Section 6.2 Initiation of Felony Proceedings

• Library: Criminal Practice 2012 Supp

B. (§6.2) Initiation of Felony Proceedings

Felony prosecutions are instituted either by filing a complaint in the associate circuit division or by presenting a case directly to the grand jury for purposes of obtaining an indictment. Rules 22, 23; § 544.020, RSMo Supp. 2004; Chapter 545, RSMo. In either event, probable cause must be established before a defendant charged with a felony offense can be brought to trial in the circuit division. If indicted by a grand jury, a defendant is not entitled to a preliminary hearing because probable cause will have been determined by the grand jury, and a defendant does not have a right to choose the method of determination of probable cause. State v. McGee, 757 S.W.2d 321 (Mo. App. W.D. 1988).

A prosecutor may take a case to the grand jury at any time, even after filing the complaint in the associate circuit division. A prosecutor who files the complaint and intends to bring the offense charged before the grand jury for indictment must do so after the arraignment is held on the complaint in the associate circuit division. It is unclear whether there are any time limits within which the prosecutor must elect to present the complaint before the grand jury or have a preliminary hearing conducted before the court. It has been held that due process rights were not violated by a delay of almost 20 months between the date of the alleged offense and the date of an indictment. State v. Thomas, 529 S.W.2d 379 (Mo. 1975). Whether due process rights have been violated by a lapse of time between the offense and the arrest based on a grand jury indictment will be resolved on a case-by-case basis. United States v. Marion, 404 U.S. 307 (1971). In Thomas the delay was caused by the fact that the defendant was not arrested for almost a year after the original warrant was issued on the complaint, and the case was further delayed some five months before a preliminary hearing was held. Thomas was discharged for want of probable cause following the preliminary hearing. About a month later, the state obtained a grand jury indictment, and almost two months after that Thomas was arrested in accordance with the indictment. What is clear from Thomas is that, unless the defendant can show that the delay was caused by the state and the delay resulted in actual prejudice to the defendant, the indictment and subsequent conviction will not be overturned.

In urban areas of Missouri, the prosecuting...