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559.115. Appeals, probation not to be granted, when--probation granted after delivery to department of corrections, time limitation, assessment--one hundred twenty day program--notification to state,

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Appeals, probation not to be granted, when--probation granted afterdelivery to department of corrections, time limitation,assessment--one hundred twenty day program--notification to state,when, hearing--no probation in certain cases. 559.115.1.Neither probation nor parole shall be granted by thecircuit court between the time the transcript on appeal from the offender'sconviction has been filed in appellate court and the disposition of theappeal by such court. 2.Unless otherwise prohibited by subsection 5 of this section, acircuit court only upon its own motion and not that of the state or theoffender shall have the power to grant probation to an offender anytime upto one hundred twenty days after such offender has been delivered to thedepartment of corrections but not thereafter.The court may requestinformation and a recommendation from the department concerning theoffender and such offender's behavior during the period of incarceration.Except as provided in this section, the court may place the offender onprobation in a program created pursuant to section 217.777, RSMo, or mayplace the offender on probation with any other conditions authorized bylaw. 3.The court may recommend placement of an offender in a departmentof corrections one hundred twenty-day program.Upon the recommendation ofthe court, the department of corrections shall determine the offender'seligibility for the program, the nature, intensity, and duration of anyoffender's participation in a program and the availability of space for anoffender in any program.When the court recommends and receives placementof an offender in a department of corrections one hundred twenty-dayprogram, the offender shall be released on probation if the department ofcorrections determines that the offender has successfully completed theprogram except as follows.Upon successful completion of a treatmentprogram, the board of probation and parole shall advise the sentencingcourt of an offender's probationary release date thirty days prior torelease.The court shall release the offender unless such releaseconstitutes an abuse of discretion.If the court determined that there isan abuse of discretion, the court may order the execution of the offender'ssentence only after conducting a hearing on the matter within ninety to onehundred twenty days of the offender's sentence.If the court does notrespond when an offender successfully completes the program, the offendershall be released on probation.Upon successful completion of a shockincarceration program, the board of probation and parole shall advise thesentencing court of an offender's probationary release date thirty daysprior to release.The court shall follow the recommendation of thedepartment unless the court determines that probation is not appropriate.If the court determines that probation is not appropriate, the court mayorder the execution of the offender's sentence only after conducting ahearing on the matter within ninety to one hundred twenty days of theoffender's sentence.If the department determines that an offender is notsuccessful in a program, then after one hundred days of incarceration thecircuit court shall receive from the department of corrections a report onthe offender's participation in the program and department recommendationsfor terms and conditions of an offender's probation.The court shall thenrelease the offender on probation or order the offender to remain in thedepartment to serve the sentence imposed. 4.If the department of corrections one hundred twenty-day program isfull, the court may place the offender in a private program approved by thedepartment of corrections or the court, the expenses of such program to bepaid by the offender, or in an available program offered by anotherorganization.If the offender is convicted of a class C or class Dnonviolent felony, the court may order probation while awaiting appointmentto treatment. 5.Except when the offender has been found to be a predatory sexualoffender pursuant to section 558.018, RSMo, the court shall request thatthe offender be placed in the sexual offender assessment unit of thedepartment of corrections if the defendant has pleaded guilty to or hasbeen found guilty of sexual abuse when classified as a class B felony. 6.Unless the offender is being granted probation pursuant tosuccessful completion of a one hundred twenty-day program the circuit courtshall notify the state in writing when the court intends to grant probationto the offender pursuant to the provisions of this section.The state may,in writing, request a hearing within ten days of receipt of the court'snotification that the court intends to grant probation.Upon the state'srequest for a hearing, the court shall grant a hearing as soon asreasonably possible.If the state does not respond to the court's noticein writing within ten days, the court may proceed upon its own motion togrant probation. 7.An offender's first incarceration for one hundred twenty days forparticipation in a department of corrections program prior to release onprobation shall not be considered a previous prison commitment for thepurpose of determining a minimum prison term under the provisions ofsection 558.019, RSMo. 8.Notwithstanding any other provision of law, probation may not begranted pursuant to this section to offenders who have been convicted ofmurder in the second degree pursuant to section 565.021, RSMo; forciblerape pursuant to section 566.030, RSMo; forcible sodomy pursuant to section566.060, RSMo; statutory rape in the first degree pursuant to section566.032, RSMo; statutory sodomy in the first degree pursuant to section566.062, RSMo; child molestation in the first degree pursuant to section566.067, RSMo, when classified as a class A felony; abuse of a childpursuant to section 568.060, RSMo, when classified as a class A felony; anoffender who has been found to be a predatory sexual offender pursuant tosection 558.018, RSMo; or any offense in which there exists a statutoryprohibition against either probation or parole.(L. 1990 H.B. 974, A.L. 1996 H.B. 974, A.L. 2000 S.B. 757 & 602,A.L. 2003 S.B. 5, A.L. 2005 H.B. 353)
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  • Appeals, probation not to be granted, when--probation granted afterdelivery to department of corrections, time limitation,assessment--one hundred twenty day program--notification to state,when, hearing--no probation in certain cases.

