Supreme Court of Missouri
en banc
December 18, 2018
Effective January 1, 2019
Effective January 1, 2019
In re:
Correction of order of June 29, 2018, repealing and adopting provisions of Rule 37, entitled "Statutory and Ordinance Violations and Violation Bureaus," including repeal of subdivision 37.43, entitled "Ordinance Violation – Summons or Arrest Warrant – When Issued – Failure to Appear;" subdivision 37.435, entitled "Statement of Probable Cause;" subdivision (f) of subdivision 37.64, entitled "Sentence and Judgment;" subdivision 37.65, entitled "Imposition and Payment of Fines, Fees, and Costs, and Contempt Proceedings;" and the heading title and subdivision 37.66, entitled "Sentence of Imprisonment – Transcript to Corrections Official," and in lieu thereof adoption of a new subdivision 37.43, entitled "Ordinance Violation – Summons or Arrest Warrant – When Issued – Failure to Appear;" a new subdivision 37.435, entitled "Statement of Probable Cause;" a new subdivision (f) of subdivision 37.64, entitled "Sentence and Judgment;" a new subdivision 37.65, entitled "Imposition and Payment of Fines, Fees, and Costs, and Contempt Proceedings;" and a new heading title and a new subdivision 37.66, entitled "Sentence of Incarceration – Transcript to Corrections Official."
ORDER
1. The Court hereby corrects Rule 37 so that, as corrected, effective January 1, 2019, subdivision 37.43, subdivision 37.435, subdivision (f) of subdivision 37.64, subdivision 37.65, and the heading title and subdivision 37.66 shall read as follows:
37.43 ORDINANCE VIOLATION – SUMMONS OR ARREST WARRANT –WHEN ISSUED – FAILURE TO APPEAR
When an information charging the commission of an ordinance violation and a statement of probable cause are filed pursuant to Rule 37, 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 accused will not appear upon the summons, or a showing has been made to the court that the accused poses a danger to a victim, the community, or any other person.
If the court so finds, a warrant for the arrest of the accused may be issued.
When an information charging the commission of an ordinance violation and a statement of probable cause are filed pursuant to Rule 37, 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 accused will not appear upon the summons, or a showing has been made to the court that the accused poses a danger to a victim, the community, or any other person.
If the court so finds, a warrant for the arrest of the accused may be issued.
37.435 STATEMENT OF PROBABLE CAUSE
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 ordinance violation as definitely as can be done;
(c) State the facts that support a finding of probable cause to believe an ordinance violation was committed and that the accused committed it;
(d) If a warrant will be requested, state the facts, if any, that support a finding of reasonable grounds to believe the accused will not appear upon the summons or that the defendant poses a danger to a victim, the community, or any other person;
(e) State the facts contained therein are true;
(f) Be signed and on a form bearing notice that false statements made therein are punishable by law; and
(g) Shall accompany an information when an arrest warrant is sought.
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 ordinance violation as definitely as can be done;
(c) State the facts that support a finding of probable cause to believe an ordinance violation was committed and that the accused committed it;
(d) If a warrant will be requested, state the facts, if any, that support a finding of reasonable grounds to believe the accused will not appear upon the summons or that the defendant poses a danger to a victim, the community, or any other person;
(e) State the facts contained therein are true;
(f) Be signed and on a form bearing notice that false statements made therein are punishable by law; and
(g) Shall accompany an information when an arrest warrant is sought.
37.64 SENTENCE AND JUDGMENT
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(f) Stay of Sentence. The court in which any judgment, whether of incarceration 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. 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.
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37.65 IMPOSITION AND PAYMENT OF FINES, FEES, AND COSTS, AND CONTEMPT PROCEEDINGS
(a) Judicial Inquiry as to Ability to Pay. When a fine, fee, or cost is assessed, or thereafter any time a fine, fee, or cost is due, if the defendant states the defendant is unable to pay the amount then due, the judge shall inquire as to the defendant's ability to pay.
