565.040. Death penalty, if held unconstitutional, resentencing procedure. — 1. In the event that the death penalty provided in this chapter is held to be unconstitutional, any person convicted of murder in the first degree shall be sentenced by the court to life imprisonment without eligibility for probation, parole, or release except by act of the governor, with the exception that when a specific aggravating circumstance found in a case is held to be unconstitutional or invalid for another reason, the supreme court of Missouri is further authorized to remand the case for resentencing or retrial of the punishment pursuant to subsection 5 of section 565.035.
2. In the event that any death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court which previously sentenced the defendant to death shall cause the defendant to be brought before the court and shall sentence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor, with the exception that when a specific aggravating circumstance found in a case is held to be inapplicable, unconstitutional or invalid for another reason, the supreme court of Missouri is further authorized to remand the case for retrial of the punishment pursuant to subsection 5 of section 565.035.
Notes of Decisions
Cited in
7
cases, 2003–2017 · leading case:
State v. Whitfield, 107 S.W.3d 253 (Mo. 2003).
State v. Whitfield, 107 S.W.3d 253 (Mo. 2003).
· cites it 34× “Accordingly, the Court's mandate is recalled, the sentence of death is reversed, and this Court sets aside the sentence of death and resentences the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.”
State v. Deck, 303 S.W.3d 527 (Mo. 2010).
· cites it 4× “2 was amplified by the dissent in Whitfield : Section 565.040, however, does not apply to situations of mere procedural error, even if such error is rooted in constitutional principles.”
Deck v. Steele, 249 F. Supp. 3d 991 (E.D. Mo. 2017).
· cites it 2× “Citing Whitfield, the court noted that it had “previously indicated that trial error premised on a constitutional violation not directly affecting the imposition of the death penalty statutory scheme does not result in the application of section 565.040.” Id. at 533. The court…”
State v. Thompson, 134 S.W.3d 32 (Mo. 2004).
· cites it 3× “Whitfield , at 256; section 565.040 RSMo 2000. As determined in Whitfield , the holding in Ring operates retroactively and prohibits judges from finding the facts necessary to support a death sentence in “all future death penalty cases and to those not yet final or still on…”
State v. Hunt, 481 S.W.3d 923 (Mo. Ct. App. 2016).
· cites it 3× “ORDER PER CURIAM: Willard Hunt appeals his convictions and sentences following a jury trial for arson in the first degree, section 565.040, RSMo Cum.' Súpp. 2013, domestic assault in the first degree, section 565.”
State v. Henderson, 503 S.W.3d 306 (Mo. Ct. App. 2016).
· cites it 3× “ORDER PER CURIAM Jeremy Henderson (“Defendant”) appeals from judgment upon his conviction after a jury trial on one count of arson in the first degree (in violation of Section 565.040, RSMo 2000) and murder in the second degree (Section 565.”
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