S0076.07T

To repeal sections 547.200, 552.020, 556.036, 566.617, and 568.060, RSMo 1994, relating to court procedure, and to enact in lieu thereof twenty-one new sections relating to the same subject, with penalty provisions.

Be it enacted by the General Assembly of the State of Missouri, as follows:

     Section A. Sections 547.200, 552.020, 556.036, 566.617, and 568.060, RSMo 1994, are repealed and twenty-one new sections enacted in lieu thereof, to be known as sections 547.200, 552.020, 556.036, 566.083, 566.617, 568.060, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, to read as follows:

     547.200. 1. An appeal may be taken by the state through the prosecuting or circuit attorney from any order or judgment the substantive effect of which results in:

     (1) Quashing an arrest warrant;

     (2) A determination by the court that the accused lacks the mental capacity or fitness to proceed to trial, pursuant to section 552.020, RSMo;

     (3) Suppressing evidence; or

     [(3)] (4) Suppressing a confession or admission.

     2. The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant. The supreme court shall issue rules governing such appeals.

     3. The appeal provided in subsection 1 of this section shall be an interlocutory appeal, filed in the appropriate district of the Missouri court of appeals, unless the proceedings involve a charge of capital murder or murder in the first degree, pursuant to the provisions of section 565.001 or 565.003, RSMo, in which case notices of appeal shall be filed in the supreme court of Missouri.

     4. Notices of appeal involving appeals under subsection 1 of this section shall be filed in the appropriate court within five days of the entry of the order of the trial court. In such appeals, the time requirements of section 545.780, RSMo, shall be tolled until the decision is rendered by the appropriate appellate court.

     5. The supreme court shall issue appropriate rules to facilitate the disposition of such appeals, balancing the right of the state to review the correctness of pretrial decisions of a trial court against the rights of the defendant to a speedy trial, including measures to facilitate these appeals by shortening of the time to file appellant's brief under supreme court rule 30.06(K) to ten days, and eliminations of motions for rehearing or transfer under supreme court rules 30.26 and 30.27.

     552.020. 1. No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.

     2. Whenever any judge has reasonable cause to believe that the accused lacks mental fitness to proceed, he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private psychiatrists or psychologists, as defined in section 632.005, RSMo, or physicians with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals, who are neither employees nor contractors of the department of mental health for purposes of performing the examination in question, to examine the accused; or shall direct the director to have the accused so examined by one or more psychiatrists or psychologists, as defined in section 632.005, RSMo, or physicians with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals. The order shall direct that a written report or reports of such examination be filed with the clerk of the court. No private physician, psychiatrist, or psychologist shall be appointed by the court unless he has consented to act. The examinations ordered shall be made at such time and place and under such conditions as the court deems proper; except that, if the order directs the director of the department to have the accused examined, the director, or his designee, shall determine the time, place and conditions under which the examination shall be conducted. The order may include provisions for the interview of witnesses and may require the provision of police reports to the department for use in evaluations. The department shall establish standards and provide training for those individuals performing examinations pursuant to this section and section 552.030. No individual who is employed by or contracts with the department shall be designated to perform an examination pursuant to this chapter unless the individual meets the qualifications so established by the department. Any examination performed pursuant to this subsection shall be completed and filed with the court within sixty days of the order unless the court for good cause orders otherwise. Nothing in this section or section 552.030 shall be construed to permit psychologists to engage in any activity not authorized by chapter 337, RSMo. One pretrial evaluation shall be provided at no charge to the defendant by the department. All costs of subsequent evaluations shall be assessed to the party requesting the evaluation.

     3. A report of the examination made under this section shall include:

     (1) Detailed findings;

     (2) An opinion as to whether the accused has a mental disease or defect;

     (3) An opinion based upon a reasonable degree of medical or psychological certainty as to whether the accused, as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense;

     (4) A recommendation as to whether the accused should be held in custody in a suitable hospital facility for treatment pending determination, by the court, of mental fitness to proceed; and

     (5) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in such hospital facility pending further proceedings.