(b) Defendant Has Ability to Pay But Unable to Pay When Assessed or Due. If the judge finds the defendant has the ability to pay but is unable to pay the amount when assessed or due, the judge shall order a stay of execution on the payment and:
(c) Defendant Has No Ability to Pay. If the judge finds the defendant does not have the ability to pay the amount when assessed or due and is unable to acquire the resources to pay, the judge shall, after consideration of the violation, the defendant's financial circumstances, disabilities, driving restrictions, transportation limitations, and caregiving and employment responsibilities, impose alternative sanctions that may include, but are not limited to:
(d) Show Cause Order Requirements. When a defendant defaults in the payment of the fine, fee, or cost or fails to perform an ordered alternative sanction, the judge may issue an order to show cause for criminal contempt consistent with the due process requirements of Rule 36.01(b) on the motion of the prosecuting attorney or on the judge's own motion. The order to show cause for criminal contempt shall include:
(e) Summons or Arrest Warrant. The court shall issue a summons for the defendant's appearance on the order to show cause unless the defendant has previously failed to appear at a prior court date in the case. The summons shall have the order to show cause attached and may be served by the clerk mailing it to the defendant's last known address by first class mail. In the event the defendant has previously failed to appear or fails to appear on the summons, the court may issue a warrant to secure the defendant's appearance for a hearing on the order to show cause. Upon arrest, defendant is entitled to be conditionally released as provided in these rules.
(f) Incarceration after Hearing and Written Findings. A judge may not incarcerate the defendant for nonpayment of a fine, fee, or cost unless the judge holds a hearing, with adequate notice to the defendant, and makes one of the following written findings:
(g) Contempt Order, Punishment. If following the show cause hearing the judge makes written findings:
(h) Collection of Amount Due Following Failure to Pay. Upon default in the payment of an amount due or any installment thereof, the amount due may be collected by any means authorized by law for the enforcement of money judgments.
(a) Judicial Inquiry as to Ability to Pay. When a fine, fee, or cost is assessed, or thereafter any time a fine, fee, or cost is due, if the defendant states the defendant is unable to pay the amount then due, the judge shall inquire as to the defendant's ability to pay.
(b) Defendant Has Ability to Pay But Unable to Pay When Assessed or Due. If the judge finds the defendant has the ability to pay but is unable to pay the amount when assessed or due, the judge shall order a stay of execution on the payment and:
(1) Grant the defendant a specified period of time within which to pay the fine in full; or
(2) Provide for the payment of the fine on an installment basis under such terms and conditions as the judge may deem appropriate.
(2) Provide for the payment of the fine on an installment basis under such terms and conditions as the judge may deem appropriate.
(c) Defendant Has No Ability to Pay. If the judge finds the defendant does not have the ability to pay the amount when assessed or due and is unable to acquire the resources to pay, the judge shall, after consideration of the violation, the defendant's financial circumstances, disabilities, driving restrictions, transportation limitations, and caregiving and employment responsibilities, impose alternative sanctions that may include, but are not limited to:
(1) Waiver or suspension of imposition of any fine, fee, or cost or of the amount previously assessed and due;
(2) Imposition of a lower amount of any fine, fee, or cost or reduction of the amount previously assessed and due;
(3) Community service in lieu of any fine, fee, or cost; or
(4) Court-approved programs, e.g., driver skills, education, job skills, mental health or drug treatment in lieu of any fine, fee, or cost.
(2) Imposition of a lower amount of any fine, fee, or cost or reduction of the amount previously assessed and due;
(3) Community service in lieu of any fine, fee, or cost; or
(4) Court-approved programs, e.g., driver skills, education, job skills, mental health or drug treatment in lieu of any fine, fee, or cost.
(d) Show Cause Order Requirements. When a defendant defaults in the payment of the fine, fee, or cost or fails to perform an ordered alternative sanction, the judge may issue an order to show cause for criminal contempt consistent with the due process requirements of Rule 36.01(b) on the motion of the prosecuting attorney or on the judge's own motion. The order to show cause for criminal contempt shall include:
(1) The hearing date, time and location;
(2) The total amount claimed past due or alternative sanction ordered but not performed;
(3) Notice to the defendant that:
(2) The total amount claimed past due or alternative sanction ordered but not performed;
(3) Notice to the defendant that:
(i) If the show cause order was issued for failure to pay, the judge shall evaluate the defendant's ability to pay at the hearing and the defendant should bring any documentation or information the judge should consider in determining ability to pay;
(ii) If the defendant is unable to pay the defendant can request a payment alternative, including, but not limited to, community service and/or a reduction of the amount due;
(iii) The defendant may have the right to have counsel appointed if indigent; and
(iv) Incarceration for failure to pay may result only if alternative measures are not adequate to meet the municipality's or county's interest in punishment and deterrence or the judge finds the defendant had the ability to pay and willfully failed to do so.
