HB 2747

                                SECOND REGULAR SESSION
                                          [PERFECTED]
                         HOUSE COMMITTEE SUBSTITUTE FOR
        HOUSE BILL NOS. 2747 & 2047
                          103RD GENERAL ASSEMBLY
4181H.05P  JOSEPH ENGLER, Chief Clerk
                                           AN ACT
To repeal section 565.030, RSMo, and to enact in lieu thereof five new sections relating to
       proceedings resulting from criminal conduct.
Be it enacted by the General Assembly of the state of Missouri, as follows:
        Section A. Section 565.030, RSMo, is repealed and five new sections enacted in lieu
2 thereof, to be known as sections 476.411, 565.030, 610.141, 610.143, and 610.144, to read as
3 follows:
        476.411. Beginning January 1, 2031, and each year thereafter, the office of state
2 courts administrator and the Missouri state highway patrol shall submit a report to the
3 joint committee on the justice system, the house judiciary committee or any successor
4 committee, and the senate judiciary and civil and criminal jurisprudence committee or
5 any successor committee providing statistical information for the prior year, arranged
6 by judicial circuit and county, of:
7(1) The number of clean slate eligible offenses as defined under section 610.141
8 identified by the Missouri state highway patrol under subsection 2 of section 610.141
9 and transmitted to the courts;
10(2) The number of identified clean slate eligible offenses to which a prosecuting
11 attorney filed an objection under subsection 3 of section 610.141; and
12(3) The number of orders of expungement issued under section 610.141.
13
14 The data shall be aggregated by race, sex, age, circuit, county, and offense type and level
15 if such data is available.
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language.
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        565.030. 1. Where murder in the first degree is charged but not submitted or where
2 the state waives the death penalty, the submission to the trier and all subsequent proceedings
3 in the case shall proceed as in all other criminal cases.
42. Where murder in the first degree is submitted to the trier without a waiver of the
5 death penalty, the trial shall proceed in two stages before the same trier. At the first stage the
6 trier shall decide only whether the defendant is guilty or not guilty of any submitted offense.
7 The issue of punishment shall not be submitted to the trier at the first stage. If an offense is
8 charged other than murder in the first degree in a count together with a count of murder in the
9 first degree, the trial judge shall assess punishment on any such offense according to law, after
10 the defendant is found guilty of such offense and after he finds the defendant to be a prior
11 offender pursuant to chapter 558.
123. If murder in the first degree is submitted and the death penalty was not waived but
13 the trier finds the defendant guilty of a lesser homicide, a second stage of the trial shall
14 proceed as in all other criminal cases. The attorneys may then argue as in other criminal cases
15 the issue of punishment, after which the trier shall assess and declare the punishment as in all
16 other criminal cases.
174. If the trier at the first stage of a trial where the death penalty was not waived finds
18 the defendant guilty of murder in the first degree, a second stage of the trial shall proceed at
19 which the only issue shall be the punishment to be assessed and declared. Evidence in
20 aggravation and mitigation of punishment, including but not limited to evidence supporting
21 any of the aggravating or mitigating circumstances listed in subsection 2 or 3 of section
22 565.032, may be presented subject to the rules of evidence at criminal trials. Such evidence
23 may include, within the discretion of the court, evidence concerning the murder victim and
24 the impact of the offense upon the family of the victim and others. Rebuttal and surrebuttal
25 evidence may be presented. The state shall be the first to proceed. If the trier is a jury it shall
26 be instructed on the law. The attorneys may then argue the issue of punishment to the jury,
27 and the state shall have the right to open and close the argument. The trier shall assess and
28 declare the punishment at life imprisonment without eligibility for probation, parole, or
29 release except by act of the governor:
30(1) If the trier finds by a preponderance of the evidence that the defendant is
31 intellectually disabled; or
32(2) If the trier does not find beyond a reasonable doubt at least one of the statutory
33 aggravating circumstances set out in subsection 2 of section 565.032; or
34(3) If the trier [concludes that there is evidence in mitigation of punishment, including
35 but not limited to evidence supporting the statutory mitigating circumstances listed in
36 subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation
37 of punishment found by the trier] does not determine by unanimous vote that the
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38 aggravating circumstance or circumstances previously found outweigh the mitigating
39 circumstance or circumstances including, but not limited to, those mitigating
40 circumstances set out in subsection 3 of section 565.032; or
41(4) If the trier decides under all of the circumstances not to assess and declare the
42 punishment at death. If the trier is a jury it shall be so instructed.
