632.492. Trial — procedure — assistance of counsel, right to jury, when. — Within sixty days after the completion of any examination held pursuant to section 632.489, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings pursuant to sections 632.480 to 632.513, any person subject to sections 632.480 to 632.513 shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person. The person, the attorney general, or the judge shall have the right to demand that the trial be before a jury. If the trial is held before a jury, the judge shall instruct the jury that if it finds that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment. If no demand for a jury is made, the trial shall be before the court. The court shall conduct all trials pursuant to this section in open court, except as otherwise provided for by the child victim witness protection law pursuant to sections 491.675 to 491.705.
Notes of Decisions
Care & Treatment of Kirk v. State, 520 S.W.3d 443 (Mo. 2017).
· cites it 29× “” This point was not preserved below, however, as Kirk’s counsel made it plain his “objection is not to the instruction itself, Judge, but my objection is to Statute 632.”
State Ex Rel. Nixon v. Kinder, 129 S.W.3d 5 (Mo. Ct. App. 2004).
· cites it 22× “§ 632.492, RSMo. Cum.Supp.2001. Respondent, the Honorable Byron Kinder, Circuit Judge, 19th Judicial Circuit, is conducting the proceedings, styled In re Jessie Moyers, Case Number 02PR323155, 19th Judicial Circuit.”
Care & Treatment of Elliott v. State, 215 S.W.3d 88 (Mo. 2007).
· cites it 10× “On June 15, 2004, the State of Missouri filed a petition to commit Elliott to the custody of the Missouri Department of Mental Health *91 pursuant to section 632.492, RSMo Supp. 2001. [5] Before the trial date, the court ordered an evaluation of Elliott to be performed by Dr.”
Care & Treatment of Barlow v. State, 250 S.W.3d 725 (Mo. Ct. App. 2008).
· cites it 18× “After the matter was remanded to the probate court, Barlow filed a motion to dismiss under section 632.492. Barlow argued that his trial setting was not timely under section 632.”
In Re the Care & Treatment of Norton, 123 S.W.3d 170 (Mo. 2004).
· cites it 8× “Norton argues that section 632.492 guarantees that any person subject to the SVP evaluation "shall be entitled to assistance of counsel" during his or her interview because the evaluation is part of the "proceedings pursuant to sections 632.”
Care & Treatment of Murrell v. State, 215 S.W.3d 96 (Mo. 2007).
· cites it 6× “1999, and determined Murrell did in fact meet that definition. On February 28, 2000, the State of Missouri filed a petition to commit Murrell to the custody of the department of mental health pursuant to section 632.”
In Re the Care & Treatment of Van Orden, 271 S.W.3d 579 (Mo. 2008).
· cites it 4× “Section 632.492. Section 632.495(1) provides that the court or jury "shall determine whether, by clear and convincing evidence, the person is a sexually violent predator.”
Grado v. State, 559 S.W.3d 888 (Mo. 2018).
· cites it 2× “489 provides the alleged SVP is entitled "To be represented by counsel," and section 632.492 provides, "At all stages of the proceedings [under the Act], any person subject to [the Act] shall be entitled to the assistance of counsel, and if the person is indigent, the court…”
Care & Treatment of Scates v. State, 134 S.W.3d 738 (Mo. Ct. App. 2004).
· cites it 5× “In turning to the SVP Act, we note that section 632.492 provides: “If the trial is held before a jury, the judge shall instruct the jury that if it finds that the person is a sexually violent predator, the person shall be committed to the custody of the director of the…”
Lewis v. State, 152 S.W.3d 325 (Mo. Ct. App. 2004).
· cites it 4× “§ 632.492, RSMo. Cum.Supp.2003. Recognizing that such an instruction follows the substantive law, this court’s southern district recently approved the giving of it.”
Care & Treatment of Smith v. State, 148 S.W.3d 330 (Mo. Ct. App. 2004).
· cites it 4× “In Scates, we held that the jury instruction given was proper because the Sexually Violent Predator Act (“SVP Act”), section 632.492, specifically prescribes the instruction which must be given to the jury.”
Care & Treatment of Bernat v. State, 194 S.W.3d 863 (Mo. 2006).
· cites it 4× “In other words, the state asks this Court to infer an affirmative bar on according this right to alleged SVPs from the fact the legislature has consistently "remained silent" on this issue.”
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