(ii) If the defendant is unable to pay the defendant can request a payment alternative, including, but not limited to, community service and/or a reduction of the amount due;
(iii) The defendant may have the right to have counsel appointed if indigent; and
(iv) Incarceration for failure to pay may result only if alternative measures are not adequate to meet the municipality's or county's interest in punishment and deterrence or the judge finds the defendant had the ability to pay and willfully failed to do so.
(e) Summons or Arrest Warrant. The court shall issue a summons for the defendant's appearance on the order to show cause unless the defendant has previously failed to appear at a prior court date in the case. The summons shall have the order to show cause attached and may be served by the clerk mailing it to the defendant's last known address by first class mail. In the event the defendant has previously failed to appear or fails to appear on the summons, the court may issue a warrant to secure the defendant's appearance for a hearing on the order to show cause. Upon arrest, defendant is entitled to be conditionally released as provided in these rules.
(f) Incarceration after Hearing and Written Findings. A judge may not incarcerate the defendant for nonpayment of a fine, fee, or cost unless the judge holds a hearing, with adequate notice to the defendant, and makes one of the following written findings:
(1) The failure to pay was not due to an inability to pay but was willful or due to a failure to make bona fide efforts to pay; or
(2) The failure to pay was not the fault of the defendant and alternatives to incarceration are not adequate in the circumstances of the case to meet the municipality's or county's interest in punishment and deterrence.
(2) The failure to pay was not the fault of the defendant and alternatives to incarceration are not adequate in the circumstances of the case to meet the municipality's or county's interest in punishment and deterrence.
(g) Contempt Order, Punishment. If following the show cause hearing the judge makes written findings:
(1) that the defendant was given adequate notice of the hearing as required by this rule,
(2) that the defendant had the opportunity to be represented by counsel and a reasonable time to prepare a defense,
(3) that the defendant had a meaningful opportunity to present evidence and argument at the hearing, and
(4) setting out the essential facts constituting the contempt, the judge may impose punishment for failure to pay, including incarceration for a term not to exceed 30 days when findings are made as required by (f) of this rule. The judge may provide in the order that payment or satisfaction of the amount due at any time will entitle the defendant to release from incarceration or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of the amount due. If the judge finds the defendant's failure to comply with an order for an alternative sanction was willful, the judge may impose punishment for criminal contempt as authorized by law.
(2) that the defendant had the opportunity to be represented by counsel and a reasonable time to prepare a defense,
(3) that the defendant had a meaningful opportunity to present evidence and argument at the hearing, and
(4) setting out the essential facts constituting the contempt, the judge may impose punishment for failure to pay, including incarceration for a term not to exceed 30 days when findings are made as required by (f) of this rule. The judge may provide in the order that payment or satisfaction of the amount due at any time will entitle the defendant to release from incarceration or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of the amount due. If the judge finds the defendant's failure to comply with an order for an alternative sanction was willful, the judge may impose punishment for criminal contempt as authorized by law.
(h) Collection of Amount Due Following Failure to Pay. Upon default in the payment of an amount due or any installment thereof, the amount due may be collected by any means authorized by law for the enforcement of money judgments.
37.66 SENTENCE OF INCARCERATION – TRANSCRIPT TO CORRECTIONS OFFICIAL
When a defendant is sentenced to incarceration, 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.
When a defendant is sentenced to incarceration, 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.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
4. The state courts administrator shall furnish a copy of this order to each circuit court presiding judge, each municipal division court judge, each municipal division court clerk, and such other persons as she may direct.
Day – to – Day
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ZEL M. FISCHER
Chief Justice
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ZEL M. FISCHER
Chief Justice