Order dated January 28, 2002, re: Rules 21, 22, 23, 27.09 and 84.04(h)

Your Missouri Courts - Supreme Court

Home

Supreme Court

Court of Appeals

Circuit Courts

Courts Administrator

Contact Us

Order dated January 28, 2002, re: Rules 21, 22, 23, 27.09 and 84.04(h)

SUPREME COURT OF MISSOURI
en banc

January 28, 2002

Effective January 1, 2003

In re:
(1) Repeal of Rule 21, entitled “Procedure Applicable to Misdemeanors Only,” consisting of subdivisions 21.01 to 21.10, inclusive, and in lieu thereof adoption of a new Rule 21, entitled “Procedure Applicable to Misdemeanors Only,” consisting of subdivisions 21.01 to 21.10, inclusive.
(2) Repeal of Rule 22, entitled “Procedure Applicable to Felonies Only,” consisting of subdivisions 22.01 to 22.08, inclusive, and in lieu thereof adoption of a new Rule 22, entitled “Procedure Applicable to Felonies Only,” consisting of subdivisions 22.01 to 22.08, inclusive.
(3) Repeal of Rule 23, entitled “Misdemeanors or Felonies – Indictment or Information,” consisting of subdivisions 23.01 to 23.11, inclusive, and in lieu thereof adoption of a new Rule 23, entitled “Misdemeanors or Felonies – Indictment or Information,” consisting of subdivisions 23.01 to 23.11, inclusive.
(4) Adoption of a new subdivision 27.09, entitled “Juror Confidentiality,” of Rule 27, entitled “Misdemeanors or Felonies – Trial.”
(5) Repeal of subdivision 84.04(h), entitled “Appendix,” of Rule 84, entitled “Procedure in Appellate Courts,” and in lieu thereof adoption of a new subdivision 84.04(h), entitled “Appendix.”

O R D E R

1. It is ordered that effective January 1, 2003, Rule 21, consisting of subdivisions 21.01 to 21.10, inclusive, be and the same is hereby repealed and a new Rule 21, consisting of subdivisions 21.01 to 21.10, inclusive, adopted in lieu thereof to read as follows:

RULE 21. PROCEDURE APPLICABLE TO MISDEMEANORS ONLY

21.01 MISDEMEANORS - INDICTMENT OR INFORMATION

All misdemeanors shall be prosecuted by indictment or information.

21.02 MISDEMEANORS – INFORMATION – PROSECUTING

ATTORNEY

The prosecuting attorney may file an information charging the commission of a misdemeanor based upon the prosecutor's information and belief that the offense was committed. The information shall be supported by a statement of probable cause as prescribed by Rule 21.04.

21.03 MISDEMEANORS - SUMMONS OR WARRANT OF ARREST –

WHEN ISSUED

(a) When an information is filed pursuant to Rule 21.02, a summons shall be issued unless the court finds that sufficient facts have been stated to show probable cause that a misdemeanor has been committed and that there are reasonable grounds to believe that:

(1) The defendant will not appear upon the summons; or

(2) The defendant 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.

(b) When an indictment charging the commission of a misdemeanor is returned, either a summons or warrant for arrest may be issued.

21.04 MISDEMEANORS - STATEMENT OF PROBABLE CAUSE –

CONTENTS

A statement of probable cause must be in writing and shall:

(a) 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;

(b) State the date and place of the crime as definitely as can be done;

(c) State the facts that support a finding of probable cause to believe a crime was committed and that the accused committed it;

(d) State that the facts contained therein are true; and

(e) Be signed and on a form bearing notice that false statements made therein are punishable by law.

21.05 MISDEMEANORS – SUMMONS - CONTENTS

The summons shall:

(a) Be in writing and in the name of the State of Missouri;

(b) State the name of the person summoned;

(d) Be signed by a judge or by a clerk of the court when directed by the judge for a specific summons; and

(e) Command the person to appear before the court at a stated time and place in response thereto.

21.06 MISDEMEANORS - WARRANT OF ARREST - CONTENTS

(a) The warrant of arrest must be in writing and issued in the name of the State of Missouri. 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 offense charged in the information or indictment;

(3) State the date when issued and the county 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.