     4. If the accused has pleaded lack of responsibility due to mental disease or defect or has given the written notice provided in subsection 2 of section 552.030, the court shall order the report of the examination conducted pursuant to this section to include, in addition to the information required in subsection 3 of this section, an opinion as to whether at the time of the alleged criminal conduct the accused, as a result of mental disease or defect, did not know or appreciate the nature, quality, or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law. A plea of not guilty by reason of mental disease or defect shall not be accepted by the court in the absence of any such pretrial evaluation which supports such a defense. In addition, if the accused has pleaded not guilty by reason of mental disease or defect, and the alleged crime is not a dangerous felony as defined in section 556.061, RSMo, or those crimes set forth in subsection 11 of section 552.040, or the attempts thereof, the court shall order the report of the examination to include an opinion as to whether or not the accused should be immediately conditionally released by the court pursuant to the provisions of section 552.040 or should be committed to a mental health or mental retardation facility. If such an evaluation is conducted at the direction of the director of the department of mental health, the court shall also order the report of the examination to include an opinion as to the conditions of release which are consistent with the needs of the accused and the interest of public safety, including, but not limited to, the following factors:

     (1) Location and degree of necessary supervision of housing;

     (2) Location of and responsibilities for appropriate psychiatric, rehabilitation and aftercare services, including the frequency of such services;

     (3) Medication follow-up, including necessary testing to monitor medication compliance;

     (4) At least monthly contact with the department's forensic case monitor;

     (5) Any other conditions or supervision as may be warranted by the circumstances of the case.

     5. If the report contains the recommendation that the accused should be committed to or held in a suitable hospital facility pending determination of the issue of mental fitness to proceed, and if the accused is not admitted to bail or released on other conditions, the court may order that the accused be committed to or held in a suitable hospital facility pending determination of the issue of mental fitness to proceed.

     6. The clerk of the court shall deliver copies of the report to the prosecuting or circuit attorney and to the accused or his counsel. The report shall not be a public record or open to the public. Within ten days after the filing of the report, both the defendant and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a psychiatrist or psychologist, as defined in section 632.005, RSMo, or a physician with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals, of their own choosing and at their own expense. An examination performed pursuant to this subsection shall be completed and a report filed with the court within sixty days of the date it is received by the department or private psychiatrist, psychologist or physician unless the court, for good cause, orders otherwise. A copy shall be furnished the opposing party.

     7. If neither the state nor the accused nor his counsel requests a second examination relative to fitness to proceed or contests the findings of the report referred to in subsections 2 and 3 of this section, the court may make a determination and finding on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested, the court shall hold a hearing on the issue. The court shall determine the issue of mental fitness to proceed and may impanel a jury of six persons to assist in making the determination. The report or reports may be received in evidence at any hearing on the issue but the party contesting any opinion therein shall have the right to summon and to cross-examine the examiner who rendered such opinion and to offer evidence upon the issue.

     8. At a hearing on the issue pursuant to subsection 7 of this section, the accused is presumed to have the mental fitness to proceed. The burden of proving that the accused does not have the mental fitness to proceed is by a preponderance of the evidence and the burden of going forward with the evidence is on the party raising the issue. The burden of going forward shall be on the state if the court raises the issue.

     9. If the court determines that the accused lacks mental fitness to proceed, the criminal proceedings shall be suspended and the court shall commit him to the director of the department of mental health.

     [9.] 10. Any person committed pursuant to subsection [8] 9 of this section shall be entitled to the writ of habeas corpus upon proper petition to the court that committed him. The issue of the mental fitness to proceed after commitment under subsection [8] 9 of this section may also be raised by a motion filed by the director of the department of mental health or by the state, alleging the mental fitness of the accused to proceed. A report relating to the issue of the accused's mental fitness to proceed may be attached thereto. If the motion is not contested by the accused or his counsel or if after a hearing on a motion the court finds the accused mentally fit to proceed, or if he is ordered discharged from the director's custody upon a habeas corpus hearing, the criminal proceedings shall be resumed.

