Opinion
December 23, 2003
In re:
(1) Repeal of subdivision 25.12, entitled "Misdemeanors or Felonies — Deposition by Defendant — How Taken," subdivision 25.13, entitled "Misdemeanors or Felonies — Deposition by Defendant — When Admissible," subdivision 25.14, entitled "Misdemeanors or Felonies — Deposition by State — When and How Taken," subdivision 25.15, entitled "Misdemeanors or Felonies — Deposition Offered by State — When Admissible," and subdivision 25.16, entitled "Misdemeanors or Felonies — Sanctions," of Rule 25, entitled "Misdemeanors or Felonies — Disclosure and Depositions," and in lieu thereof adoption of a new subdivision 25.12, entitled "Misdemeanors or Felonies — Deposition by Defendant — How Taken," a new subdivision 25.13, entitled "Misdemeanors or Felonies — Deposition Offered by Defendant — When Admissible," a new subdivision 25.14, entitled "Misdemeanors or Felonies — Depositions by State to Preserve Testimony — When And How Taken, a new subdivision 25.15, entitled "Misdemeanors Or Felonies — Discovery Depositions By State — When And How Taken," a new subdivision 25.16, entitled "Misdemeanors or Felonies — Deposition Offered by State — When Admissible," a new subdivision 25.17, entitled "Misdemeanors or Felonies — Costs of Depositions," and a new subdivision 25.18, entitled "Misdemeanors or Felonies — Sanctions."
(2) Repeal of subdivision 30.04(g), entitled "Certification of the Record on Appeal, and subdivision 30.26, entitled "Motions for Rehearing," of Rule 30, entitled "Appellate Procedure in All Criminal Cases," and in lieu thereof adoption of a new subdivision 30.04(g), entitled "Certification of the Record on Appeal," and a new subdivision 30.26, entitled "Post-dispositions Motions."
(3) Repeal of Rule 37, entitled "Statutory and Ordinance Violations and Violation Bureaus," consisting of subdivisions 37.01 to 37.75, inclusive, and in lieu thereof adoption of a new Rule 37, entitled "Ordinance Violations," consisting of subdivisions 37.01 to 37.75, inclusive.
(4) Repeal of Rule 38, entitled "Certain Statutory Violations and Violations Bureaus," consisting of subdivisions 38.01 to 38.15, inclusive, and in lieu thereof adoption of a new Rule 38, entitled "Certain Statutory Violations and Violations Bureaus," consisting of subdivisions 38.01 to 38.14, inclusive.
(5) Correction of subdivision 81.04 of Rule 81.
(6) Correction of subdivision 84.06(h) of Rule 84.
ORDER Effective July 1, 2004
1. It is ordered that effective July 1, 2004, subdivisions 25.12, 25.13, 25.14, 25.15, and 25.16 of Rule 25 be and the same are hereby repealed and a new subdivision 25.12, a new subdivision 25.13, a new subdivision 25.14, a new subdivision 25.15, a new subdivision 25.16, a new subdivision 25.17, and a new subdivision 25.18 adopted in lieu thereof to read as follows:
25.12 MISDEMEANORS OR FELONIES — DEPOSITION BY DEFENDANT — HOW TAKEN
(a) In General. A defendant in any criminal case pending in any court may obtain the deposition of any person on oral examination or written questions. The manner of taking such depositions shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in such other location as is agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where such person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. The defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown in the manner provided for in Rule 25.14. In addition, upon motion of the defense, the court may order the physical presence of the defendant upon a showing of good cause.
The court should consider:
(1) The need for the physical presence of the defendant to obtain effective discovery;
(2) The effect of the defendant's presence on the witness, if any; and
(3) Any available use of screening or alternative methods of taping or recording that would allow the defendant limited observation of the witness and the ability to confer with counsel.
(d) Experts. The defense may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.
25.13 MISDEMEANORS OR FELONIES — DEPOSITION OFFERED BY DEFENDANT — WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 and 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by defendant if it appears that the witness:
(a) Is dead,
(b) Is out of the state, unless it appears that the absence of the witness was procured by defendant,
(c) Is unable to attend or testify because of sickness or infirmity,
(d) Is a judge of a court of record or a practicing attorney or physician, and engaged in the discharge of an official or professional duty at the time of trial,
(e) Has invoked a testimonial privilege or other refusal to testify not produced by the action of the defendant, or
(f) Is otherwise unavailable and the defendant has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
The facts that would authorize the use of any deposition may be established by the testimony of the deposing witness or by the certificate of the officer before whom the deposition is taken.
25.14 MISDEMEANORS OR FELONIES — DEPOSITIONS BY STATE TO PRESERVE TESTIMONY — WHEN AND HOW TAKEN
A prosecuting attorney may file a motion in a pending case to take the deposition of a witness to preserve testimony. The motion shall not seek the deposition of the defendant or the spouse of the defendant.
The court shall order the deposition if it finds, after a hearing, that the deposition is necessary to preserve testimony.
The order shall require the defendant to attend the deposition or to personally waive the right to be present and the right of confrontation in writing or in open court. The order shall contain provisions necessary to fully protect the defendant's rights of personal confrontation and cross-examination of the witness.
The court shall direct that the deposition be taken in the county where the offense occurred or at another location designated by the court.
A deposition taken pursuant to this Rule 25.14 may be used by either party at trial, subject to Rules 25.13 and 25.16.
The officer before whom the deposition is to be taken shall have authority to issue a subpoena requiring the attendance of the witness at the deposition in the same manner as is provided with respect to the attendance of witnesses at the trial of a criminal case.
The reasonable personal and traveling expenses of defendant and counsel shall be taxed as costs.
25.15 MISDEMEANORS OR FELONIES — DISCOVERY DEPOSITIONS BY STATE — WHEN AND HOW TAKEN
(a) In general. A prosecuting attorney in any criminal case pending in any court may obtain the deposition of any person on oral examination. The manner of taking such depositions shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in such other location as is agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where such person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. The defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown in the manner provided for in Rule 25.14.
(d) Experts. The prosecution may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.
25.16 MISDEMEANORS OR FELONIES — DEPOSITION OFFERED BY STATE — WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 or 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by the state if:
(a) The defendant:
(1) Was personally present at the deposition and had the right of confrontation and cross-examination at the deposition, or
(2) Personally waived that right to be present and the right of confrontation in writing or in open court, or
(3) Failed to attend the deposition after the court ordered the defendant to do so; and
(b) The witness is unavailable in that the witness:
(1) Is dead,
(2) Is unable to attend or testify because of sickness or infirmity,
(3) Has invoked a testimonial privilege or other refusal to testify not produced by the action of the state, or
(4) Is otherwise unavailable and the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
25.17 MISDEMEANORS OR FELONIES — COSTS OF DEPOSITIONS
The deposition costs shall be certified by the person before whom the deposition is taken and shall be taxed as court costs as provided by law.
25.18 MISDEMEANORS OR FELONIES — SANCTIONS
If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.
2. It is ordered that effective July 1, 2004, subdivision 30.04(g) and subdivision 30.26 of Rule 30 be and the same are hereby repealed and a new subdivision 30.04(g) and a new subdivision 30.26 adopted in lieu thereof to read as follows:
30.04 RECORD ON APPEAL — CONTENTS — DESIGNATION — COMPILING, ORDERING, FILING AND SERVICE — ERRORS, OMISSIONS AND SUPPLEMENTAL RECORD
* * *
(g) Certification of the Record on Appeal. The transcript shall be certified by the court reporter as a true and accurate reproduction of the proceedings transcribed. If the trial proceedings are recorded by means of an electronic sound recording, the transcript thereof shall be certified by the transcriber as a true and accurate reproduction of the sound recording.
The legal file shall be certified by the clerk of the trial court to consist of true copies of portions of the trial record, proceedings, and evidence previously reduced to writing and filed in the trial court.
If the parties agree in writing as part of the record on appeal that either the legal file or the transcript is true and accurate, certification of that part of the record on appeal shall not be required.