43
44 If the trier assesses and declares the punishment at death it shall, in its findings or verdict, set
45 out in writing the aggravating circumstance or circumstances listed in subsection 2 of section
46 565.032 which it found beyond a reasonable doubt. If the trier is a jury it shall be instructed
47 before the case is submitted that if it is unable to decide or agree upon the punishment the
48 court shall assess and declare the punishment at life imprisonment without eligibility for
49 probation, parole, or release except by act of the governor [or death. The court shall follow
50 the same procedure as set out in this section whenever it is required to determine punishment
51 for murder in the first degree].
525. Upon written agreement of the parties and with leave of the court, the issue of the
53 defendant's intellectual disability may be taken up by the court and decided prior to trial
54 without prejudicing the defendant's right to have the issue submitted to the trier of fact as
55 provided in subsection 4 of this section.
566. As used in this section, the terms "intellectual disability" or "intellectually
57 disabled" refer to a condition involving substantial limitations in general functioning
58 characterized by significantly subaverage intellectual functioning with continual extensive
59 related deficits and limitations in two or more adaptive behaviors such as communication,
60 self-care, home living, social skills, community use, self-direction, health and safety,
61 functional academics, leisure and work, which conditions are manifested and documented
62 before eighteen years of age.
637. The provisions of this section shall only govern offenses committed on or after
64 August 28, 2001.
         610.141. 1. As used in this section, section 476.411, and sections 610.143 and
2 610.144, unless the context otherwise indicates, the following terms mean:
3(1) "Automated expungement", technology-assisted, state-initiated bulk closing
4 of records in the manner established under section 610.120;
5(2) "Automated expungement technology", any information technology
6 equipment, software, systems, or services associated with automated expungement;
7(3) "Automated expungement technology implementation date", the date on
8 which moneys are appropriated for an automated system or software designed to
9 identify, review, and process clean slate eligible offense records maintained by the
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10 Missouri state highway patrol for expungement or sealing without requiring manual
11 initiation or oversight or July 1, 2029, whichever occurs later;
12(4) "Central repository", the Missouri state highway patrol central repository
13 for compiling and disseminating complete and accurate criminal history records;
14(5) "Clean slate eligible offense", a misdemeanor or felony not listed under
15 subsection 3 of section 610.140 for which an electronic record exists in the central
16 repository;
17(6) "Close" or "closed", to make records inaccessible to the general public and
18 to all individuals other than the defendant, except as provided under section 610.120
19 and chapter 43;
20(7) "Expunge" or "expunged", to close an electronic record in the manner
21 established under section 610.120, except the provisions of subsection 2 of section
22 610.120 that require documents to be retyped and rewritten, or blacked out and
23 recopied, if an agency determines that these provisions are not feasible in relation to
24 automated expungement;
25(8) "Final disposition", the date the person has completed his or her
26 incarceration, probation, or parole. In the event that the Missouri state highway
27 patrol cannot determine a final disposition based on data contained in the statewide
28 court automation system and the central repository, the Missouri state highway patrol
29 may use the date a person's imposed sentence would end, or, if the Missouri state
30 highway patrol cannot determine an imposed sentence, it may assume a person received
31 a maximum sentence and use the end date of such a sentence as the date of final
32 disposition;
33(9) "Petitioner", a person who has petitioned the court to have his or her
34 conviction or convictions expunged or a person whose conviction or convictions have
35 been automatically expunged under this section.