     [10.] 11. The following provisions shall apply after a commitment as provided in this section:

     (1) Six months after such commitment, the court which ordered the accused committed shall order an examination by the head of the facility in which the accused is committed, or a qualified designee, to ascertain whether the accused is mentally fit to proceed and if not, whether there is a substantial probability that the accused will attain the mental fitness to proceed to trial in the foreseeable future. The order shall direct that written report or reports of the examination be filed with the clerk of the court within thirty days and the clerk shall deliver copies to the prosecuting attorney or circuit attorney and to the accused or his counsel. The report required by this subsection shall conform to the requirements under subsection 3 of this section with the additional requirement that it include an opinion, if the accused lacks mental fitness to proceed, as to whether there is a substantial probability that the accused will attain the mental fitness to proceed in the foreseeable future.

     (2) Within ten days after the filing of the report, both the accused and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a psychiatrist or psychologist, as defined in section 632.005, RSMo, or a physician with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals, of their own choosing and at their own expense. An examination performed pursuant to this subdivision shall be completed and filed with the court within thirty days unless the court, for good cause, orders otherwise. A copy shall be furnished to the opposing party.

     (3) If neither the state nor the accused nor his counsel requests a second examination relative to fitness to proceed or contests the findings of the report referred to in subdivision (1) of this subsection, the court may make a determination and finding on the basis of the report filed, or may hold a hearing on its own motion. If any such opinion is contested, the court shall hold a hearing on the issue. The report or reports may be received in evidence at any hearing on the issue but the party contesting any opinion therein relative to fitness to proceed shall have the right to summon and to cross-examine the examiner who rendered such opinion and to offer evidence upon the issue.

     (4) If the accused is found mentally fit to proceed, the criminal proceedings shall be resumed.

     (5) If it is found that the accused lacks mental fitness to proceed but there is a substantial probability the accused will be mentally fit to proceed in the reasonably foreseeable future, the court shall continue such commitment for a period not longer than six months, after which the court shall reinstitute the proceedings required under subdivision (1) of this subsection.

     (6) If it is found that the accused lacks mental fitness to proceed and there is no substantial probability that the accused will be mentally fit to proceed in the reasonably foreseeable future, the court shall dismiss the charges without prejudice and the accused shall be discharged, [unless] but only if proper proceedings have been filed under chapter 632 or chapter 475, RSMo, in which case those sections and no others will be applicable. The probate division of the circuit court shall have concurrent jurisdiction over the accused upon the filing of a proper pleading to determine if the accused shall be involuntarily detained under chapter 632, RSMo, or to determine if the accused shall be declared incapacitated under chapter 475, RSMo, and approved for admission by the guardian under section 632.120 or 633.120, RSMo, to a mental health or retardation facility. When such proceedings are filed, the criminal charges shall be dismissed [when] without prejudice if the court [makes its finding on whether] finds that the accused is mentally ill and should be committed or [whether] that he is incapacitated and should have a guardian appointed. The period of limitation on prosecuting any criminal offense shall be tolled during the period that the accused lacks mental fitness to proceed.

     12. If the question of the accused's mental fitness to proceed was raised after a jury was impaneled to try the issues raised by a plea of not guilty and the court determines that the accused lacks the mental fitness to proceed or orders the accused committed for an examination pursuant to this section, the court may declare a mistrial. Declaration of a mistrial under these circumstances, or dismissal of the charges pursuant to subsection 11 of this section, does not constitute jeopardy, nor does it prohibit the trial, sentencing or execution of the accused for the same offense after he has been found restored to competency.

     [11.] 13. The result of any examinations made pursuant to this section shall not be a public record or open to the public.

     [12.] 14. No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any examiner or other person in the course thereof, whether such examination or treatment was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding then or thereafter pending in any court, state or federal. A finding by the court that the accused is mentally fit to proceed shall in no way prejudice the accused in a defense to the crime charged on the ground that at the time thereof he was afflicted with a mental disease or defect excluding responsibility, nor shall such finding by the court be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.

     556.036. 1. A prosecution for murder or any class A felony may be commenced at any time.

     2. Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation:

     (1) For any felony, three years;

     (2) For any misdemeanor, one year;

     (3) For any infraction, six months.

     3. If the period prescribed in subsection 2 has expired, a prosecution may nevertheless be commenced for:

     (1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this provision extend the period of limitation by more than three years. As used in this subdivision, the term "person who has a legal duty to represent an aggrieved party" shall mean the attorney general or the prosecuting or circuit attorney having jurisdiction under section 407.553, RSMo, for purposes of offenses committed under sections 407.511 to 407.556, RSMo; and

     (2) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years.

