MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A; Appropriations

By: Representative Watson

AN ACT TO AMEND SECTION 25-1-85, MISSISSIPPI CODE OF 1972, TO PROVIDE VEHICLES FOR THE OFFICE OF POST-CONVICTION COUNSEL AND THE OFFICE OF CAPITAL DEFENSE COUNSEL; TO AMEND SECTION 99-15-18, MISSISSIPPI CODE OF 1972, TO AMEND COMPENSATION PROCEDURES IN POST-CONVICTION RELIEF CASES INVOLVING THE DEATH PENALTY; TO AMEND SECTIONS 99-39-5 AND 99-39-23, MISSISSIPPI CODE OF 1972, TO REVISE FILING LIMITATIONS FOR POST-CONVICTION RELIEF IN CAPITAL CASES AND THE APPOINTMENT OF POST-CONVICTION COUNSEL; TO AMEND SECTION 99-39-103, MISSISSIPPI CODE OF 1972, TO REVISE THE PERSONNEL OF THE OFFICE OF POST-CONVICTION COUNSEL; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 25-1-85, Mississippi Code of 1972, is amended as follows:

25-1-85. The following state departments, agencies or institutions are hereby allowed to purchase, own and operate, in strict accordance with the provisions hereof, passenger vehicles not to exceed the following numbers:

Department of Economic and Community Development 14

Experiment Stations 16

Extension Service 1

Forestry Commission 48

Department of Transportation 115

Military Department 5

Department of Corrections 13

Parole Board 2

Mississippi Department of Public Safety 600

Division of Plant Industry 23

State Board of Mental Health 4

East Mississippi State Hospital 1

Mississippi State Hospital 2

Alcoholic Beverage Control Division of the

Mississippi State Tax Commission 30

Soil and Water Conservation Commission 5

Ellisville State School 1

North Mississippi Retardation Center 1

South Mississippi Retardation Center 1

Board of Health 13

State Oil and Gas Board 3

Each institution of higher learning, for police

purposes, except that the University of

Southern Mississippi may have 6 and any

other institution with more than 6,000

students may have 4 2

Wildlife, Fisheries and Parks 60

Surplus Property Procurement Commission 4

State Tax Commission-station wagons 2

State Tax Commission-automobiles 6

Mississippi Gaming Commission 60

Department of Environmental Quality 12

Pearl River Valley Water Supply District 7

Pearl River Basin Development District 2

Pat Harrison Waterway District 1

Department of Transportation -

Office of State Aid Road Construction 10

Tennessee-Tombigbee Waterway Development Authority 2

Fair Commission 1

State Civil Defense Office (including

communications vehicle) 4

Bureau of Narcotics 167

Mississippi State Port Authority at Gulfport 6

Tombigbee Water Supply District 3

Board of Pharmacy 4

Yellow Creek State Inland Port Authority 1

Boat and Water Safety Commission 2

Department of Archives and History 2

State Fire Fighters Academy (station wagon) 1

Office of Capitol Facilities - Capitol Police 5

Office of Building, Grounds and Real Property 1

State Veterans Affairs Board 15

Employment Security Commission 1

Forest Product Utilization Lab 1

Mississippi Board of Nursing 3

Certified Development Company of Mississippi, Inc. 1

State Board of Medical Licensure 5

Mississippi Public Employees' Retirement System 4

Mississippi Public Service Commission 42

Department of Human Services 3

Department of Rehabilitation Services 4

Real Estate Commission 2

Mississippi Library Commission - station wagons 5

Boswell Regional Center 1

Hudspeth Regional Center 1

North Mississippi State Hospital 1

South Mississippi State Hospital 1

Motor Vehicle Commission 1

Office of the State Auditor 20

Division of Medicaid, Office of the Governor 3

Department of Marine Resources 10

Central Mississippi Residential Center 1

Juvenile Rehabilitation Center 1

Department of Education 1

Office of the State Fire Marshal 15

Liquified Compressed Gas Division of the

Department of Insurance 10

Office of Capital Post-Conviction Counsel-station wagon.....1

Office of Capital Defense Counsel-station wagons............2

Except as provided in Sections 25-1-77 through 25-1-93, no state department, institution or agency shall purchase, operate or maintain any passenger vehicle out of any funds available for the use of such department, institution or agency, unless same has been or may be donated.

For purposes of this section, "passenger vehicle" shall be defined as a vehicle which is designed to transport four (4) or more persons and/or provides adequate seating for at least four (4) persons. The terms "luxury vehicle," "full-size vehicle," "utility vehicle" and "carryall vehicle" shall be as defined by the industry.