362. (1) Subject to the provisions in subsection 3 of this section, all electronic
37 records and files maintained in the central repository pertaining to clean slate eligible
38 offenses shall be closed in the manner established under section 610.120 without the
39 filing of a petition under section 610.140 in the following cases, subject to the limitations
40 contained in subdivisions (2), (3), and (4) of this subsection:
41(a) For misdemeanors, if one year has passed since final disposition and the
42 individual has not been convicted of any felony or misdemeanor criminal offense in
43 Missouri during that time;
44(b) For felony offenses, if three years have passed since final disposition and the
45 individual has not been convicted of any felony or misdemeanor criminal offense in
46 Missouri during that time;
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47(c) For all of an individual's offenses, if the individual has attained sixty-five
48 years of age and has not been convicted of any misdemeanors or felonies in Missouri
49 other than a technical violation of the terms of his or her probation or parole in the ten
50 immediately preceding years; or
51(d) All offenses for which the governor of Missouri has granted a full pardon.
52(2) Records pertaining to juvenile adjudications are not eligible for automated
53 expungement.
54(3) Records pertaining to any arrest, prosecution, or conviction of an offense
55 under chapters 301, 302, 303, 304, and 307 are not eligible for automated expungement.
56(4) No offense shall be eligible for automated expungement if a person has
57 charges pending that have been filed in a Missouri state court for which an individual
58 has not yet been sentenced during the period of review for clean slate eligibility as
59 described in subsection 3 of this section.
60(5) (a) An individual may be granted more than one expungement under this
61 section, except that during his or her lifetime the total number of offenses for which
62 expungement can be granted to the individual under this section or section 610.140 shall
63 not exceed the following limits:
64a. No more than two felony offenses; and
65b. No more than three misdemeanor offenses.
66(b) If an individual's electronic record contains more felonies or misdemeanors
67 than can be expunged during the individual's lifetime under paragraph (a) of this
68 subdivision, the individual shall not be eligible for automated expungement under this
69 section.
70(c) For purposes of determining lifetime limits on expungement under this
71 section:
72a. If the offenses were charged as counts in the same case, all such offenses and
73 violations shall count as only the highest-level offense in that case for purposes of
74 determining lifetime limits on expungement under this section. However, if one or more
75 counts in the same indictment or information or conduct committed were a part of the
76 same course of criminal conduct as an offense listed in subsection 3 of section 610.140,
77 the entire record shall not be expunged under this section;
78b. If the offenses were committed by an individual who has attained sixty-five
79 years of age and has not been convicted of any misdemeanors or felonies in the
80 immediate ten preceding years in Missouri, all clean slate eligible offenses shall be
81 expunged; and
82c. Only convictions contained within the central repository shall be considered
83 when determining eligibility under this section.
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84(d) The Missouri state highway patrol shall maintain records to ensure that a
85 person has not exceeded the limitations provided under this subsection. Nothing in this
86 section shall be construed to limit or impair the subsequent use of any record expunged
87 under this section for the purpose of any law enforcement or prosecutorial investigation
88 or activity, including any arrest or findings of guilt expunged under this section by a law
89 enforcement agency, criminal justice agency, prosecuting attorney, circuit attorney, or
90 municipal prosecuting attorney, including its use as a prior offense in a subsequent
91 criminal or civil investigation or prosecution.
923. (1) Six months after the automated expungement technology implementation
93 date, and on a quarterly basis thereafter, the Missouri state highway patrol shall identify
94 records that have become eligible in the last quarter and transmit, or otherwise make
95 accessible by electronic means, to every prosecuting agency in the state all clean slate
96 eligible offense records within one hundred days of the record becoming eligible for
97 automated expungement.
98(2) Prior to six months after the automated expungement technology
99 implementation date, the Missouri state highway patrol shall identify records that
100 would have been eligible for automated expungement under subsection 2 of this section.