     4. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

     5. A prosecution is commenced either when an indictment is found or an information filed.

     6. The period of limitation does not run:

     (1) During any time when the accused is absent from the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years; or

     (2) During any time when the accused is concealing himself from justice either within or without this state; or

     (3) During any time when a prosecution against the accused for the offense is pending in this state[.]; or

     (4) During any time when the accused is found to lack mental fitness to proceed pursuant to section 552.020, RSMo.

     566.083. 1. A person commits the crime of sexual misconduct involving a child if the person:

     (1) Knowingly exposes the person's genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age;

     (2) Knowingly exposes the person's genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child; or

     (3) Coerces a child less than fourteen years of age to expose the child's genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child.

     2. As used in this section, the term "sexual act" means any of the following, whether performed or engaged in either with any other person or alone: sexual or anal intercourse, masturbation, bestiality, sadism, masochism, fetishism, fellatio, cunnilingus, any other sexual activity or nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.

     3. Violation of this section is a class D felony; except that the second or any subsequent violation of this section is a class C felony.

     566.617. 1. Except as provided in subsection 3 of this section, the statements, photographs, and fingerprints required by sections 566.600 to 566.625 shall not be subject to the provisions of chapter 610, RSMo, and are not public records as defined in section 610.010, RSMo, and shall be available [only] to courts, prosecutors and law enforcement agencies.

     2. Except as provided in subsection 3 of this section, the statements, photographs, and fingerprints required by sections 566.600 to 566.625 shall not be subject to the provisions of chapter 610, RSMo, and are not public records as defined in section 610.010, RSMo, and shall not be open to inspection by the public or any person, other than a regularly employed peace officer or law enforcement officer.

     3. Notwithstanding any provision of law to the contrary, the local law enforcement agency shall provide a complete list of the names and addresses of each offender registered within such agency's jurisdiction as well as the crime for which such offender was convicted to any person upon request.

     568.060. 1. A person commits the crime of abuse of a child if [he] such person:

     (1) Knowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old, or

     (2) Photographs or films a child less than eighteen years old engaging in a prohibited sexual act or in the simulation of such an act or who causes or knowingly permits a child to engage in a prohibited sexual act or in the simulation of such an act for the purpose of photographing or filming the act.

     2. As used in this section "prohibited sexual act" means any of the following, whether performed or engaged in either with any other person or alone: sexual or anal intercourse, masturbation, bestiality, sadism, masochism, fetishism, fellatio, cunnilingus, any other sexual activity or nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.

     3. Abuse of a child is a class C felony, unless:

     (1) In the course thereof the person inflicts serious emotional injury on the child, or the offense is committed as part of a ritual or ceremony in which case the crime is a class B felony[.]; or

     (2) A child dies as a result of injuries sustained from conduct chargeable pursuant to the provisions of this section, in which case the crime is a class A felony.

     4. As used in this section, the word "fetishism" means a condition in which erotic feelings are excited by an object or body part whose presence is psychologically necessary for sexual stimulation or gratification.

     Section 1. Sections 1 to 11 of this act shall be known and may be cited as the "Prisoner Litigation Reform Act".

     Section 2. For the purposes of sections 1 to 11 of this act, "offender" and "correctional center" are as defined in section 217.010, RSMo.

     Section 3. An offender seeking to bring a civil action or to appeal a judgment in a civil action without the prepayment of fees or security due to indigency shall submit a request to the court to proceed without the prepayment of fees. The request shall include a certified copy of the offender's correctional center account statement, which shall be provided by the department of corrections for the six-month period immediately preceding the filing of the petition or notice of appeal.

     Section 4. 1. The court shall order the offender to pay the full amount of the filing fee. If the offender is unable to pay the full amount, the court shall assess a partial payment of the filing fee which shall be twenty percent of the greater of the following:

     (1) The average monthly deposits to the offender's account for the six-month period immediately preceding the filing of the complaint or notice of appeal requiring the payment of a fee; or

     (2) The average monthly balance in the offender's account for the six-month period immediately preceding the filing of the complaint or notice of appeal requiring the payment of a fee.