If there is any dispute concerning the correctness of any legal file or transcript, or if the parties fail to agree within a reasonable time as to its correctness, the legal file or transcript shall be settled and approved by the trial court.
30.26 POST-DISPOSITION MOTIONS
Rule 84.17 shall govern post-disposition motions in criminal cases.
3. It is ordered that effective July 1, 2004, Rule 37, consisting of subdivisions 37.01 to 37.75, inclusive, be and the same is hereby repealed and a new Rule 37, consisting of subdivisions 37.01 to 37.75, inclusive, adopted in lieu thereof to read as follows:
RULE 37 ORDINANCE VIOLATIONS
37.01 RULES — WHEN APPLICABLE
Rule 37 governs the procedure in all courts of this state having original jurisdiction of ordinance violations and the disposition of any such violation in a violation bureau.
37.02 RULES — AUTHORITY FOR — STATUTES AND ORDINANCES SUPERSEDED
Rule 37 is promulgated pursuant to authority granted this Court by article V, section 5 of the Missouri Constitution and supersedes all statutes, ordinances and court rules inconsistent therewith.
37.03 RULES — CONSTRUCTION
Rule 37 shall be construed to secure the just, speedy and inexpensive determination of ordinance violations.
37.04 SUPERVISION OF COURTS HEARING ORDINANCE VIOLATIONS
The presiding judge of the circuit shall have general administrative authority over the judges and court personnel of all divisions of the circuit court hearing and determining ordinance violations within the circuit. The judges of all such divisions shall be subject to the rules of the circuit court that are not inconsistent with this Rule 37.
37.05 LOCAL CIRCUIT COURT RULES — PUBLICATION AND DISTRIBUTION
The circuit courts may make rules governing the disposition of ordinance violations if the rules are not inconsistent with the rules of this Court or the Constitution. Upon promulgation, copies of such rules shall be filed with the clerk of this Court. The clerk of each court shall from time to time compile all of the current rules and maintain copies.
37.06 DEFINITIONS
Whenever in this Rule 37 the following terms are used, they mean the following:
(a) "Animal control violation," any violation of an ordinance relating to the care or control of any animal;
(b) "Clerk," any duly appointed court clerk or court administrator or any deputy or division court clerk serving courts to which this Rule 37 applies;
(c) "Corrections official," a person in control of a detention facility;
(d) "County," includes the City of St. Louis;
(e) "Court," a division of the circuit court having jurisdiction to hear ordinance violations;
(f) "Detention facility," any jail, workhouse, lockup or other facility normally operated to hold sentenced offenders or that is used to confine adults awaiting trial;
(g) "Housing violation," any violation of an ordinance relating to the condition or maintenance of residential buildings and residential real property;
(h) "Law," includes constitutions, statutes, ordinances, judicial decisions and this Rule 37;
(i) "Municipal division," any division of the circuit court presided over by a judge having original jurisdiction to hear and determine municipal ordinance violations;
(j) "Municipality," includes all charter, first, second, third and fourth class cities, towns and villages;
(k) "Ordinance," a law enacted by a municipality or county;
(l) "Peace Officer," includes police officers, members of the state highway patrol, sheriffs, marshals, constables, and their deputies;
(m) "Person," includes corporations;
(n) "Prosecutor," any attorney or counselor who represents any county, city, town, or village in the prosecution of a person for a violation of an ordinance;
(o) "Traffic violation," any violation of an ordinance relating to the control of traffic;
(p) "Violation," any ordinance violation within the jurisdiction of any court to which this Rule 37 applies.
37.07 PLEADINGS AND PAPERS — SIZE
All pleadings and other papers, except exhibits, offered for filing in any court and all forms used in any court, including opinions, shall be on paper of a size not larger that 8 1/2 x 11 inches. An exhibit may be on paper larger than size 8 1/2 x 11 inches. The use of recycled paper is acceptable and encouraged.
37.08 RULES — WHEN NOT APPLICABLE — PROCEDURE
If no procedure is specially provided by this Rule 37, the court shall be governed by Rules 19 to 36, inclusive, to the extent not inconsistent with this Rule 37.
37.09 TIME — COMPUTATION OF — ENLARGEMENT
(a) Computation. In computing any period of time prescribed or allowed by this Rule 37, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day that is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(b) Enlargement. When by this Rule 37 or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:
(1) With or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or
(2) Upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but the court may not enlarge the period for filing an application for trial de novo.
(c) Additional Time After Service by Mail. When a party has the right or is required to do some act or take some action within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served by mail, three days shall be added to the prescribed period.
37.10 COURTS ALWAYS OPEN — MOTIONS, APPLICATIONS GRANTABLE BY CLERK
(a) Court Always Open for Certain Purposes. The court shall be deemed always open for the purpose of filing proper papers, the issuance and return of process, and for the making of motions, applications and orders.
(b) Motions and Proceedings Grantable by Clerk. All motions and applications filed in the clerk's office for issuing process, for issuing final process to enforce judgments and for other proceedings that do not require an order of the court are grantable by the clerk; but such action by the clerk may be suspended, altered or rescinded by the judge upon cause shown.
37.11 WRITS — PROCESS — RETURN
Every officer to whom any writ of process or order shall be directed and delivered for service under this Rule 37 shall make return thereof in writing, showing the time, place, and manner of service thereof, and shall sign such return and file the same with the clerk.
37.12 [RESERVED]
37.13 COUNSEL — RIGHT TO CONSULT
Every person arrested and held in custody by any peace officer in any detention facility, police station, or any other place, upon or without a warrant or other process for the alleged commission of an ordinance violation, or upon suspicion thereof, shall promptly, upon request, be permitted to consult with counsel or other persons and, for such purpose, to use a telephone.
37.14 RULES OF EVIDENCE INAPPLICABLE
Proceedings under Rules 37.14 to 37.32 shall be informal, and technical rules of evidence need not apply.
37.15 RIGHT TO RELEASE — CONDITIONS
(a) Any person arrested for an ordinance violation shall be entitled to be released from custody pending trial. The person is also entitled to be released pending trial de novo, review and appeal. As each court enters a judgment, it shall review the conditions of release and may modify them as provided in Rule 37.19.
(b) If an arresting officer has not released a person, the court shall order the person released upon the person's written promise to appear unless the court finds:
(1) The promise alone is not sufficient reasonably to assure the appearance of the person; or
(2) The person poses a danger to a crime victim, the community or any other person.
(c) If the court determines that the imposition of conditions will assure that the defendant is reasonably likely to appear and will not pose a danger to a crime victim, the community or any other person, the court shall impose conditions for the release of the person. The appropriate conditions shall include one or more of the following:
(1) Place the person in the custody of a designated person or organization agreeing to supervise the person;
(2) Place restrictions on the travel, association, or place of abode of the person during the period of release;
(3) Require the execution of a bond in a stated amount with sufficient solvent sureties, or the deposit in the registry of the court of the sum in cash or negotiable bonds of the United States or the State of Missouri or any political subdivision thereof;
(4) Require the person to report regularly to some officer of the court or peace officer in such manner as the court directs;
(5) Require the execution of a bond in a stated amount and the deposit in the registry of the court of ten percent, or such lesser sum as the court directs, of such sum in cash or negotiable bonds of the United States or the State of Missouri or any political subdivision thereof;
(6) Impose any other conditions deemed reasonably necessary, including a condition requiring that the person return to custody after specified hours.
(d) In determining which conditions of release will reasonably assure appearance, the court shall, on the basis of available information, take into account the nature and circumstances of the violation, the weight of the evidence against the person, the person's family ties, employment, financial resources, character, mental condition, the length of the person's residence in the community, the person's record of convictions, and record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings.
(e) A court releasing a person under Rule 37.15 shall enter an order stating the conditions imposed. The court shall inform such person of the conditions imposed and of the penalties applicable to violations of the conditions of release and shall advise that a warrant for arrest will be issued immediately upon any such violation.