101 Within twelve months after the automated expungement technology implementation
102 date, all such records shall be identified and expunged in the manner and according to
103 the time frames provided under this subsection. The order of such records to be
104 expunged shall be determined by the Missouri state highway patrol and the office of
105 state courts administrator.
106(3) Delinquent court costs, fines, fees, or other sums ordered by a court, except
107 restitution owed to a victim of a crime, shall not be considered by the court, prosecuting
108 agency, or central repository when determining eligibility of a record for automated
109 expungement under subsection 2 of this section. However, the office of state courts
110 administrator may seek a setoff of any income tax refund and lottery prize payouts
111 under section 488.5028 for all delinquent court costs, fines, fees, or other sums ordered
112 by a court relating to convictions expunged under subsection 2 of this section.
113(4) Each prosecuting agency in this state has no more than sixty days from the
114 day on which the notice described in subdivision (1) of this subsection is transmitted, or
115 otherwise made accessible by electronic means, to object to an automated expungement
116 and transmit such objection to the central repository. The prosecuting agency may
117 object to the automated expungement for any of the following reasons:
118(a) After reviewing the prosecuting agency's record, the record does not meet the
119 definition of a clean slate eligible offense;
120(b) The person has not paid court-ordered restitution to the victim;
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121(c) The person has charges pending against them in another case in Missouri; or
122(d) The prosecuting agency can furnish documentation that the person has
123 felony or misdemeanor charges pending against him or her in another state or has been
124 convicted of a felony or a misdemeanor in another state during the waiting periods
125 established under subdivision (1) of subsection 2 of this section.
126(5) If a prosecuting agency objects for a reason described in subdivision (4) of
127 this subsection, within sixty days of the day on which the notice described in subdivision
128 (1) of this subsection is transmitted, or otherwise made accessible by electronic means,
129 the record shall not be expunged.
130(6) If sixty days have passed without an objection from a prosecuting agency for
131 one of the reasons set forth under this subsection, the Missouri state highway patrol
132 shall transmit, or otherwise make accessible by electronic means, within fifteen days all
133 the records to be expunged to the office of state courts administrator for distribution to
134 the circuit courts.
135(7) Within fifteen days of receiving all records to be expunged from the Missouri
136 highway patrol, the office of state courts administrator shall transmit, or otherwise
137 make accessible by electronic means, copies of all records to be expunged to the circuit
138 court.
139(8) Within thirty days of receiving a notice to expunge, the circuit court shall
140 enter an order of expungement in the case record associated with the clean slate eligible
141 offense being expunged.
142(9) On a quarterly basis, each circuit court shall transmit, or otherwise make
143 accessible by electronic means, copies of all orders for expungement that the court issues
144 under this section to the office of state courts administrator.
145(10) Within thirty days of the order of expungement being entered and a copy
146 being transmitted to the office of state courts administrator, the office of state courts
147 administrator shall provide notice of the order of expungement to the prosecuting or
148 circuit attorneys, the department of corrections, and the Missouri state highway patrol.
149 The Missouri state highway patrol shall notify law enforcement agencies. Each entity
150 possessing records subject to the order shall close such records in the manner
151 established under section 610.120. The records shall be confidential from the date of
152 expungement and shall be made available only to the individuals or entities and for the
153 purposes set forth in subdivision (11) of this subsection.