     2. If the balance in the offender's account is less than the amount assessed as the initial partial filing fee, the court shall enter judgment against the offender for the full amount of the filing fee. Payment of such judgment shall be made pursuant to section 5 of this act.

     Section 5. Following payment of an initial partial filing fee, or if the court has entered judgment for the initial partial filing fee, the offender shall make monthly payments of twenty percent of the preceding month's income credited to the offender's account until the filing fees are paid in full. The correctional facility having custody of the offender shall forward payments from the offender's account to the clerk of the court until the filing fees are paid in full. The department of corrections shall establish written guidelines for the priority of payment consistent with state and federal law.

     Section 6. Notwithstanding any filing fee which has been paid, the court shall dismiss an offender's civil action or appeal from a judgment in a civil action at any time, including before service on the defendant, if the court determines any of the following:

     (1) The allegation of indigency is untrue;

     (2) The litigation is frivolous, malicious or fails to state a claim upon which relief may be granted; or

     (3) The defendant is immune from the cause of action.

     Section 7. If a judgment against an offender includes the payment of costs, the offender shall pay the full amount of costs ordered in the same manner as provided in section 5 of this act or as otherwise authorized by law.

     Section 8. 1. The court shall review, before docketing, if feasible, or as soon as practicable after docketing, a complaint in a civil action in which an offender seeks redress from a governmental entity, officer or employee and shall identify cognizable claims or dismiss the complaint or any portion of the complaint, if the complaint:

     (1) Is frivolous, malicious or fails to state a claim upon which relief may be granted; or

     (2) Seeks monetary relief from a defendant who is immune from such relief.

     2. If a civil action or appeal of a civil judgment is dismissed on the grounds that it was frivolous, malicious or failed to state a claim upon which relief may be granted, the court may order attorneys' fees and court costs to the defendant, and payment shall be made pursuant to section 5 of this act.

     Section 9. 1. No civil action may be brought by an offender, except for a constitutional deprivation, until all administrative remedies are exhausted.

     2. If a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies.

     3. A civil action pursued by an offender in a court of this state alleging in whole or in part a violation of federal law shall be subject to all limitations on remedies established by federal law.

     Section 10. Monetary damages awarded to an offender in connection with a civil action filed by an offender or paid in settlement of such a civil action which are payable from funds appropriated by the general assembly or by a political subdivision, or from an insurance policy purchased by the state or political subdivision upon the payment of the offender's attorney fees, if any, shall first be paid directly to satisfy any obligation to pay for the costs of incarceration, and to satisfy any outstanding court orders requiring the offender to pay victim compensation, restitution, costs, bail, judgments, fines or other court-imposed fees in connection with a criminal prosecution or sentence. The full amount owed shall be deducted and paid directly to the correctional facility or entity owed. Notice to the offender shall be satisfied by certified mail or personal notice.

     Section 11. Before payment of any compensatory damages awarded to an offender in connection with a civil action brought against any correctional facility or against any official or agent of such correctional facility, reasonable efforts shall be made to notify the victims of the crime for which the offender was convicted and incarcerated concerning the pending payment of any such compensatory damages.

     Section 12. 1. A person convicted of a felony on a plea of guilty or after trial and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this section. This section provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated. The procedure to be followed for motions filed pursuant to this section is governed by the rules of civil procedure insofar as applicable.

     2. A person seeking relief pursuant to this section shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40. No cost deposit shall be required. If an appeal of the judgement sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued. If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this section shall constitute a complete waiver of any right to proceed under this section and a complete waiver of any claim that could be raised in a motion filed pursuant to this section.

     3. Movant shall file the motion and two copies thereof with the clerk of the trial court. The clerk shall immediately deliver a copy of the motion to the prosecutor. Upon receipt of the motion, the clerk shall notify the sentencing judge and shall notify the court reporter to prepare and file the complete transcript of the movant's guilty plea and sentencing hearing if the transcript has not yet been prepared or filed. If the motion is filed by an indigent pro se movant, the clerk shall forthwith send a copy of the motion to the counsel who is appointed to represent the movant.

     4. The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

     5. When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that:

     (1) All facts supporting the claims are asserted in the pro se motion; and

     (2) All claims known to the movant are alleged in the pro se motion.

The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.

