Section 28.3 Eligibility

• Library: Criminal Practice 2012 Supp

B. (§28.3) Eligibility

Section 559.120, RSMo 2000, states that a defendant is eligible for probation if the court, “having regard to the nature and circumstances of the offense and to the history and character of the defendant,” is of the opinion that: “(1) Traditional institutional confinement of the defendant is not necessary for the protection of the public, given adequate supervision; and (2) The defendant is in need of guidance, training or other assistance which, in his case, can be effectively administered through participation in a community-based treatment program.” Section 559.012, RSMo 2000, is nearly identical to § 559.120.

The following individuals may not be eligible to be placed on probation:

Those convicted of certain controlled substance offenses and certain persistent drug offenses under §§ 195.291, 195.292, 195.295, and 195.296, RSMo 2000, and §§ 195.214, 195.218, 195.222, and 195.223, RSMo Supp. 2004

Those with certain sexual offender convictions, § 558.018, RSMo 2000

Class X offenders under § 558.019, RSMo Supp. 2004

Similarly, those convicted of second degree murder and armed criminal action are statutorily excluded from consideration for probation. Section 559.115.8, RSMo Supp. 2004.

A pre-sentence investigation (PSI), unless waived by a defendant or unless the court directs otherwise, shall be made in all felony and class A misdemeanor cases before the granting of probation. Section 557.026.1, RSMo 2000; § 217.750.2, RSMo Supp. 2004; Rule 29.07(a)(1). Defendants generally waive the PSI by pleading guilty to a recommended...