37.16 OFFICIALS AUTHORIZED TO SET CONDITIONS OF RELEASE — CONDITIONS TO BE STATED ON WARRANT
(a) The court issuing a warrant for the arrest of any accused shall set the conditions for release of the accused. The conditions of release shall be stated on the warrant of arrest. The court shall impose one of the following conditions:
(1) The written promise of the accused to appear; or
(2) The execution of a bond in a stated amount pursuant to Rule 37.15(c)(3); or
(3) The execution of a bond in a stated amount pursuant to Rule 37.15(c)(5).
The court may impose additional conditions for release as provided in Rule 37.15(c).
(b) If the arrest of the accused upon warrant occurs in a county other than that in which the ordinance violation occurred, the peace officer making the arrest shall promptly release the accused in accordance with the release conditions or bail prescribed on the warrant; but if none, the peace officer shall take the accused before the court in such county having jurisdiction of ordinance violations, to admit the accused to bail in such sum as the court may determine will likely ensure appearance of the accused. Bail, if taken by the peace officer making the arrest or if taken by a judge in such county, shall be promptly forwarded to the court from which the warrant was issued.
37.17 ARREST WITHOUT WARRANT
When an arrest is made without a warrant, the peace officer may accept bond in accordance with a bail schedule furnished by the court having jurisdiction.
37.18 OFFICER AUTHORIZED TO ACCEPT CONDITIONS OF RELEASE
The court that sets the conditions for release, or clerk or peace officer when authorized, may accept the conditions for release and release the accused.
37.19 MODIFICATION OF CONDITIONS OF RELEASE
(a) Upon motion by the prosecutor or by the accused, or upon the court's own motion, the court in which the proceeding is pending may modify the requirements for release after notice to the parties and hearing when the court finds that:
(1) New, different, or additional requirements for release are necessary;
(2) The conditions for release that have been set are excessive;
(3) The accused has failed to comply with or has violated the conditions for the accused's release; or
(4) The accused has been convicted of the ordinance violation charged.
(b) When the court increases the requirements for release or new requirements are set, the accused shall be remanded to the custody of the corrections official until compliance with the modified conditions. If the accused is not in custody, the court may order that a warrant for the arrest of the accused be issued.
37.20 RIGHT TO REVIEW OF CONDITIONS
An accused for whom conditions for release are imposed and who after 24 hours from the time of the release hearing continues to be detained on charges as a result of the accused's inability to meet the conditions for release shall, upon application, be entitled to have the conditions reviewed by the court that imposed them. The application shall be determined promptly.
37.21 RE-ARREST OF ACCUSED
The court may order the arrest of an accused who has been released if it shall appear to the court that:
(a) There has been a breach of any condition for the release; or
(b) The bail should be increased or new or additional security be required or new conditions for release be imposed.
The accused, upon application, shall be entitled to a hearing concerning the reasons for the issuance of the order.
37.22 FAILURE TO SET CONDITIONS OR SETTING OF EXCESSIVE CONDITIONS FOR RELEASE — APPLICATION TO HIGHER COURT
(a) If a court shall fail to set conditions for release or shall set inadequate or excessive conditions, an application may be filed in a higher court by the accused or by the prosecutor stating the grounds for the application and the relief sought. A copy of the application and the notice of the time when it will be presented to the court shall be served on all parties.
(b) If the higher court finds that the accused is entitled to be released and no conditions therefor have been set or that the conditions are excessive or inadequate, the court shall make an order setting or modifying conditions for the release of the accused.
(c) At the time of complying with the conditions of release set by the higher court, the accused shall file with the clerk a signed and acknowledged written instrument in which the accused shall specify the post office address to which all notices in connection with the case thereafter may be mailed. Proof of mailing notice to the accused at that address shall constitute sufficient notice to the accused in all cases where notice is required under this Rule 37.
37.23 TRANSMITTAL OF RECORD BY CLERK OF THE RELEASING COURT
When any person is released by a court other than the court in which the person is to appear, the clerk of the releasing court shall transmit a record of the release, together with any conditions imposed, to the clerk of the court in which the person released is required to appear.
37.24 BONDS — WHERE FILED — CERTIFICATION BY PEACE OFFICER — CASH BONDS
The clerk of the court in which the accused is required to appear shall file all bonds. All bonds taken by a peace officer shall be certified by such officer and transmitted forthwith to the clerk of the court in which the accused is required to appear. When cash or securities specified in Rule 37.15 are taken they shall be delivered forthwith to the clerk of the court in which the accused is required to appear and deposited in the registry of the court.
37.25 SURRENDER OF PRINCIPAL BY SURETY
Whenever the surety upon any bond shall desire to surrender the principal, the surety may procure from the clerk a certified copy of said bond, by virtue of which such surety, or any person authorized by the surety, may take the principal into custody. If a bond is forfeited for the failure of the principal to appear as required by the bond and the surety produces the principal prior to the rendition of judgment upon the forfeiture and the surety pays all costs and expenses caused by the principal's failure to appear, the surety is discharged from further liability. When surrendering the principal to the peace officer, the surety must deliver a certified copy of the bond and the peace officer shall take the principal into custody and acknowledge acceptance of the principal in writing. Any principal so surrendered may be conditionally released pursuant to Rule 37.15.
37.26 BONDS — FORFEITURE — PROCEDURAL NOTICE — JUDGMENT — SETTING ASIDE FORFEITURE
If there is a breach of a condition of a bond, the court in which the case is pending may declare a forfeiture of the bond. The court may direct that a forfeiture be set aside upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. When a forfeiture has not been set aside, the court on the prosecutor's motion may enter a judgment of default and execution may issue thereon.
By entering into a bond the obligors submit to the jurisdiction of the court in which the defendant is required to appear and irrevocably appoint the clerk as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on the prosecutor's motion without the necessity of an independent action. The motion and notice of the hearing as the court prescribes may be served on the clerk, who shall forthwith mail a copy to each of the obligors.
37.27 BOND — RELEASE OF OBLIGORS
When the conditions of the bond have been satisfied the court shall release the obligors. When a forfeiture of the bond is set aside, the court may release the obligors. Any surety may be released upon depositing cash in the amount of the bond or by a timely surrender of the defendant.
37.28 NOTICE OF CHANGE OF ADDRESS
Any defendant who has been released pending further proceedings and any surety for such defendant shall give written notice to the clerk of the court in which the case is pending of any change of address.
37.29 BONDS — SURETY, INDIVIDUAL — QUALIFICATIONS
A person shall not be accepted as a surety on any bail bond unless the person:
(a) Is reputable, at least twenty-one years of age and a resident of the State of Missouri;
(b) Has net assets with a value in excess of exemptions at least equal to the amount of the bond that are subject to execution in the State of Missouri;
(c) Has not been convicted of any felony under the laws of any state or of the United States;
(d) Has no outstanding forfeiture or unsatisfied judgment thereon entered upon any bail bond in any court of this state or of the United States.
A lawyer, or an elected or appointed official or employee of the State of Missouri or any county or other political subdivision thereof shall not be accepted as a surety on any bail bond, except that, this disqualification shall not apply if the principal is the spouse, child or family member of the surety.
If there is more than one surety, the aggregate net worth of the sureties in excess of exemptions shall be at least equal to the amount of the bond.
37.30 COMPENSATED SURETY — AFFIDAVIT OF JUSTIFICATION — ADDITIONAL INVESTIGATION — APPROVAL
Each surety who shall charge or receive compensation for signing a bond shall specify by affidavit that the surety possesses the qualifications specified in Rule 37.29. The surety shall execute a separate affidavit to establish the surety's qualifications for each bond the surety proposes to execute.
