632.498. 1. Each person committed pursuant to sections 632.480 to 632.513 shall have a current examination of the person's mental condition made once every year by the director of the department of mental health or designee. The yearly report shall be provided to the court that committed the person pursuant to sections 632.480 to 632.513. The court shall conduct an annual review of the status of the committed person. The court shall not conduct an annual review of a person's status if he or she has been conditionally released pursuant to section 632.505.
2. Nothing contained in sections 632.480 to 632.513 shall prohibit the person from otherwise petitioning the court for release. The director of the department of mental health shall provide the committed person who has not been conditionally released with an annual written notice of the person's right to petition the court for release over the director's objection. The notice shall contain a waiver of rights. The director shall forward the notice and waiver form to the court with the annual report.
3. If the committed person petitions the court for conditional release over the director's objection, the petition shall be served upon the court that committed the person, the director of the department of mental health, the head of the facility housing the person, and the attorney general.
4. The committed person shall have a right to have an attorney represent the person at the hearing but the person is not entitled to be present at the hearing. If the court at the hearing determines by a preponderance of the evidence that the person no longer suffers from a mental abnormality that makes the person likely to engage in acts of sexual violence if released, then the court shall set a trial on the issue.
5. The trial shall be governed by the following provisions:
(1) The committed person shall be entitled to be present and entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding;
(2) The attorney general shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by a psychiatrist or psychologist not employed by the department of mental health or the department of corrections. In addition, the person may be examined by a consenting psychiatrist or psychologist of the person's choice at the person's own expense;
(3) The burden of proof at the trial shall be upon the state to prove by clear and convincing evidence that the committed person's mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence. If such determination is made by a jury, the verdict must be unanimous;
(4) If the court or jury finds that the person's mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence, the person shall remain in the custody of the department of mental health in a secure facility designated by the director of the department of mental health. If the court or jury finds that the person's mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the person shall be conditionally released as provided in section 632.505.
(L. 1998 H.B. 1405, et al. § 7, A.L. 2004 S.B. 1211, A.L. 2006 H.B. 1698, et al.)
(2007) Increased burden by sexually violent predator in first step of two-trial discharge procedure to prove propriety of release by preponderance of the evidence is not violation of either due process or equal protection. In re Care and Treatment of Coffman, 225 S.W.3d 439 (Mo.banc).
Missouri General Assembly