    559.115. 1. Neither probation nor parole shall be granted by thecircuit court between the time the transcript on appeal from the offender'sconviction has been filed in appellate court and the disposition of theappeal by such court.

    2. Unless otherwise prohibited by subsection 5 of this section, acircuit court only upon its own motion and not that of the state or theoffender shall have the power to grant probation to an offender anytime upto one hundred twenty days after such offender has been delivered to thedepartment of corrections but not thereafter. The court may requestinformation and a recommendation from the department concerning theoffender and such offender's behavior during the period of incarceration.Except as provided in this section, the court may place the offender onprobation in a program created pursuant to section 217.777, RSMo, or mayplace the offender on probation with any other conditions authorized bylaw.

    3. The court may recommend placement of an offender in a departmentof corrections one hundred twenty-day program. Upon the recommendation ofthe court, the department of corrections shall determine the offender'seligibility for the program, the nature, intensity, and duration of anyoffender's participation in a program and the availability of space for anoffender in any program. When the court recommends and receives placementof an offender in a department of corrections one hundred twenty-dayprogram, the offender shall be released on probation if the department ofcorrections determines that the offender has successfully completed theprogram except as follows. Upon successful completion of a treatmentprogram, the board of probation and parole shall advise the sentencingcourt of an offender's probationary release date thirty days prior torelease. The court shall release the offender unless such releaseconstitutes an abuse of discretion. If the court determined that there isan abuse of discretion, the court may order the execution of the offender'ssentence only after conducting a hearing on the matter within ninety to onehundred twenty days of the offender's sentence. If the court does notrespond when an offender successfully completes the program, the offendershall be released on probation. Upon successful completion of a shockincarceration program, the board of probation and parole shall advise thesentencing court of an offender's probationary release date thirty daysprior to release. The court shall follow the recommendation of thedepartment unless the court determines that probation is not appropriate.If the court determines that probation is not appropriate, the court mayorder the execution of the offender's sentence only after conducting ahearing on the matter within ninety to one hundred twenty days of theoffender's sentence. If the department determines that an offender is notsuccessful in a program, then after one hundred days of incarceration thecircuit court shall receive from the department of corrections a report onthe offender's participation in the program and department recommendationsfor terms and conditions of an offender's probation. The court shall thenrelease the offender on probation or order the offender to remain in thedepartment to serve the sentence imposed.

    4. If the department of corrections one hundred twenty-day program isfull, the court may place the offender in a private program approved by thedepartment of corrections or the court, the expenses of such program to bepaid by the offender, or in an available program offered by anotherorganization. If the offender is convicted of a class C or class Dnonviolent felony, the court may order probation while awaiting appointmentto treatment.

    5. Except when the offender has been found to be a predatory sexualoffender pursuant to section 558.018, RSMo, the court shall request thatthe offender be placed in the sexual offender assessment unit of thedepartment of corrections if the defendant has pleaded guilty to or hasbeen found guilty of sexual abuse when classified as a class B felony.

    6. Unless the offender is being granted probation pursuant tosuccessful completion of a one hundred twenty-day program the circuit courtshall notify the state in writing when the court intends to grant probationto the offender pursuant to the provisions of this section. The state may,in writing, request a hearing within ten days of receipt of the court'snotification that the court intends to grant probation. Upon the state'srequest for a hearing, the court shall grant a hearing as soon asreasonably possible. If the state does not respond to the court's noticein writing within ten days, the court may proceed upon its own motion togrant probation.

    7. An offender's first incarceration for one hundred twenty days forparticipation in a department of corrections program prior to release onprobation shall not be considered a previous prison commitment for thepurpose of determining a minimum prison term under the provisions ofsection 558.019, RSMo.

    8. Notwithstanding any other provision of law, probation may not begranted pursuant to this section to offenders who have been convicted ofmurder in the second degree pursuant to section 565.021, RSMo; forciblerape pursuant to section 566.030, RSMo; forcible sodomy pursuant to section566.060, RSMo; statutory rape in the first degree pursuant to section566.032, RSMo; statutory sodomy in the first degree pursuant to section566.062, RSMo; child molestation in the first degree pursuant to section566.067, RSMo, when classified as a class A felony; abuse of a childpursuant to section 568.060, RSMo, when classified as a class A felony; anoffender who has been found to be a predatory sexual offender pursuant tosection 558.018, RSMo; or any offense in which there exists a statutoryprohibition against either probation or parole.

    (L. 1990 H.B. 974, A.L. 1996 H.B. 974, A.L. 2000 S.B. 757 & 602, A.L. 2003 S.B. 5, A.L. 2005 H.B. 353)

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