court must take into consideration the offense that is the basis for the conviction and the defendant’s background when rendering its judgment. When the defendant is considered a prior offender, a persistent offender, a dangerous offender, a persistent sexual offender, or a predatory sexual offender, the court should not seek an advisory verdict from the jury and, if one happens to be rendered, the court is not to deem it advisory but only surplusage. Section 557.036.7. In all other cases, the court may seek an advisory verdict from the jury. It is an “advisory verdict” because the jury does not assess the punishment in a criminal prosecution but only gives its recommendation on what it thinks the punishment should be. Although the Sixth Amendment to the United States Constitution gives a criminal defendant the right to a jury trial, it does not give the defendant
the right to have the punishment set by the jury. See State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992); State v. Cline, 808 S.W.2d 822
(Mo. banc 1991). The court may or may not follow the jury’s recommendation, but it cannot exceed the term declared by the jury unless the jury has made a recommendation that is lower than the statutorily authorized sentence. In that case the court cannot impose a term greater than the lowest term authorized by statute.

The defense attorney should be aware of the Missouri Sentencing Recommendations. The goal of the Recommendations is “to achieve a system of sentencing that is fair, protects the public and uses corrections resources wisely.” Introduction, Missouri Sentencing Advisory Commission, Report on Recommended Sentencing (April 2005). Information about the Commission and a copy of the April 2005 report are available at:

www.mosac.mo.gov/index.htm

Under § 558.019.6, now RSMo Supp. 2004, the Sentencing Advisory Commission was created to establish a guideline or system of recommended sentences for felony offenses that must fall within the statutory minimum and maximum sentences provided by law. The Sentencing Advisory Commission published an Advisory Sentencing Guidelines Users Manual in 1998 that contained...