21.07 MISDEMEANORS – CORPORATIONS - SUMMONS

When an information or indictment charges a corporation with the commission of a misdemeanor, a summons shall be issued.

21.08 MISDEMEANORS - SUMMONS AND WARRANT OF ARREST

- 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 in 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 the defendant has committed a misdemeanor, the court may issue an arrest warrant.

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 misdemeanor charged and the fact that a warrant has been issued.

21.09 MISDEMEANORS - APPEARANCE UNDER WARRANT

BEFORE JUDGE

A person arrested under a warrant for any misdemeanor 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.

21.10 MISDEMEANORS - INITIAL PROCEEDINGS BEFORE JUDGE

Upon the defendant's initial appearance, the judge shall inform the defendant of the misdemeanor charged, the right to retain counsel, the right to request the appointment of counsel if the defendant is unable to retain counsel, and 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.

2. It is ordered that effective January 1, 2003, Rule 22, consisting of subdivisions 22.01 to 22.08, inclusive, be and the same is hereby repealed and a new Rule 22, consisting of subdivisions 22.01 to 22.08, inclusive, adopted in lieu thereof to read as follows:

RULE 22. PROCEDURE APPLICABLE TO FELONIES ONLY

22.01 FELONIES – PROCEEDINGS - HOW INITIATED
Felony proceedings may be initiated by complaint or by indictment.

22.02 FELONIES - COMPLAINT
A complaint must be in writing and shall:
(a) State the name of the court;
(b) 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;
(c) State the facts constituting the felony;
(d) State the date and place of the felony as definitely as can be done;
(e) Be supported by a statement of probable cause as prescribed by Rule 22.03; and
(f) Be signed by the prosecuting attorney on information and belief that the offense was committed.

22.03 FELONIES - STATEMENT OF PROBABLE CAUSE –
CONTENTS
A statement of probable cause must be in writing and shall:
(a) 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;
(b) State the date and place of the crime as definitely as can be done;
(c) State the facts that support a finding of probable cause to believe a crime was committed and that the accused committed it;
(d) State the facts contained therein are true; and
(e) Be signed and on a form bearing notice that false statements made therein are punishable by law.

22.04 FELONIES - WARRANT OF ARREST - WHEN ISSUED
(a) Unless the court orders the issuance of a summons, a warrant for the arrest of the defendant shall be issued:
(1) Upon the filing of a complaint and finding by the court that sufficient facts have been stated therein to show probable cause that a felony has been committed by the defendant, or
(2) Upon the return of an indictment charging the commission of a felony.
(b) When a complaint or an indictment charges a corporation with the commission of a felony, a summons shall be issued.

22.05 FELONIES - WARRANT OF ARREST - CONTENTS
(a) The warrant of arrest must be in writing and issued in the name of the State of Missouri. 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 accused can be identified with reasonable certainty;
(2) Describe the felony charged in the complaint or indictment;
(3) State the date when issued and the county 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 a court when directed by the judge for a specific warrant.

22.06 FELONIES - SUMMONS AND WARRANTS OF ARREST –
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 in Rule 54.13 or Rule 54.14.
If the defendant fails to appear in response to the summons and upon finding of probable cause that the defendant has committed a felony, the court may issue an arrest warrant.
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 felony charged and the fact that a warrant has been issued.

22.07 FELONIES - APPEARANCE UNDER WARRANT BEFORE
JUDGE
A person arrested under a warrant for any felony 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.

22.08 FELONIES - INITIAL PROCEEDINGS BEFORE JUDGE
Upon the defendant's initial appearance, the judge shall inform the defendant of the felony charged, the right to retain counsel, the right to request the appointment of counsel if the defendant is unable to retain counsel, and 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.

22.09 FELONIES - PRELIMINARY HEARING

(a)

Preliminary Hearing

. After the filing of a felony complaint, a preliminary hearing shall be held within a reasonable time. At the preliminary hearing the defendant shall not be called upon to plead.

If the defendant waives preliminary hearing, the judge shall order the defendant to appear to answer to the charge.