If the surety has on file an affidavit relating to all bonds in force on the first day of the then current calendar month, the separate affidavit as to other bonds executed during such calendar month may be limited to the requirements of Rule 37.30(e) and appropriate reference shall be made therein to the separate affidavit of qualification currently relied upon to establish the surety's qualifications. The judge, clerk or officer who is authorized to take and approve the bond shall administer the oath to such affidavit. The affidavit shall be on a suitable form, which shall be provided. In addition to the matters specified in Rule 37.29, it shall contain:
(a) An accurate legal description of the real estate that the surety proposes to justify as to the surety's sufficiency, together with a description of the improvements located thereon, and the location of the property by street address if it is located in a city or town;
(b) The latest assessed value of such property;
(c) An accurate description of the personal property that the surety proposes to justify as to the surety's sufficiency and a statement of its reasonable market value;
(d) A list of all bail bonds upon which the surety is surety and upon which the surety's obligation remains undischarged, the amount of each bond, the name of the principal or defendant, the ordinance violation charged, and the court in which such bond is pending; and
(e) A statement whether or not the surety or anyone for the surety's use has been promised or has received any consideration or security for suretyship, and if so, the nature and amount thereof, and the name of the person by whom such promise was made or from whom such security or consideration was received.
The judge, clerk, or officer to whom such affidavit of justification is submitted may make such additional investigation concerning the qualifications of the surety as thought to be necessary and, for this purpose, shall have authority to administer all necessary oaths.
No bond shall be approved unless the surety thereon appears to be qualified under the requirements of Rule 37.14 to 37.32, inclusive.
37.31 BONDS — AFFIDAVIT OF JUSTIFICATION — RECORD
When a surety is accepted upon a bond, the surety shall execute an affidavit of justification that shall be attached to the bond and filed therewith by the clerk of the court in accordance with the provisions of Rule 37.24. A duplicate copy of such affidavit shall be preserved in a separate file in the office of the clerk of the court in which such bond is first filed, indexed alphabetically by the names of the sureties. Such file shall be open to the inspection of any interested person.
37.32 BOND — SURETY COMPANY AND AGENT — QUALIFICATIONS
(a) Any corporation qualified under the provisions of section 379.010, RSMo, including the requirement that it produce evidence of its solvency satisfactory to the court, shall be qualified to act as a surety upon any bail bond taken under the provisions of this Rule 37. Any such bond shall be executed by a surety company in the manner provided by law.
(b) An agent acting on behalf of such a corporation shall be subject to the qualifications set forth in Rule 37.29(a), (c), and (d) and, in addition, shall be licensed as a bail bond agent as required by law.
37.33 VIOLATION NOTICE — CONTENTS
(a) A violation notice shall be in writing and shall:
(1) State the name and address of the court;
(2) State the name of the prosecuting county or municipality;
(3) State the name of the accused or, if not known, designate the accused by any name or description by which the accused can be identified with reasonable certainty;
(4) State the date and place of the ordinance violation as definitely as can be done;
(5) State the facts that support a finding of probable cause to believe the ordinance violation was committed and that the accused committed it;
(6) State that the facts contained therein are true;
(7) Be signed and on a form bearing notice that false statements made therein are punishable by law;
(8) Cite the chapter and section of the ordinance alleged to have been violated and the chapter and section that fixes the penalty or punishment; and
(9) State other legal penalties prescribed by law may be imposed for failure to appear and dispose of the violation.
(b) When a violation has been designated by the court to be within the authority of a violation bureau pursuant to Rule 37.49, the accused shall also be provided the following information:
(1) The specified fine and costs for the violation; and
(2) That a person must respond to the violation notice by:
(A) Paying the specified fine and court costs; or
(B) Pleading not guilty and appearing at trial.
(c) The violation notice shall be substantially in the form of the Uniform Citation set out in Form 37.A, with such additions as may be necessary to adapt the Uniform Citation to the jurisdiction involved.
37.34 ORDINANCE VIOLATIONS — INFORMATION
All ordinance violations shall be prosecuted by information. An information charging the commission of an ordinance violation may be based on the prosecutor's information and belief that the ordinance violation was committed. The information shall be supported by a violation notice as prescribed by Rule 37.33.
37.35 INFORMATION — FORM OF — CONTENTS
(a) The information shall be in writing, signed by the prosecutor and filed in the court having jurisdiction of the ordinance violation.
(b) The information shall:
(1) State the name of the defendant or, if not known, designate the defendant by any name or description by which the defendant can be identified with reasonable certainty;
(2) State plainly, concisely, and definitely the essential facts constituting the ordinance violation charged, including facts necessary for any enhanced punishment;
(3) State the date and place of the ordinance violation charged as definitely as can be done;
(4) Cite the chapter and section of the ordinance alleged to have been violated and the chapter and section providing the penalty or punishment.
37.36 INFORMATION — JOINDER OF VIOLATIONS
All ordinance violations that are of the same or similar character or based on the same act or on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same information in separate counts.
37.37 INFORMATION — JOINDER OF DEFENDANTS
Two or more defendants may be charged in the same information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an ordinance violation or violations. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.
37.38 INFORMATION — INCORRECT NAME OF DEFENDANT
Any defendant charged in an information under an incorrect name may furnish the defendant's correct name, and the correct name shall be substituted in the information. The defendant's failure to furnish the correct name shall not invalidate the proceedings.
37.39 INFORMATION — AMENDMENT — DELAY
Any information charging an ordinance violation may be amended at any time before verdict or finding if:
(a) No additional or different ordinance violation is charged, and
(b) A defendant's substantial rights are not thereby prejudiced.
No such amendment shall cause delay of a trial unless the court finds that a defendant needs further time to prepare a defense by reason of such amendment.
37.40 INFORMATION — UNAVAILABILITY OF ORIGINAL
If the original information is unavailable for any reason, a copy, certified by the clerk or by the prosecutor, may be substituted.
37.41 INFORMATION — NONPREJUDICIAL DEFECTS
An information shall not be invalid, nor shall the trial, judgment, or other proceedings on the information be stayed, because of any defect that does not prejudice the substantial rights of the defendant.
37.42 SUMMONS — CONTENT
The summons shall:
(a) Be in writing and in the name of the prosecuting county or municipality;
(b) State the name of the person summoned and the address, if known;
(c) Describe the ordinance violation charged;
(d) Be signed by a judge or by a clerk of the court when directed by a judge; and
(e) Command the person to appear before the court at a stated time and place in response thereto.
37.43 ORDINANCE VIOLATION — SUMMONS OR ARREST WARRANT — WHEN ISSUED — FAILURE TO APPEAR
When an information charging the commission of an ordinance violation is filed pursuant to Rule 37.34, a summons shall be issued unless the court finds that there are:
(a) Sufficient facts stated to show probable cause that an ordinance violation has been committed, and
(b) Reasonable grounds for the court to believe that the defendant will not appear upon the summons, or a showing has been made to the court that the accused poses a danger to a crime victim, the community, or any other person.
If the court so finds, a warrant for the arrest of the defendant may be issued.
37.44 SUMMONS — SERVICE AND RETURN
A summons may be served by:
(a) The clerk mailing it to defendant's last known address by first class mail; or
(b) An officer in the manner provided by Rule 54.13 or Rule 54.14.
If the defendant fails to appear in response to a summons and upon a finding of probable cause that an ordinance violation has been committed, the court may issue an arrest warrant.
37.45 WARRANT OF ARREST — CONTENTS
(a) The warrant of arrest shall be in writing and issued in the name of the prosecuting county or municipality. It may be directed to any peace officer in the state.
(b) The warrant shall:
(1) Contain the name of the person to be arrested or, if not known, any name or description by which the defendant can be identified with reasonable certainty;
(2) Describe the ordinance violation charged in the information;
(3) State the date when issued and the jurisdiction where issued;
(4) Command that the defendant named or described therein be arrested and brought forthwith before the court designated in the warrant;
(5) Specify the conditions of release; and
(6) Be signed by a judge or by a clerk of the court when directed by the judge for a specific warrant.
37.46 WARRANT OF ARREST — SERVICE
All warrants ordered for an ordinance violation may be directed to any peace officer in the state.