154(11) (a) The Missouri state highway patrol shall retain a nonpublic record of the
155 order expunging a conviction or other notification regarding a conviction that was
156 automatically expunged under this section and of the record of the arrest, fingerprints,
157 conviction, and sentence of the person in the case to which the order or other
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158 notification applies. The nonpublic record shall be made available only to a court of
159 competent jurisdiction, the state public defender system, the department of corrections,
160 a law enforcement agency, a prosecuting attorney, the attorney general, the department
161 of revenue, or the governor upon request and only for the following purposes:
162a. To show that a person who has filed a petition to expunge a conviction has
163 previously had a conviction expunged under this section;
164b. The court's consideration in determining the sentence to be imposed upon
165 conviction for a subsequent offense that is punishable as a felony or by imprisonment
166 for more than one year;
167c. Consideration by the governor if a person whose conviction has been
168 expunged applies for a pardon for another offense;
169d. Consideration by the department of corrections or a law enforcement agency
170 if a person whose conviction has been expunged applies for employment with the
171 department of corrections or a law enforcement agency;
172e. Consideration by a court, law enforcement agency, prosecuting attorney, or
173 the attorney general in determining whether a person required to register under
174 sections 589.400 to 589.425 has committed an offense that requires registration under
175 sections 589.400 to 589.425, or in prosecuting a person for committing an offense
176 requiring registration under sections 589.400 to 589.425;
177f. Consideration by a court, law enforcement agency, prosecuting attorney, or
178 the attorney general for use in making determinations regarding charges, plea offers,
179 and sentencing, as applicable; or
180g. Consideration by any entity responsible for issuing commercial driver's
181 licenses for the purpose of meeting state and federal requirements to obtain commercial
182 driver's licenses.
183(b) A copy of the nonpublic record created under paragraph (a) of this
184 subdivision may be provided upon request to the person whose conviction is expunged
185 under this section upon payment of a fee determined and charged by the Missouri state
186 highway patrol.
187(c) The nonpublic record maintained under paragraph (a) of this subdivision is
188 exempt from disclosure under this chapter.
189(d) An entity shall not be liable for damages or subject to criminal penalties for
190 reporting a public record of conviction that has been expunged by court order or
191 operation of law prior to six months after the automated expungement technology
192 implementation date if that record was available as a public record on the date of the
193 report.
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194(e) The Missouri state highway patrol shall provide a consumer reporting agency
195 with information sufficient to accurately identify and delete records associated with the
196 clean slate eligible offense being expunged.
1974. Any court sentencing an individual for a clean slate eligible offense shall
198 provide the individual a document outlining the state's clean slate expungement
199 program at the time of sentencing.
2005. Any probation or parole office releasing an individual from supervision for a
201 clean slate eligible offense shall provide the individual a document outlining the state's
202 clean slate expungement program at the time of release.
2036. The provisions of this section shall apply retroactively to any arrest, charge,
204 trial, or conviction for which there is an electronic record regardless of the date that the
205 arrest was made, the charge or charges were brought, the trial occurred, or the
206 conviction was entered.
2077. Nothing in this section precludes an individual from filing a petition for
208 expungement of records under section 610.140 if an individual is eligible for automated
209 expungement under this section but such automated expungement has not yet occurred
210 or cannot occur.
2118. If it is determined that a conviction was improperly or erroneously expunged
212 under this section because the conviction was not eligible to be expunged under this
213 section, the court shall, on its own motion, reinstate the conviction.
2149. (1) Upon the entry of an order under section 610.140, or upon the automated
215 expungement of a conviction under this section, the petitioner, for purposes of the law, is
216 considered not to have been previously convicted, except as provided under this
217 subsection and subsection 10 of section 610.140.
218(2) The petitioner shall not be entitled to the remission of any fine, costs, or other
219 moneys paid as a consequence of a conviction that is expunged.
220(3) This section shall not affect the right of the petitioner to rely upon the
221 conviction to bar subsequent proceedings for the same offense.
222(4) This section shall not affect the right of a victim of an offense to bring or
223 defend a civil action for damages.
224(5) This section shall not create a right to commence an action for damages for
225 incarceration under the sentence that the petitioner served before the conviction is
226 expunged under this section.
227(6) This section shall not relieve any obligation to pay restitution owed to the
228 victim of an offense nor shall such section affect the jurisdiction of the convicting court
229 or the authority of any court order with regard to enforcing an order for restitution.
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230(7) A conviction, including any records relating to the conviction and any
231 records concerning a collateral action, that has been expunged under this section shall
232 not be used as evidence in an action for negligent hiring, admission, or licensure against
233 any person.