(b)

Conduct of Hearing and Finding by Judge

. If the defendant does not waive preliminary hearing, the hearing shall be held. The defendant may cross-examine witnesses and may introduce evidence.

If the judge finds probable cause to believe that a felony has been committed and that the defendant has committed it, the judge shall order the defendant to appear and answer to the charge; otherwise, the judge shall discharge the defendant.

(c)

Defendant to Appear in Court to Answer the Charge

. If the defendant is held to answer to the charge, the judge shall order the defendant to appear in the appropriate division on a day certain as soon as practicable, but not more than 40 days after completion of the preliminary hearing.

Within five days after concluding the proceedings, the judge shall cause all papers in the proceeding and any bail posted by the defendant to be transmitted to that division.

22.10 FELONIES – HOMICIDE - RECORD OF PRELIMINARY

HEARING

In all cases of homicide, a verbatim record of the testimony at the preliminary hearing shall be made. It shall be transcribed upon the written request of the state or defendant.

3. It is ordered that effective January 1, 2003, Rule 23, consisting of subdivisions 23.01 to 23.11, inclusive, be and the same is hereby repealed and a new Rule 23, consisting of subdivisions 23.01 to 23.11, inclusive, adopted in lieu thereof to read as follows:

RULE 23. MISDEMEANORS OR FELONIES - INDICTMENT OR INFORMATION

23.01 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - FORM OF

(a) The indictment or information shall be in writing, signed by the prosecuting attorney, and filed in the court having jurisdiction of the offense. The indictment shall also be signed by the foreperson of the grand jury.

(b) The indictment or 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 elements of the offense charged, including facts necessary for any enhanced punishment;

(3) State the date and place of the offense charged as definitely as can be done. If multiple counts charge the same offense on the same date or during the same time period, additional facts or details to distinguish the counts shall be stated;

(4) Cite the statute alleged to have been violated and the statutes that fix the penalty or punishment therefor; and

(5) State the name and degree, if any, of the offense charged.

All indictments or informations that are substantially consistent with the forms of indictments or informations that have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).

(c) The name of the defendant, if known, shall appear in the caption of an indictment or information, and thereafter the word "defendant" wherever used in the indictment or information shall refer to the defendant named in the caption.

(d) Allegations made in one count of an indictment or information may be incorporated by reference in another count.

(e) The names of all material witnesses for the prosecution shall be listed except rebuttal witnesses and witnesses who will appear upon the trial for the production or identification of public records. Additional witnesses may be listed at any time after notice to the defendant upon order of the court.

(f) A copy of a document may be attached to, and incorporated in, an indictment or information by reference.

23.02 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - MANNER OF PLEADING CERTAIN

MATTERS

(a)

Venue

. An indictment or information may allege the venue of the offense charged by stating the name of the county or other jurisdiction in the caption.

(b)

Joint Ownership

. An indictment or information charging that an offense has been committed affecting property belonging to more than one owner may allege that such property belongs to any one or more of them.

(c)

Describing Instruments or Property and the Value Thereof

. An indictment or information charging an offense against, or involving, any instrument or property may describe the instrument or property by the name or designation by which it is usually known, and the value thereof need not be alleged unless such allegation is necessary to charge the offense.

(d)

Describing Instruments or Plates

. An indictment or information charging an unlawful engraving or the making of any material upon which the whole or any part of any instrument is engraved or printed may describe the instrument, plate, paper, or other material by the name or designation by which it is usually known.

(e)

Describing Money or Notes

. An indictment or information making an allegation as to any money or note issued by any bank or under any law of the United States may describe such money or note as "money" without specifying any particular money or note.

(f)

Intent to Injure, Cheat, or Defraud

. An indictment or information charging an offense, a necessary element of which is an intent to injure, cheat, or defraud, may allege that the defendant did an act with such an intent without naming the particular person or persons intended to be injured, cheated, or defrauded.

(g)

Principal and Aider Liability

. An indictment or information need not allege whether the defendant is being charged as a principal or as an accessory.

(h)

Alternative Counts

. An indictment or information charging different offenses in the alternative shall state that the offense charged in the later count is charged in the alternative to the offense charged in the specified earlier count.

