2006 Regular Session

To: Judiciary En Banc

By: Representative Fleming

House Bill 5



     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 article shall be made within three (3) years 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 three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.  Excepted from this three-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.  Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

     (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 article shall be subject to the provisions of Section 99-19-42.

     (5)  All prisoners in custody for a capital death penalty conviction shall have the right to file a post-conviction motion for DNA testing.

     SECTION 2.  Section 99-39-9, Mississippi Code of 1972, is amended as follows:

     99-39-9.  (1)  A motion under this article shall name the State of Mississippi as respondent and shall contain all of the following:

          (a)  The identity of the proceedings in which the prisoner was convicted.

          (b)  The date of the entry of the judgment of conviction and sentence of which complaint is made.

          (c)  A concise statement of the claims or grounds upon which the motion is based.

          (d)  A separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner.

          (e)  A specific statement of the facts which are not within the prisoner's personal knowledge.  The motion shall state how or by whom said facts will be proven.  Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion.  The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained.  This showing shall state what the prisoner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

          (f)  The identity of any previous proceedings in federal or state courts that the prisoner may have taken to secure relief from his conviction and sentence.

     (2)  A motion shall be limited to the assertion of a claim for relief against one (1) judgment only unless such motion is for DNA testing as provided in subsection (5) of Section 99-39-5.  If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.

     (3)  The motion shall be verified by the oath of the prisoner.

     (4)  If the motion received by the clerk does not substantially comply with the requirements of this section, it shall be returned to the prisoner if a judge of the court so directs, together with a statement of the reason for its return. The clerk shall retain a copy of the motion so returned.

     (5)  The prisoner shall deliver or serve a copy of the motion, together with a notice of its filing, on the state.  The filing of the motion shall not require an answer or other motion unless so ordered by the court under Section 99-39-11(3).

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2006.