The warrant shall be executed by the arrest of the defendant.
A warrant may be executed anywhere in the state by any peace officer.
The peace officer need not possess the warrant at the time of the arrest, but upon request the officer shall show the warrant to the defendant as soon as possible. If the peace officer does not possess the warrant at the time of the arrest, the officer shall inform the defendant of the ordinance violation charged and the fact that a warrant has been issued.
37.47 INITIAL PROCEEDINGS BEFORE A JUDGE
(a) Appearance Under Warrant Before Judge. A person arrested under a warrant for an ordinance violation who does not satisfy conditions for release shall be brought as soon as practicable before a judge of the court from which the warrant was issued. The warrant, with proper return thereon, shall be filed with the court.
(b) Statement of Judge. Upon the defendant's initial appearance, the judge shall inform the defendant of:
(1) The ordinance violation charged,
(2) The right to retain counsel,
(3) The right to request the appointment of counsel if:
(A) The defendant is indigent and unable to employ counsel, and
(B) There is a possibility of a jail sentence, and
(4) The right to remain silent.
The judge shall also inform the defendant that any statement made by the defendant may be used against the defendant.
37.48 ARRAIGNMENT
Arraignment shall be conducted in open court and shall consist of reading the information to the defendant or stating the substance of the charge and calling on the defendant to plead thereto. Defendant shall be afforded a reasonable time to examine the charge before defendant is called upon to plead.
37.49 VIOLATION BUREAU — VIOLATIONS CLERK — SCHEDULE OF FINES — PAYMENT
(a) Any judge having original jurisdiction of any animal control violation, housing violation, or traffic violation may establish by court order a violation bureau, which shall be subject to the supervision of the circuit court.
(b) The judge shall designate a clerk. The clerk shall perform the duties designated by the court, including accepting appearance, waiver of trial, plea of guilty, and payment of fine and costs for the designated violations, entering the plea on the record, and transmitting the violation record as required by law, subject to the limitations hereinafter prescribed.
(c) The violations within the authority of the bureau shall be designated by order of the judge. Such designated violations may be amended from time to time but shall in no event include the following:
(1) Any violation resulting in personal injury or property damage;
(2) Operating a motor vehicle while intoxicated or under the influence of intoxicants or drugs;
(3) Operating a vehicle with a counterfeited, altered, suspended, or revoked license;
(4) Fleeing or attempting to elude an officer; and
(5) Any other violation excluded by law.
(d) The judge, by order prominently posted at the place where the fines are to be paid, shall specify by schedule the amount of fines and costs to be imposed for each violation.
(e) Within the time fixed by the judge and subject to the judge's order, any person charged with an animal control, housing, or traffic violation, except violations requiring court appearance, may deliver by mail, automatic teller machine, or as otherwise directed the specified amount of the fine and costs to the bureau. This delivery constitutes a guilty plea and waiver of trial.
37.50 RIGHT TO COUNSEL — APPOINTMENT OF COUNSEL
In a prosecution for an ordinance violation, the defendant shall have the right to appear and defend in person and by counsel.
If any person charged with an ordinance violation, whose conviction would possibly result in confinement, shall be without counsel upon a first appearance before a judge, it shall be the duty of the judge to advise the defendant of the right to counsel and of the willingness of the judge to appoint counsel to represent the defendant if the defendant is unable to employ counsel. Upon a showing of indigency, it shall be the duty of the judge to appoint counsel to represent the defendant.
If, after being informed of the right to counsel, the defendant requests to proceed without the benefit of counsel and the judge finds that the defendant has knowingly, voluntarily and intelligently waived the defendant's right to have counsel, the judge shall have no duty to appoint counsel. If at any stage of the proceedings it appears to the judge before whom the matter is then pending that because of the gravity of the ordinance violation charged and other circumstances affecting the defendant the failure to appoint counsel may result in injustice to the defendant, the judge shall then appoint counsel. Appointed counsel shall be allowed a reasonable time in which to prepare the defense.
37.51 PLEADINGS AND MOTIONS BEFORE TRIAL — DEFENSES AND OBJECTIONS — HEARING ON MOTION
(a) Pleadings. Pleadings shall be the information and plea thereto.
(b) Motion Raising Defenses and Objections.
(1) Defenses and Objections That May Be Raised. Any defense or objection that is capable of determination without trial of the general issue may be raised before trial by motion.
(2) Defenses and Objections That Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the information other than that it fails to show jurisdiction in the court or to charge an ordinance violation may be raised only by motion before trial.
The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.
(3) Time of Making Motion. The motion shall be made before the plea is entered, but the judge may permit it to be made within a reasonable time thereafter.
(4) Hearing on Motion. The motion shall be heard and determined before trial on application of the prosecutor or the defendant, unless the court orders that the hearing and determination be deferred until the trial.
(5) Matters That Shall Be Noticed by the Court. Lack of jurisdiction or the failure of the information to charge an ordinance violation shall be noticed by the court at any time during the pendency of the proceeding.
37.52 MOTIONS TO SUPPRESS
Requests that evidence be suppressed shall be raised by motion before trial; however, the court in the exercise of discretion may entertain a motion to suppress evidence at any time during trial.
37.53 ORDINANCE VIOLATION CASES NOT HEARD ON THE RECORD — DISQUALIFICATION AND CHANGE OF JUDGE
(a) This Rule 37.53 governs the procedure for disqualification of a judge in all ordinance violation cases, except those heard de novo or those in which there is a timely exercise of a right to a jury trial.
(b) Without Application. If the judge is related to any defendant or has an interest in or has been counsel in the case, the judge shall recuse.
(c) With Application — Procedure. A change of judge shall be ordered upon the filing of a written application therefor by any party. The applicant need not allege or prove any reason for such change.
The application need not be verified and may be signed by any party or an attorney for any party.
The application must be filed not later than ten days after the initial plea is entered.
If the designation of the trial judge occurs less than ten days before trial, the application may be filed any time prior to trial. If the designation of the trial judge occurs more than ten days after the initial plea is entered, the application shall be filed within ten days of the designation of the trial judge or prior to the commencement of any proceeding on the record, whichever is earlier.
No party shall be allowed more than one change of judge pursuant to this Rule 37.53(c). However, no party shall be precluded from requesting any change of judge for cause at any time.
(d) When a timely application for a change of judge is filed or a judge recuses, the judge shall:
(1) Comply with any circuit court rule that provides for the assignment of a judge; or
(2) Notify the presiding judge of the circuit who shall designate a judge to hear the case or request this Court to transfer a judge to hear the case.
(e) If an associate circuit judge or a circuit judge is designated to try the case, the designated judge shall determine the location of the trial at a place within the county.
37.54 DISCOVERY
Discovery shall be permitted solely in the judge's discretion as justice requires.
37.55 PROCESS FOR WITNESSES — SUBPOENA DUCES TECUM — SERVICE — RETURN — FAILURE TO APPEAR — HEARING CONTINUANCE — CONTEMPT
The prosecutor and the defendant shall be entitled to process for witnesses as follows:
(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title of the proceedings and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.
The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served.
(b) For Production of Documentary Evidence and of Objects. A subpoena duces tecum may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein.
(c) Modification of Subpoena. The court may quash or modify a subpoena if compliance would be unreasonable or oppressive.
The court may direct that books, papers, documents, or objects designated in a subpoena duces tecum be produced before the court at a time prior to the trial or prior to the time when they are offered in evidence. Upon their production the court may permit the books, papers, documents, or objects, or portions thereof to be inspected by the parties or their attorneys.
(d) Service — Tender of Fees and Mileage Not Required. A subpoena may be served by any peace officer or by any other person who is not a party and who is not less than 18 years of age. A subpoena may be served any place within the state.
Fees and mileage need not be tendered to the witness upon service of a subpoena.
The service of a subpoena shall be by reading the same or delivering a copy thereof to the person to be summoned. If the witness shall refuse to hear such subpoena read or to receive a copy thereof, the offer of the officer or other person to read the same or to deliver a copy thereof and such refusal shall be sufficient service of such subpoena.
