Have you checked the Missouri Dangerous Felony Statute lately?

Missouri dangerous felony statute

Missouri dangerous felony statuteHave you checked the Missouri dangerous felony statute lately?

If not, make sure you do before you plead your client to a felony. Many felony offenses were added to the dangerous felony list in January 1, 2017, and case law suggests that the new statute applies to offenses that occurred before January 1, 2017.

Prior to January 1, 2017, the dangerous felony statute was found at RSMo. § 556.061(8), and it listed the following 17 offenses as dangerous felonies:

[T]he felonies of arson in the first degree, assault in the first degree, attempted forcible rape if physical injury results, attempted forcible sodomy if physical injury results, forcible rape, forcible sodomy, kidnapping, murder in the second degree, assault of a law enforcement officer in the first degree, domestic assault in the first degree, elder abuse in the first degree, robbery in the first degree, statutory rape in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, statutory sodomy in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, and, abuse of a child pursuant to subdivision (2) of subsection 3 of section 568.060, child kidnapping, and parental kidnapping committed by detaining or concealing the whereabouts of the child for not less than one hundred twenty days under section 565.153.

 

The 2017 version of the dangerous felony statute is found at RSMo. § 556.061(19), and it lists the following 26 offenses as dangerous felonies:

The felonies of arson in the first degree, assault in the first degree, attempted rape in the first degree if physical injury results, attempted forcible rape if physical injury results, attempted sodomy in the first degree if physical injury results, attempted forcible sodomy if physical injury results, rape in the first degree, forcible rape, sodomy in the first degree, forcible sodomy, assault in the second degree if the victim of such assault is a special victim as defined in subdivision (14) of section 565.002, kidnapping in the first degree, kidnapping, murder in the second degree, assault of a law enforcement officer in the first degree, domestic assault in the first degree, elder abuse in the first degree, robbery in the first degree, statutory rape in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, statutory sodomy in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, child molestation in the first or second degree, abuse of a child if the child dies as a result of injuries sustained from conduct chargeable under section 568.060, child kidnapping, parental kidnapping committed by detaining or concealing the whereabouts of the child for not less than one hundred twenty days under section 565.153, and an “intoxication-related traffic offense” or “intoxication-related boating offense” if the person is found to be a “habitual offender” or “habitual boating offender” as such terms are defined in section 577.001.

 

Why does it matter if an offense is a dangerous felony?

  • For most offenses, if an offender has no prior prison commitments, RSMo. § 558.019.2 (1) does not dictate a minimum prison term before an offender may be paroled.
  • For most offenses, if an offender has 1 prior prison commitment, he must serve 40% of his sentence before being paroled. See RSMo. § 558.019.2 (1).
  • For most offenses, if an offender has 2 prior prison commitments, he must serve 50%. See RSMo. § 558.019.2 (2).
  • For most offenses, if an offender has 3 prior prison commitments, he must serve 80%. See RSMo. § 558.019.2 (3).

But dangerous felonies have harsher punishments. Any offender who has been found guilty of a dangerous felony and is committed to the department of corrections “shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first.” In other words, even if a first-time offender has never been to prison before and would ordinarily have no statutory minimum percentage that he must serve prior to being paroled, that all changes if the first-time offender is found guilty of a dangerous felony. Then he must serve 85%.

But what if you are about to plead your client to a felony committed in 2015 that was not considered a dangerous felony in 2015 but is now a dangerous felony under the 2017 definition?

According to the Missouri Court of Appeals’ opinion in State v. Cannafax, 344 S.W.3d 279, 290-291 (Mo. App. 2011), a modification to the definition of “dangerous felony” that limits an offender’s opportunity for early release may lawfully be applied to him whether or not sufficient evidence showed the offenses were committed after the amendment. This is because Missouri’s parole statute creates no liberty interest in parole.

So remember to check the new dangerous felony definition to see if an offense is on the list before you plead a client.

 

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Erica Mynarich

Author Erica Mynarich

Erica Mynarich primarily represents people charged with crimes in federal court and in Missouri state courts. Erica has extensive training in trial advocacy, including Gerry Spence’s three-week Trial Lawyers College in Wyoming and the Trial Lawyers College’s graduate program. In 2016, Erica Mynarich was honored for her excellence in trial work by receiving the Missouri Bar Foundation’s Lon O. Hocker award.

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