MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary B; Appropriations

By: Representative Capps

House Bill 681

AN ACT TO AMEND SECTION 99-39-5, MISSISSIPPI CODE OF 1972, TO REVISE THE STATUTE OF LIMITATIONS IN THE POST-CONVICTION RELIEF ACT; TO AMEND SECTIONS 99-39-7 AND 99-39-11, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A MOTION UNDER THE POST-CONVICTION RELIEF ACT SHALL BE AN ORIGINAL CIVIL ACTION IN THE TRIAL COURT; TO AMEND SECTION 99-39-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE APPOINTMENT OF COUNSEL FOR POST-CONVICTION RELIEF PURPOSES; TO AMEND SECTION 99-15-19, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; TO REPEAL SECTION 99-39-27, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE APPLICATION TO THE SUPREME COURT FOR LEAVE TO PROCEED WITH POST-CONVICTION RELIEF IN THE TRIAL COURT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 99-39-5, Mississippi Code of 1972, is amended as follows:

99-39-5. (1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;

(b) That the trial court was without jurisdiction to impose sentence;

(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;

(d) That the sentence exceeds the maximum authorized by law;

(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(f) That his plea was made involuntarily;

(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;

(h) That he is entitled to an out-of-time appeal; or

(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.

(2) A motion for relief under this chapter shall be made within one (1) year after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within one (1) year after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within year one (1) year after entry of the judgment of conviction. Excepted from this one-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(3) This motion is not a substitute for, nor does it affect, any remedy incident to the proceeding in the trial court, or direct review of the conviction or sentence.

(4) Proceedings under this chapter shall be subject to the provisions of Section 99-19-42.

SECTION 2. Section 99-39-7, Mississippi Code of 1972, is amended as follows:

99-39-7. The motion under this chapter shall be filed as an original civil action in the trial court * * *.

SECTION 3. Section 99-39-11, Mississippi Code of 1972, is amended as follows:

99-39-11. (1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.

(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

(3) If the motion is not dismissed under subsection (2) of this section, the judge shall order the state to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

 * * *

(4) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

SECTION 4. Section 99-39-23, Mississippi Code of 1972, is amended as follows:

99-39-23. (1) In all cases in which petitioner is under sentence of death, qualifies for the appointment of counsel under Section 99-15-15 and makes a timely request for appointment of counsel, the judge shall appoint one or more counsel prior to filing a formal petition for relief and in all other cases if an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under Section 99-15-15, Mississippi Code of 1972.

(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.

(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.

(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.

(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.

(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter. Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of a motion relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(7) No relief shall be granted under this chapter unless the prisoner proves by a preponderance of the evidence that he is entitled to such.

(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

(9) In all cases in which petitioner is under sentence of death and counsel is appointed, said counsel shall have been licensed to practice law in state and federal court for at least five (5) years, have represented persons charged with felony offenses at trial and appeal in state and federal court for at least three (3) years, have training or experience in death penalty litigation, and shall not have previously represented the prisoner at trial or on direct appeal in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.

SECTION 5. Section 99-15-19, Mississippi Code of 1972, is amended as follows:

99-15-19. Any county paying counsel fees and expenses incurred on appeal to the Supreme Court or by virtue of any prosecution charging the commission of a crime on the premises of the Mississippi State Penitentiary or the commission of a crime by any escapee therefrom or by virtue of a death row inmate filing a petition for post-conviction relief pursuant to Section 99-39-1 et seq., may request reimbursement of all such payments from the State Treasurer. The State Auditor shall issue his warrant, based upon a voucher sent by the treasurer of any county entitled to such reimbursement together with a certification that such sums have been allowed and paid. The State Treasurer shall pay the amount of any such reimbursement out of any funds in the state treasury appropriated for such purpose.

SECTION 6. Section 99-39-27, Mississippi Code of 1972, which provides for the application to the Supreme Court for leave to proceed with post-conviction relief in the trial court, is repealed.

SECTION 7. This act shall take effect and be in force from and after July 1, 1998.