(e) Return.
(1) Every officer to whom a subpoena is delivered for service shall make return thereof in writing as to the time, place, and manner of service of the subpoena, and shall sign the return.
(2) If a person other than an officer makes service of the subpoena, he or she shall make affidavit as to the time, place, and manner of service.
(f) Contempt. Any person who does not obey a subpoena without good cause shall be subject to contempt of court proceedings.
(g) Continuing Obligation to Attend. Whenever a witness in a proceeding has been once subpoenaed or required to give bail to appear before the court, the witness shall attend from time to time until the case is disposed or the witness is finally discharged by the judge. The witness shall be liable to attachment and bail may be forfeited for failure to appear if the witness has received notice of the time and place to appear.
If the trial is continued, the judge shall orally notify such witnesses present as either party requests to attend on the new date set for hearing to give testimony. The oral notice shall be valid as a summons. The names of the witnesses so notified shall be entered on the docket.
It shall be the sole responsibility of the respective parties or their attorneys to notify any witnesses not orally notified by the judge of the new date set for hearing, and court process shall be provided for such purpose when requested.
37.56 CONTINUANCES
The prosecution and defense in each case shall have the right to a speedy trial. Continuances may be granted for good cause shown.
37.57 PRESENCE OF DEFENDANT — WHEN REQUIRED
No defendant shall either be tried or permitted to enter a plea of guilty unless the defendant is personally present or the judge, defendant, and prosecutor consent to such trial or plea in the defendant's absence. The defendant's presence in the courtroom shall not be required in the event of a reduction of sentence.
37.58 PLEAS
(a) Alternatives. A defendant may plead not guilty or guilty. If a defendant refuses to plead or if a corporation fails to appear, the court shall enter a plea of not guilty.
(b) Advice to Defendant. Except as provided by Rule 37.49 or Rule 37.57, before accepting a plea of guilty, the judge shall address the defendant personally in open court. The judge shall inform the defendant of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) The defendant's right to be represented by an attorney and that the judge will appoint an attorney for the defendant if defendant is indigent and if it appears to the judge that there would possibly be a jail sentence upon conviction; and
(3) That if defendant pleads guilty there will not be a trial of any kind, so that by pleading guilty the defendant waives the right to a trial, and
(4) The defendant's right to plead not guilty or to persist in that plea if it has already been made.
The judge shall further inform defendant of any right to a jury trial, the right to present witnesses on behalf of the defendant, that defendant has the right to confront and cross-examine witnesses against defendant, that defendant has the right to testify and that nobody can compel defendant to testify.
The judge shall determine whether the defendant understands, upon oral or written information provided, the matters presented.
(c) Ensuring That the Plea is Voluntary. Except as provided by Rule 37.49 or Rule 37.57, the judge shall not accept a plea of guilty unless the judge finds that said plea is knowingly, voluntarily, and intelligently made and not the result of force or threats or promises.
(d) Waiver of Counsel. If the defendant would possibly receive a jail sentence upon conviction, the judge shall determine, before accepting the defendant's plea of guilty or not guilty, that the defendant has made a knowledgeable, voluntary, and intelligent waiver of the right to assistance of counsel.
Prior to making the finding, the judge shall review with the defendant a written waiver of counsel.
If the judge finds the waiver is knowingly, voluntarily, and intelligently made, the waiver shall be signed by the defendant, witnessed by the judge or the clerk at the judge's direction, and appropriately recorded. The written waiver of counsel shall be substantially in the form as set out in Form 37.C.
(e) Plea Agreement Procedure. The judge shall not participate in any plea agreement discussions, but after a plea agreement has been reached the judge may discuss the agreement with the attorneys including any alternative that would be acceptable.
(1) In General. The prosecutor and the attorney for the defendant or the defendant acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged ordinance violation or to a lesser or related ordinance violation, the prosecutor will do any of the following:
(A) Dismiss other charges; or
(B) Make a recommendation, or agree not to oppose the defendant's request for a particular sentence with the understanding that such recommendation or request shall not be binding on the judge; or
(C) Agree that a specific sentence is the appropriate disposition of the case; or
(D) Make a recommendation for, or agree on, another appropriate disposition of the case.
The judge shall not participate in any such discussions, but after a plea agreement has been reached, the judge may discuss the agreement with the attorneys including any alternative that would be acceptable.
(2) Disclosure of Plea Agreement — Court's Actions Thereon. If the parties have reached a plea agreement, the judge shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera at the time the plea is offered. If the agreement is pursuant to Rule 37.58(e)(1)(b), the judge shall advise the defendant that the plea cannot be withdrawn if the judge does not adopt the recommendation or request. Thereupon the judge may accept or reject the agreement or may defer a decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.
(3) Acceptance of a Plea Agreement. If the judge accepts the plea agreement, the judge shall inform the defendant that the judge will embody in the judgment and sentence the disposition provided for in the plea agreement.
(4) Rejection of a Plea Agreement. If the judge rejects the plea agreement, the judge shall inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera that the judge is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea if it is based on an agreement pursuant to Rule 37.58(e)(1)(a), (c), or (d), and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
(5) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this subdivision, evidence of a plea of guilty, later withdrawn, or of offer to plead guilty to the ordinance violation charged or of any other ordinance violation, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to a plea of guilty, later withdrawn, or an offer to plead guilty to the ordinance violation charged or any other ordinance violation, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and in the presence of counsel.
(f) Determining Accuracy of Plea. The judge shall not enter a judgment upon a plea of guilty without first determining that there is a factual basis for the plea.
37.59 [RESERVED]
37.60 SEVERANCE
If two or more defendants are charged in an information, all defendants shall be tried together unless the court orders a defendant to be tried separately. A defendant shall be ordered to be tried separately only if the defendant files a written motion requesting a separate trial and the court finds a probability of prejudice exists.
If a defendant is charged with more than one ordinance violation in the same information, the violations shall be tried jointly unless the court orders a violation to be tried separately. A violation shall be ordered to be tried separately only if:
(a) A party files a written motion requesting a separate trial of the offense;
(b) A party makes a particularized showing of substantial prejudice if the violation is not tried separately; and
(c) The court finds the existence of a bias or discrimination against the party that requires a separate trial of the violation.
37.61 TRIALS — ISSUES OF FACT — JURY — CERTIFICATION
(a) All trials of ordinance violations shall be held in open court in an orderly manner according to law.
(b) If practical, traffic cases shall be heard and tried separately from other types of cases. Where a particular session of court has been designated a traffic case session, only traffic cases shall be tried except for good cause shown.
(c) The judge shall determine all issues of fact in ordinance violation cases unless a jury trial is authorized by law and requested by the defendant.
(d) A request for a jury trial shall be made by motion filed at least ten days prior to the scheduled trial date. If the designation of the trial date occurs less than ten days before trial, the application may be filed any time prior to trial. The judge shall promptly rule on a motion for jury trial. If the motion is sustained, the case shall be certified to the presiding judge for assignment for trial by jury unless otherwise provided by statute.
(e) All jury trials shall proceed in the manner provided for the trial of a misdemeanor by the rules of criminal procedure.
(f) If the defendant files a written motion so requesting and attaches thereto a waiver of the right to a jury trial, the case may be remanded to the municipal division for trial.
37.62 ORDER OF TRIAL
The order of trial in nonjury ordinance violation cases shall be as follows:
(a) The prosecutor may make an opening statement. The defendant may make an opening statement or reserve it.
(b) The prosecutor shall offer evidence.
(c) The defendant may move for judgment of acquittal.
(d) The defendant may make an opening statement, if reserved.
(e) Evidence may be offered on behalf of the defendant.
(f) The parties, respectively, may offer evidence in rebuttal.
(g) The defendant may move for judgment of acquittal.