23.03 FELONIES – INFORMATION - TIME FOR FILING

An information charging a felony shall be filed not later than ten days after the date of the order requiring the defendant to answer to the charge. The court having jurisdiction of the offense may extend the time for good cause shown.

23.04 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - BILL OF PARTICULARS – MOTION –

AMENDMENTS

When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare a defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

23.05 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - JOINDER OF OFFENSES

All offenses that are of the same or similar character or based 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 indictment or information in separate counts.

23.06 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - JOINDER OF DEFENDANTS

Two or more defendants may be charged in the same indictment or 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 offense or offenses. 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.

23.07 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - INCORRECT NAME OF DEFENDANT

Any defendant charged in an indictment or information under an incorrect name may furnish the defendant's correct name, and the correct name shall be substituted in the indictment or information. Defendant's failure to furnish the correct name shall not invalidate the proceedings.

23.08 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - AMENDMENT OR SUBSTITUTION - DELAY

Any information may be amended or an information may be substituted for an indictment at any time before verdict or finding if:

(a) No additional or different offense is charged, and

(b) A defendant's substantial rights are not thereby prejudiced.

No such amendment or substitution 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 or substitution.

23.09 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - UNAVAILABILITY OF ORIGINAL

If the original indictment or information is unavailable for any reason, a copy, certified by the clerk of the court or by the prosecuting attorney, may be substituted.

23.10 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - TWO OR MORE FOR SAME OFFENSE

(a)

Offense that can be Commenced in More than one County

. If a criminal proceeding is commenced in a court having jurisdiction thereof, no other action for the same offense shall be commenced in a court in a different county so long as the criminal proceeding first commenced is pending.

(b)

Multiple Indictments or Informations for the Same Offense in the Same County

. If there are two or more indictments or informations pending against the defendant for the same offense in the same county, the indictment or information last filed shall supersede all indictments or informations previously filed.

23.11 MISDEMEANORS OR FELONIES - INDICTMENT OR

INFORMATION - NONPREJUDICIAL DEFECTS

An indictment or information shall not be invalid, nor shall the trial, judgment, or other proceedings on the indictment or information be stayed, because of any defect that does not prejudice the substantial rights of the defendant.

4. It is ordered that effective January 1, 2003, subdivision 27.09 of Rule 27 be and the same is hereby adopted to read as follows:

27.09. JUROR CONFIDENTIALITY

Jury lists and questionnaires maintained by the court in criminal cases shall not be accessible except to the court and the parties. Upon conclusion of the trial, the jury lists and questionnaires shall be retained under seal by the court except as required to create the record on appeal or for post-conviction litigation. Information collected by the court or court personnel about a venireperson is confidential and shall not be disclosed by the parties or their lawyers except on application to the trial court and a showing of good cause.

5. It is ordered that effective January 1, 2003, subdivision 84.04(h) of Rule 84 be and the same is hereby repealed and a new subdivision 84.04(h) adopted in lieu thereof to read as follows:

84.04 BRIEFS -- CONTENTS

* * *

(h)

Appendix.

A party's brief shall contain or be accompanied by an appendix containing the following materials, unless the material has been included in a previously filed appendix:

(1) The judgment, order, or decision in question, including the relevant findings of fact and conclusions of law filed in a judge-tried case or by an administrative agency;

(2) The complete text of all statutes, ordinances, rules of court, or agency rules claimed to be controlling as to a point on appeal; and

(3) The complete text of any instruction to which a point relied on relates.

An appendix also may set forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new cases or other pertinent authorities.

The appendix shall have a separate table of contents. If the appendix contains fewer than 30 pages, it shall be bound into the back of the party's brief. If the appendix is 30 pages or more, it shall be separately bound.

The pages in the appendix shall be numbered consecutively beginning with page A1. The pages in the appendix shall not be counted as a part of the brief. An appendix shall not be subject to rule 84.05(g) relating to disks.

The inclusion of any matter in an appendix does not satisfy any requirement to set out such matter in a particular section of the brief, except that instructions set out in the appendix need not be included in the brief.

6. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
7. It is ordered that this order be published in the South Western Reporter.

Day - to - Day

____________________________ RONNIE L. WHITE
Acting Chief Justice