     6. For good cause shown, counsel may be permitted to withdraw upon the filing of an entry of appearance by successor counsel. If appointed counsel is permitted to withdraw, the court shall cause new counsel to be appointed. If an indigent movant is seeking to set aside a death sentence, successor counsel shall have at least the same qualifications as required by section 13 of this act as the withdrawing counsel.

     7. Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference material contained in any previously filed motion. If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

     (1) The date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed; or

     (2) The date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

     (3) The date both the mandate of the appellate court is issued and counsel is appointed; or

     (4) The date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

The court may extend the time for filing the amended motion for one additional period not to exceed thirty days. Any response to the motion by the prosecutor shall be filed within thirty days after the date an amended motion is required to be filed.

     8. If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held. In such case, the court shall issue findings of fact and conclusions of law as provided in subsection 10 of this section.

     9. At any hearing ordered by the court the movant need not be present. The court may order that testimony of the movant shall be received by deposition. The hearing shall be on the record and shall be confined to the claims contained in the last timely filed motion. The court may continue the hearing upon a showing of good cause. The movant has the burden of proving the movant's claims for relief by a preponderance of the evidence.

     10. The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was illegal, or that there was a denial or infringement of the rights given movant by the constitution of Missouri or the constitution of the United States as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.

     11. An order sustaining or overruling a motion filed under the provisions of this section shall be deemed a final judgment for purposes of appeal by the movant or the state. If the court finds that a movant allowed an appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review. When the appeal is taken, the circuit court shall order the official court reporter to promptly prepare the transcript necessary for appellate review without requiring a letter from the movant's counsel ordering the same. If the sentencing court finds against the movant on the issue of indigence and the movant so requests, the court shall certify and transmit to the appellate court a transcript and legal file of the evidence solely on the issue of indigence so as to permit review of that issue by the appellate court. Appellate review of the trial court's action on the motion filed under this section shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.

     12. The circuit court shall not entertain successive motions.

     Section 13. 1. When a motion is filed as provided in section 12 of this act to set aside a sentence of death, the court shall find on the record whether the movant is indigent. If the movant is indigent, the court shall cause to be appointed two counsel to represent the movant. If movant seeks to reject the appointment of counsel, the court shall find on the record, after a hearing, if necessary, whether the movant is able to competently decide whether to accept or reject the appointment and whether the movant rejected the offer with the understanding of its legal consequences. Unless the movant is so competent and understands the legal consequences, movant shall not be permitted to reject the appointment of counsel.

     2. All counsel appointed as provided in this section shall be members of The Missouri Bar or shall be admitted to practice in the particular case as provided in Missouri supreme court rule 9. At least one of the counsel shall meet the following qualifications:

     (1) Have attended and successfully completed within two years immediately preceding the appointment at least twelve hours of training or educational programs on the postconviction phase of a criminal case and federal and state aspects of cases in which the death penalty is sought; and

     (2) Have at least three years litigation experience in the field of criminal law; and

     (3) Have participated as counsel or cocounsel to final judgment in at least five postconviction motions involving class A felonies in either state or federal trial courts; and

     (4) Have participated in either state or federal court as counsel or cocounsel to final judgment in at least:

     (a) Three felony jury trials; or

     (b) Five direct criminal appeals in felony cases.

Counsel shall certify to the state public defender in such form as the defender may require that counsel meets the qualifications of this section prior to filing counsel's entry of appearance in the case.

     3. Counsel appointed to represent the movant shall not have represented the movant at trial or on the direct appeal therefrom.

     4. As to any counsel appointed as provided in this section, the state public defender shall provide counsel with reasonable compensation and shall provide reasonable and necessary litigation expenses.

     Section 14. 1. A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this section. This section provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated. The procedure to be followed for motions filed pursuant to this section is governed by the rules of civil procedure insofar as applicable.

     2. A person seeking relief pursuant to this section shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40. If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued. If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections. No cost deposit shall be required. Failure to file a motion within the time provided by this section shall constitute a complete waiver of any right to proceed pursuant to this section and a complete waiver of any claim that could be raised in a motion filed pursuant to this section.