(h) The court may fix the length of time for arguments and shall announce it to counsel. The prosecutor shall make the opening argument, the attorney for the defendant shall make an argument, and the prosecutor for the state shall conclude the argument. Each party may waive the right to argument.
(i) The judge pronounces judgment.
37.63 FAILURE OF DEFENDANT OR DEFENDANT'S SPOUSE TO TESTIFY
(a) If the defendant shall not avail himself or herself of the right to testify or of the testimony of the wife or husband on the trial in the case, it shall not be construed to affect the innocence or the guilt of the defendant nor shall the same raise any presumption of guilt, nor be referred to by any party or attorney in the case, nor be considered by the court or jury before whom the trial takes place.
(b) If the defendant does not testify and the defendant so requests, but not otherwise, the court shall instruct the jury in writing as follows:
"Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that defendant did not testify."
37.64 SENTENCE AND JUDGMENT
(a) Pre-sentence Investigation.
(1) When Made. When a probation or parole officer is available to the judge and upon the direction of the judge, the officer shall make a pre-sentence investigation and report to the judge before the imposition of sentence or the granting of probation. The report shall be submitted to the court only after the defendant has pleaded guilty or has been found guilty.
(2) Report. The report of the pre-sentence investigation shall contain such information as the judge shall request. Before making any authorized disposition, the judge, upon request of defendant or the attorney for defendant, shall allow the defendant and the attorney for the defendant access to the complete pre-sentence investigation report and recommendations.
(b) Sentence. Sentence shall be imposed without unreasonable delay. A defendant must be personally present when sentence and judgment are pronounced unless the judge, the prosecutor, and the defendant consent to the absence of the defendant.
(c) Notification of Right to Trial De Novo. After imposing sentence, the judge shall advise the defendant of any right to trial de novo and the right of a defendant who is unable to pay the cost the right to proceed as an indigent.
(d) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly.
(e) Probation and Parole. If authorized by law, the judge may suspend the imposition of sentence or execution of sentence and place the defendant on probation or parole for a term not to exceed two years.
(f) Stay of Sentence. The court in which any judgment, whether of imprisonment or fine, was rendered may grant, by an order entered of record and signed by the judge, a stay of execution upon such judgment or portion thereof for a specified period or periods of time, not to exceed six months. The judge may require the defendant to enter into a bond conditioned upon surrender of the defendant in execution upon such judgment on a day to be specified in such order.
(g) Conviction of Two or More Sentences. When pronouncing sentence, the judge shall state whether the sentence shall run consecutively or concurrently with sentences on one or more ordinance violations for which defendant is being sentenced or for which defendant has been previously sentenced. If the judge fails to do so at the time of pronouncing the sentences, the respective sentences shall run concurrently.
37.65 FINES, INSTALLMENT OR DELAYED PAYMENTS — RESPONSE TO NONPAYMENT
(a) When a fine is assessed for violation of an ordinance, it shall be within the discretion of the judge assessing the fine to provide for the payment of the fine on an installment basis under such terms and conditions as the judge may deem appropriate.
(b) If it appears to the judge imposing judgment assessing a fine that the defendant does not have at that time the present means to satisfy the fine, the judge assessing the fine may order a stay of execution on the judgment and grant the defendant a specified period of time within which to satisfy the same.
(c) If a defendant defaults in the payment of the fine, the judge may order the defendant to show cause why the defendant should not be held in contempt of court.
(d) Upon default in the payment of a fine or any installment thereof, the fine may be collected by any means authorized by law, including means for the enforcement of money judgments.
37.66 SENTENCE OF IMPRISONMENT — TRANSCRIPT TO CORRECTIONS OFFICIAL
When a defendant is sentenced to imprisonment, the clerk shall deliver to the corrections official a certified copy of the judgment and sentence, specifying credit for time served, and the corrections official shall confine the defendant in a detention facility or deliver the defendant as specified in the order.
37.67 JUDGMENT SET ASIDE — WHEN
(a) Within ten days after the entry of judgment and prior to the filing of application for trial de novo, the court may of its own initiative or on motion of a defendant set aside judgment upon any of the following grounds:
(1) That the facts stated in the information filed and upon which the cause was tried do not state an ordinance violation;
(2) That the court was without jurisdiction of the ordinance violation charged;
(3) To correct manifest injustice.
The court shall record the grounds upon which the order was entered.
(b) A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice, the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the defendant's plea.
(c) Clerical mistakes in the record and errors in the record arising from oversight or omission may be corrected by the court any time on the motion of any party and after such notice, if any, as the court orders.
37.68 [RESERVED]
37.69 JUDGMENT — COMMUTATION
After commitment of a defendant to serve a sentence of imprisonment, the judge may commute the term of the sentence to the time then served.
37.70 REVOCATION OF PROBATION OR PAROLE
A judge may revoke probation or parole upon compliance with section 559.036, RSMo, but not otherwise, except that notice of the hearing may be mailed in the same manner as a summons. The defendant may be conditionally released pending final hearing.
37.71 TRIAL DE NOVO — RIGHT — TIME
(a) An application for trial de novo shall be filed as provided by law. No judge may order an extension of time for filing or perfecting an application for trial de novo.
(b) An application for trial de novo shall not be granted after the defendant satisfies any part of the penalty and costs of the judgment.
37.72 TRIAL DE NOVO — STAY OF EXECUTION
The filing of an application for trial de novo or review shall suspend the execution of the judgment of the municipal division. If the applicant for trial de novo withdraws the application, or if before commencement of trial, the court enters a finding that the applicant has abandoned the trial de novo, the case shall be remanded to the municipal division for execution of judgment.
37.73 TRIAL DE NOVO — TRANSMITTAL OF RECORD
When an application for trial de novo is filed, the clerk shall transmit the duly certified record to the clerk of the division designated to hear ordinance violations de novo. The failure of the clerk to transmit the record shall not affect the defendant's trial de novo.
37.74 TRIAL DE NOVO — PROCEDURE
All trials de novo shall proceed in the manner provided for the trial of a misdemeanor by the rules of criminal procedure.
37.75 CRIMINAL CONTEMPT
(a) A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the judge's presence. The judgment of contempt and the order of commitment shall recite the facts and shall be signed by the judge and entered of record.
(b) All other instances of contempt shall be prosecuted on notice. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a finding of guilt, the judge shall recite in the judgment of contempt and in the order of commitment the essential facts constituting the criminal contempt and fixing the punishment.
4. It is ordered that effective July 1, 2004, Rule 38, consisting of subdivisions 38.01 to 38.15, inclusive, be and the same is hereby repealed and a new Rule 38, consisting of subdivisions 38.01 to 38.14, inclusive, adopted in lieu thereof to read as follows:
RULE 38 CERTAIN STATUTORY VIOLATIONS AND VIOLATIONS BUREAUS
38.01 RULES — WHEN APPLICABLE
Rule 38 governs the procedure in all courts of this state having original jurisdiction of violations of sections 210.104, 577.070, and 577.073, RSMo, and chapters 252, 301, 302, 304, 306, 307 and 390, RSMo, and the disposition of violations in a violation bureau established pursuant to section 476.385, RSMo, or in a local violation bureau established pursuant to Supreme Court Rules.
38.02 RULES — AUTHORITY FOR — STATUTES AND ORDINANCES SUPERSEDED
Rule 38 is promulgated pursuant to authority granted this Court by article V , section 5 of the Missouri Constitution and supersedes all statutes, ordinances and court rules inconsistent therewith.
38.03 RULES — CONSTRUCTION
Rule 38 shall be construed to secure the just, speedy and inexpensive disposition of violations to which this Rule 38 applies.
38.04 RULES — WHEN NOT APPLICABLE — PROCEDURE
If no procedure is specifically provided by this Rule 38, the court shall be governed by Rules 19 to 36, inclusive, to the extent not inconsistent with this Rule 38.
