Missouri Revised Statutes

Mo. Rev. Stat. § 557.036 (2026)

Role of court and jury in sentencing

✓ current as of May 2026

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557.036. Role of court and jury in sentencing — two stages of trial — punishment assessed by jury, when. — 1. Upon a finding of guilt, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.

2. Where an offense is submitted to the jury, the trial shall proceed in two stages. At the first stage, the jury shall decide only whether the defendant is guilty or not guilty of any submitted offense. The issue of punishment shall not be submitted to the jury at the first stage.

3. If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the offense upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. The court shall instruct the jury as to the range of punishment authorized by statute for each submitted offense. The attorneys may argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The jury shall assess and declare the punishment as authorized by statute.

4. A second stage of the trial shall not proceed and the court, and not the jury, shall assess punishment if:

(1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or

(2) The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, or a persistent sexual offender or predatory sexual offender as defined in section 566.125. If the jury cannot agree on the punishment to be assessed, the court shall proceed as provided in subsection 1 of this section. If, after due deliberation by the jury, the court finds the jury cannot agree on punishment, then the court may instruct the jury that if it cannot agree on punishment that the court will assess punishment.

5. If the jury returns a verdict of guilty in the first stage and declares a term of imprisonment in the second stage, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense.

6. If the defendant is found to be a prior offender, persistent offender, dangerous offender or persistent misdemeanor offender as defined in section 558.016:

(1) If he has been found guilty of an offense, the court shall proceed as provided in section 558.016; or

(2) If he has been found guilty of a class A felony, the court may impose any sentence authorized for the class A felony.

7. The court shall not seek an advisory verdict from the jury in cases of prior offenders, persistent offenders, dangerous offenders, persistent sexual offenders or predatory sexual offenders; if an advisory verdict is rendered, the court shall not deem it advisory, but shall consider it as mere surplusage.

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(L. 1977 S.B. 60, A.L. 1981 H.B. 554, A.L. 1990 H.B. 974, A.L. 1996 H.B. 974, A.L. 2003 S.B. 5, A.L. 2014 S.B. 491)

Effective 1-01-17

Notes of Decisions

Cited in 187 cases (14 in the last 5 years), 1980–2025 · leading case: State v. Jaco, 156 S.W.3d 775 (Mo. 2005).

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State v. Jaco, 156 S.W.3d 775 (Mo. 2005). · cites it 25× “Pursuant to section 557.036, RSMo Supp.2003, the court bifurcated Jaco’s trial.”

State of Missouri v. Kyle W. Nelson, 505 S.W.3d 437 (Mo. Ct. App. 2016). · cites it 16× “We are required, therefore, to more carefully examine section 557.036 to determine the intended parameters of its reach.”

State v. Cline, 808 S.W.2d 822 (Mo. 1991). · cites it 16× “036 requires the court to instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of its verdict.”

State v. Quisenberry, 639 S.W.2d 579 (Mo. 1982). · cites it 18× “(1) When a regular sentence of imprisonment for a felony is imposed, the court shall commit the defendant to the custody of the division of corrections for the term imposed under section 557.036, RSMo, or until released under procedures established elsewhere by law.”

State v. Antwine, 743 S.W.2d 51 (Mo. 1987). · cites it 6× “[10] Section 557.036, RSMo Cum.Supp.1984, applicable to the robbery count, provides that the court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as part of their verdict.”

State v. Hart, 404 S.W.3d 232 (Mo. 2013). · cites it 6× “Hart argues that this was not a knowing and intelligent waiver of his rights under section 557.036 because it was based on his belief — now proved wrong by Miller — that a sentence of life without parole for first-degree murder was inescapable.”

State v. Teer, 275 S.W.3d 258 (Mo. 2009). · cites it 6× “021 is unambiguous when it states that to be classified as a prior offender, thereby removing jury sentencing, the prior offender status "shall be pleaded, established and found prior to submission to the jury.”

State v. Thurman, 272 S.W.3d 489 (Mo. Ct. App. 2008). · cites it 9× “In his second point, Defendant claims the trial court plainly erred in allowing the prosecutor during the sentencing phase to ask Officer Gillam and Mother about rape charges against Defendant, in violation of Section 557.036, RSMo. Cum. Supp. 2003, 3 and his right to due…”

State v. Lewis, 633 S.W.2d 110 (Mo. Ct. App. 1982). · cites it 12× “To reallocate the twenty-five year sentences originally imposed over three convictions for reimposition over two convictions infringes § 557.036, RSMo 1978. A court is not bound to impose the exact punishment returned by the jury verdict and sentence.”

State v. Chapman, 167 S.W.3d 759 (Mo. Ct. App. 2005). · cites it 14× “Section 557.036, RSMo 2000. As a consequence, there was no clear ability to simply remand a case for jury sentencing.”

State v. Collins, 290 S.W.3d 736 (Mo. Ct. App. 2009). · cites it 6× “Section 557.036; see State v. Emery, 95 S.”

State v. Berry, 168 S.W.3d 527 (Mo. Ct. App. 2005). · cites it 8× “A wide range of evidence is admissible in the penalty phase, including victim impact evidence, the nature and circumstances of the offense, and the history and character of the defendant.”

Show all 187 citing cases →

— Mo. Rev. Stat. § 557.036(1) — 2 cases

Harris v. State, 779 S.W.2d 700 (Mo. Ct. App. 1989).

State of Missouri v. Brenda Thurmond (Mo. Ct. App. 2020).

— Mo. Rev. Stat. § 557.036(2) — 3 cases

Molasky v. State, 710 S.W.2d 875 (Mo. Ct. App. 1986).

State v. Shephard, 639 S.W.2d 258 (Mo. Ct. App. 1982).

State v. Green, 643 S.W.2d 1 (Mo. Ct. App. 1982).

— Mo. Rev. Stat. § 557.036(4) — 1 case

State v. Kretzer, 898 S.W.2d 639 (Mo. Ct. App. 1995).

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