     3. Movant shall file the motion and two copies thereof with the clerk of the trial court. The clerk shall immediately deliver a copy of the motion to the prosecutor. Upon receipt of the motion, the clerk shall notify the sentencing judge and shall notify the court reporter to prepare and file the complete transcript of the trial if the transcript has not yet been prepared or filed. If the motion is filed by an indigent pro se movant, the clerk shall forthwith send a copy of the motion to the counsel who is appointed to represent the movant.

     4. The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

     5. When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that:

     (1) All facts supporting the claims are asserted in the pro se motion; and

     (2) All claims known to the movant are alleged in the pro se motion.

The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.

     6. For good cause shown, counsel may be permitted to withdraw upon the filing of an entry of appearance by successor counsel. If appointed counsel is permitted to withdraw, the court shall cause new counsel to be appointed. If an indigent movant is seeking to set aside a death sentence, successor counsel shall have at least the same qualifications as required by section 15 of this act as the withdrawing counsel.

     7. Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference material contained in any previously filed motion. If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

     (1) The date both a complete transcript has been filed in the trial court and counsel is appointed; or

     (2) The date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

     (3) The date both the mandate of the appellate court is issued and counsel is appointed; or

     (4) The date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

The court may extend the time for filing the amended motion for one additional period not to exceed thirty days. Any response to the motion by the prosecutor shall be filed within thirty days after the date an amended motion is required to be filed.

     8. If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held. In such case, the court shall issue findings of fact and conclusions of law as provided in subsection 10 of this section.

     9. At any hearing ordered by the court the movant need not be present. The court may order that testimony of the movant shall be received by deposition. The hearing shall be on the record and shall be confined to the claims contained in the last timely filed motion. The court may continue the hearing upon a showing of good cause. The movant has the burden of proving the movant's claims for relief by a preponderance of the evidence.

     10. The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was illegal, or that there was a denial or infringement of the rights given movant by the constitution of Missouri or the constitution of the United States as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.

     11. An order sustaining or overruling a motion filed under the provisions of this section shall be deemed a final judgment for purposes of appeal by the movant or the state. If the court finds that a movant allowed an appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review. When the appeal is taken, the circuit court shall order the official court reporter to promptly prepare the transcript necessary for appellate review without requiring a letter from the movant's counsel ordering the same. If the sentencing court finds against the movant on the issue of indigence and the movant so requests, the court shall certify and transmit to the appellate court a transcript and legal file of the evidence solely on the issue of indigence so as to permit review of that issue by the appellate court. Appellate review of the trial court's action on the motion filed pursuant to this section shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.

     12. The circuit court shall not entertain successive motions.

     Section 15. 1. When a motion is filed as provided in section 14 of this act to set aside a sentence of death, the court shall find on the record whether the movant is indigent. If the movant is indigent, the court shall cause to be appointed two counsel to represent the movant. If movant seeks to reject the appointment of counsel, the court shall find on the record, after a hearing, if necessary, whether the movant is able to competently decide whether to accept or reject the appointment and whether the movant rejected the offer with the understanding of its legal consequences. Unless the movant is so competent and understands the legal consequences, movant shall not be permitted to reject the appointment of counsel.

     2. All counsel appointed as provided in this section shall be members of The Missouri Bar or shall be admitted to practice in the particular case as provided in Missouri supreme court rule 9. At least one of the counsel shall meet the following qualifications:

     (1) Have attended and successfully completed within two years immediately preceding the appointment at least twelve hours of training or educational programs on the postconviction phase of a criminal case and federal and state aspects of cases in which the death penalty is sought; and

     (2) Have at least three years litigation experience in the field of criminal law; and

     (3) Have participated as counsel or cocounsel to final judgment in at least five postconviction motions involving class A felonies in either state or federal trial courts; and

     (4) Have participated in either state or federal court as counsel or cocounsel to final judgment in at least:

     (a) Three felony jury trials; or

     (b) Five direct criminal appeals in felony cases.

Counsel shall certify to the state public defender in such form as the defender may require that counsel meets the qualifications of this section prior to filing counsel's entry of appearance in the case.

     3. Counsel appointed to represent the movant shall not have represented the movant at trial or on the direct appeal therefrom.

     4. As to any counsel appointed as provided in this section, the state public defender shall provide counsel with reasonable compensation and shall provide reasonable and necessary litigation expenses.