38.05 DEFINITIONS
Whenever in this Rule 38 the following terms are used, they mean the following:
(a) "Clerk," any designated court clerk or court administrator or any deputy or division court clerk serving courts to which this Rule 38 applies;
(b) "Committee," committee consisting of at least seven associate circuit judges appointed by this Court pursuant to section 476.385, RSMo;
(c) "County," includes the city of St. Louis;
(d) "Court," a division of the circuit court having jurisdiction to hear violations to which this Rule 38 applies;
(e) "Director," the designated manager of the fine collection center;
(f) "Fine collection center," the centralized violation bureau established pursuant to section 476.385, RSMo;
(g) "Local violation bureau," local violation bureau established pursuant to rules of this Court;
(h) "Person," includes corporation;
(i) "Prosecuting attorney," any prosecuting or circuit attorney having the duty to prosecute violations to which this Rule 38 applies;
(j) "Public safety violation," any violation of section 577.070 or section 577.073, RSMo;
(k) "Traffic violation," any violation of section 210.104, RSMo, and chapters 301, 302, 304, 307, or 390, RSMo;
(l) "Uniform fine schedule," any fine schedule approved pursuant to Rule 38.08;
(m) "Violation(s)," traffic violations, public safety violations , watercraft violations, and wildlife violations;
(n) "Watercraft violation," any violation of chapter 306, RSMo;
(o) "Wildlife violation," any violation of chapter 252, RSMo.
38.06 VIOLATIONS — RULE 38 NOT APPLICABLE
This Rule 38 shall not apply to the following violations:
(a) Any violation resulting in personal injury or property damage to another person;
(b) Operating a motor vehicle or watercraft while intoxicated or under the influence of intoxicants or drugs;
(c) Operating a vehicle with a counterfeited, altered, suspended or revoked license;
(d) Fleeing or attempting to elude an officer;and
(e) Any other violation excluded by law.
38.07 VIOLATION NOTICE — CONTENTS
(a) A violation notice shall be in writing and shall:
(1) State the name and address of the court;
(2) State the name of the prosecuting county;
(3) State the name of the accused, if known, or, if the accused's name is not known, designate the accused by any name or description by which the accused can be identified with reasonable certainty;
(4) State the date and place of the violation as definitely as can be done;
(5) State the facts that support a finding of probable cause to believe the violation was committed and that the accused committed it;
(6) State that the facts contained therein are true;
(7) Be signed by the issuing officer and on a form bearing notice that false statements made therein are punishable by law;
(8) Cite the chapter and section alleged to have been violated and the chapter and section that fixes the penalty or punishment;
(9) State a person must respond to the notice of violation by paying the specified fine and court costs, or pleading not guilty and appearing at trial;
(10) State other legal penalties prescribed by law may be imposed for failure to appear and dispose of the violation; and
(11) Be substantially in the form of the Uniform Citation set out in Form 37.A, with such additions as may be necessary to adapt the Uniform Citation to the jurisdiction involved.
(b) When a violation has been designated by the court to be within the authority of a violation bureau, the accused shall be provided with written notification of the specified fine and costs for the violation or with information regarding how the accused may obtain the amount of the fine and court costs for the violation.
38.08 COURT MAY SET ASIDE GUILTY PLEA OR CORRECT THE RECORD
(a) Within 30 days after entry of the guilty plea, the court, on motion of the defendant, may set aside a guilty plea upon one of the following grounds:
(1) That the facts stated in the violation do not constitute an offense;
(2) That the court, local violation bureau, or the fine collection center is without jurisdiction of the violation charged; or
(3) To correct manifest injustice.
The court shall specify of record the grounds upon which the order is entered.
(b) Failure to file a motion within the time limit provided by this Rule 38.08 shall constitute a complete waiver of any right to proceed under this Rule 38.08 and a complete waiver of any claim that could be raised in a motion, except that the court may set aside the judgment of conviction at any time to correct manifest injustice.
(c) Clerical mistakes in the record and errors in the record arising from oversight or omission may be corrected by the court at any time on the motion of any party and after such notice, if any, as the court orders.
(d) Any person seeking relief pursuant to this Rule 38.08 shall file the motion with the clerk of the local violation bureau in which the violation is filed.
If the violation is filed in the fine collection center, any person seeking relief pursuant to this Rule 38.08 shall file the motion with the director of the fine collection center.
The clerk or the director shall forthwith transmit the motion to the prosecuting attorney and the judge.
(e) When a guilty plea or a judgment of conviction is set aside pursuant to this Rule 38.08 and the order is filed with the clerk, the clerk shall:
(1) Notify the prosecuting attorney and the defendant of the order; and
(2) Notify the department of revenue of the order if the violation is a moving traffic violation.
If the violation is filed in the fine collection center, the record shall be transmitted to the prosecuting attorney who shall determine whether the violation should be prosecuted by information.
38.09 UNIFORM FINE SCHEDULES
Uniform schedules of fine and costs for violations shall be established and maintained as provided by section 476.385, RSMo. The uniform fine schedules shall be filed with the clerk of this Court.
38.10 FINE COLLECTION CENTER
(a) The director of the fine collection center shall perform the duties designated by the committee, including accepting appearance, waiver of trial, plea of guilty, and payment of fine and costs for the designated violations, entering the plea on the record, and transmitting the violation record as required by law.
(b) Within the time fixed by the fine collection center, any person charged with a violation, except violations requiring court appearance, may deliver by mail, automated teller machine or as otherwise directed the specified amount of the fine and costs to the fine collection center. Said delivery constitutes a guilty plea and waiver of trial.
All payments in an amount less than the specified amount of fine and costs and refusal by a defendant to enter a plea shall be entered as a plea of not guilty.
38.11 FILING A VIOLATION WITH THE FINE COLLECTION CENTER
In each county participating in the fine collection center, all designated violations shall be filed with the fine collection center without undue delay.
38.12 PLEAS OF NOT GUILTY FILED WITH THE FINE COLLECTION CENTER
Pleas of not guilty to a violation filed with the fine collection center shall be filed in writing only at the office of the fine collection center. The center shall thereafter transmit the record to the prosecuting attorney to determine whether the violations should be prosecuted by information.
38.13 FAILURE TO RESPOND TO FINE COLLECTION CENTER
The director of the fine collection center shall notify the director of revenue if a defendant fails to respond to the violation either by pleading not guilty or by pleading guilty and paying the specified fine and costs and, thereafter, shall transmit the violation record to the prosecuting attorney who shall determine whether the violation should be prosecuted by information.
38.14 LOCAL VIOLATION BUREAU — CLERK — SCHEDULE OF FINES — PAYMENT
(a) Any judge having original jurisdiction of any public safety , traffic, watercraft, or wildlife violation may establish by court order a violation bureau.
(b) The judge shall designate a clerk. The clerk shall perform the duties designated by the court including accepting appearance, waiver of trial, plea of guilty, and payment of fine and costs for the designated violations, entering the plea on the record, and transmitting the violation record as required by law.
(c) The violations within the authority of the bureau shall be designated by order of the judge. Such designated violations may be amended from time to time, but shall in no event include any violation set forth in Rule 38.06.
(d) The judge, by order prominently posted at the place where the fines are to be paid, shall specify by schedule the amount of fines and costs to be imposed for each violation.
(e) Within the time fixed by the judge and subject to the judge's order, any person charged with a violation, except violations requiring court appearance, may deliver by mail, automated teller machine or as otherwise directed the specified amount of the fine and costs to the bureau. Said delivery constitutes a guilty plea and waiver of trial.
(f) The associate circuit judges within each county may meet en banc and adopt any uniform fine schedule. Notice of adoption of a uniform fine schedule shall be filed with the clerk of this Court.
5. It is ordered that effective July 1, 2004, subdivision 81.04(c) of Rule 81 is corrected so that the phrase "fifty dollars" shall read "$70".
6. It is ordered that effective July 1, 2004, subdivision 84.06(h) of Rule 84 is corrected so that the phrase "a brief on disk" in the last paragraph of the rule shall read "an electronic mail message containing the brief".
7. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
8. It is ordered that this order be published in the South Western Reporter.