2013 Regular Session
To: Judiciary A
By: Representatives Formby, Boyd, Brown (20th), Carpenter, Chism, Crawford, Martinson, Monsour, Moore, Taylor, Eure
AN ACT TO AMEND SECTION 99-39-5, MISSISSIPPI CODE OF 1972, TO REVISE THE ALLOWABLE TIME FOR CERTAIN APPEALS; 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 person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal if the person 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 there exists
biological evidence secured in relation to the investigation or prosecution
attendant to the petitioner's conviction not tested, or, if previously tested,
that can be subjected to additional DNA testing, that would provide a
reasonable likelihood of more probative results, and that testing would
demonstrate by reasonable probability that the petitioner would not have been
convicted or would have received a lesser sentence if favorable results had
been obtained through such forensic DNA testing at the time of the original
prosecution * * *
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) 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.
(2) A motion for relief
under this article shall be made within * * *
one (1) year after the
time in which the petitioner'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 * * * one (1) year after entry
of the judgment of conviction. Excepted from this * * * one-year statute of
limitations are those cases in which the petitioner can demonstrate either:
(a) (i) 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; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner 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) For the purposes of this article:
evidence" means the contents of a sexual assault examination kit and any
item that contains blood, semen, hair, saliva, skin tissue, fingernail
scrapings, bone, bodily fluids or other identifiable biological material that
was collected as part of the criminal investigation or may reasonably be used
to incriminate or exculpate any person for the offense. This definition
applies whether that material is catalogued separately, such as on a slide,
swab or in a test tube, or is present on other evidence, including, but not
limited to, clothing, ligatures, bedding or other household material, drinking
cups, cigarettes or other items * * *
(b) "DNA" means deoxyribonucleic acid.
SECTION 2. This act shall take effect and be in force from and after July 1, 2013.