234(8) A conviction that is expunged under this section or section 610.140 may be
235 considered a prior conviction by a court, law enforcement agency, prosecuting attorney,
236 or the attorney general, as applicable, for purposes of charging a crime as a second or
237 subsequent offense or for sentencing under section 558.016.
23810. The office of state courts administrator shall collaborate with the Missouri
239 state highway patrol to establish and implement data-sharing procedures regarding the
240 information required under this section.
24111. Any person eligible for expungement under this section who has filed a
242 petition for expungement under section 610.140 shall be granted an expungement,
243 subject to subsection 3 of this section.
         610.143. 1. A credit bureau may report records of arrests, indictments pending
2 trial, and convictions of crimes for no longer than seven years from final disposition.
3 Records of arrests, indictments pending trial, and convictions of crimes shall no longer
4 be reported if at any time after a conviction it is learned that a full pardon or
5 expungement has been granted for that conviction, or at any time after an arrest or
6 indictment it is learned that a conviction did not result.
72. Any credit bureau or user of information that willfully fails to comply with
8 any requirement of this section with respect to any consumer is liable to that consumer
9 in an amount equal to:
10(1) Any actual damages sustained by the consumer as a result of the failure;
11(2) Punitive damages as the court may allow; and
12(3) In the case of any successful action under this section, costs of the action and
13 reasonable attorney's fees as determined by the court.
143. Any credit bureau or user of information that is negligent in failing to comply
15 with any requirement of this section with respect to any consumer is liable to that
16 consumer in an amount equal to:
17(1) Any actual damages sustained by the consumer as a result of the failure; and
18(2) In the case of any successful action under this section, costs of the action and
19 reasonable attorney's fees as determined by the court.
204. Injunctive relief shall be available to any consumer aggrieved by a violation or
21 a threatened violation of this section regardless of whether the consumer seeks any other
22 remedy under this section.
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235. An employer, volunteer organization, or landlord who employs, qualifies, or
24 otherwise engages an individual whose criminal history record has been expunged shall
25 be immune from liability for any claim arising out of the misconduct of the individual if
26 the misconduct relates to the portion of the criminal history record that has been
27 expunged.
286. A person granted an expungement shall disclose any expunged offense if the
29 disclosure of such information is necessary to complete any application for employment
30 with any:
31(1) Federally insured bank or savings institution or credit union or an affiliate of
32 such institution or credit union for the purpose of compliance with 12 U.S.C. Section
33 1829 and 12 U.S.C. Section 1785; or
34(2) Entity engaged in the business of insurance or any insurer for the purpose of
35 complying with 18 U.S.C. Section 1033, 18 U.S.C. Section 1034, or other similar law that
36 requires an employer engaged in the business of insurance to exclude applicants with
37 certain criminal convictions from employment.
        610.144. 1. (1) There is hereby created in the state treasury the "Missouri
2 Expungement Fund", which shall consist of moneys appropriated to it by the general
3 assembly and gifts, donations, grants, and bequests. The state treasurer shall be
4 custodian of the fund. In accordance with sections 30.170 and 30.180, the state treasurer
5 may approve disbursements. The fund shall be a dedicated fund and, upon
6 appropriation, moneys in this fund shall be used solely as provided in subsection 2 of
7 this section.
8(2) The state treasurer shall invest moneys in the fund in the same manner as
9 other funds are invested. Any interest and moneys earned on such investments shall be
10 credited to the fund.
112. The office of state courts administrator, the department of public safety, and
12 the information technology services division within the office of administration shall
13 expend moneys from the fund, upon appropriation, on the statewide court automation
14 case management system and the Missouri criminal history record information system
15 established under sections 43.500 to 43.530 for one or more of the following purposes:
16(1) Expenses that may be incurred to develop, establish, maintain, or operate
17 any information technology equipment, software, systems, or services associated with
18 the expungement or closing of records under Missouri law, including the development
19 and implementation of any technology-assisted, state-initiated bulk expungement or
20 sealing of records under Missouri law; or
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21    (2) The cost of necessary personnel or contractors.
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