Nothing in Sections 25-1-77 through 25-1-93 shall be construed to prohibit agencies, departments and institutions from purchasing and operating passenger vehicles when used exclusively to transport patients, prisoners, students, faculty or staff of state institutions, blind and sighted employees essential to operate blind training programs or material, products and client-trainees in the sheltered workshop program, or bookmobiles. The superintendents of the Columbia Training School and Oakley Training School and the Commissioner of Corrections, or staff members designated by them, may use such passenger vehicles for other official functions and operations of those institutions at their discretion. Passenger vehicles or similar vehicles used for any other purposes shall be considered as automobiles and subject to the restrictions set forth in the aforesaid sections.

In addition to the motor vehicles authorized to be owned and operated by the Mississippi Department of Public Safety, said department is also authorized to receive, own and operate special purpose motor vehicles to be used solely in investigations.

Of the motor vehicles authorized to be owned and operated by the Mississippi Highway Safety Patrol, no more than twenty-one (21) vehicles may be kept for use by administrative personnel of the patrol whose principal duties are performed at the Highway Safety Patrol Headquarters Building and the Drivers' License Examining Station in Hinds County to commute to and from the residence of said personnel to the office at which such duties are regularly performed.

Of the motor vehicles authorized to be owned and operated by the Mississippi Department of Transportation, not more than five (5) vehicles may be kept for use by administrative personnel of the department to commute between their residences and the offices at which their duties are regularly performed. The executive director of the department is authorized to allow additional department personnel to commute to and from their residences in department vehicles due to the nature of their job and for the safety of the traveling public.

Of the motor vehicles authorized to be owned and operated by the State Tax Commission, no more than four (4) vehicles may be kept for use by administrative personnel whose principal duties are performed at State Tax Commission offices in Hinds County to commute to and from the residence of said personnel to the office at which such duties are regularly performed.

The provisions of Chapter 226, Laws of 1964, remain in force and are not affected by this section.

Any state officer, employee or board member who violates any of the foregoing provisions of Sections 25-1-77 through 25-1-85 shall be liable on his or her official bond for the total amount of the purchase price of the passenger vehicle, plus the total amount of funds expended in violation of said sections for the operating costs of such vehicle.

SECTION 2. Section 99-15-18, Mississippi Code of 1972, is amended as follows:

99-15-18. (1) Counsel employed by an office funded by the State of Mississippi or any county shall receive no compensation or expenses for representation of a party seeking post-conviction relief while under a sentence of death other than the compensation attendant to his office.

(2) Unless employed by such an office, counsel appointed to represent a party seeking post-conviction relief while under a sentence of death shall be paid at an hourly rate not to exceed eighty percent (80%) of the hourly rate allowed in the United States District Courts of the Northern and Southern Districts of Mississippi to attorneys appointed to represent defendants seeking habeas corpus relief.

(3) Counsel shall submit to the trial court, once each month, an interim invoice. Compensation earned and reimbursable expenses incurred each month shall be claimed on an interim invoice submitted no later than the fifteenth day of the following month, or the first business day thereafter. All interim vouchers shall be supported by detailed and itemized time and expense statements. The trial court shall review the interim invoices when submitted and will authorize compensation to be paid for seventy-five percent of the approved number of hours. The court shall also authorize for payment all reimbursable expenses, including fees and expenses of experts and of investigators, reasonably incurred. At the conclusion of the state post-conviction representation, counsel shall submit a final voucher seeking payment for representation provided during the final interim period. The final invoice shall also set forth in detail the time and expenses claimed for the entire case, including all documentation. Counsel shall reflect all compensation and reimbursement previously received on the appropriate line of the final invoice. Upon review and approval of the final invoice, the trial court shall authorize compensation to be paid for the approved number of hours provided during the final interim period, for all reasonable expenses reasonably incurred during the final interim period, and for the withheld twenty-five percent (25%) of hours approved in prior interim periods.

(4) All interim invoices will be maintained under seal during the pendancy of state post-conviction proceedings. Upon submission by defendant's counsel of a final invoice, the trial court shall unseal the interim invoices unless the trial court determines that petitioner's interests require a limited disclosure. In determining whether limited disclosure is appropriate, the trial court shall consider the need (i) to protect the petitioner's 5th amendment right against self-incrimination; (ii) to protect the petitioner's 6th amendment right to effective assistance of counsel; (iii) the petitioner's attorney-client privilege; (iv) the work product privilege of the petitioner's counsel; (v) the safety of any person; (vi) whether petitioner intends to seek federal habeas corpus relief; and (vii) any other interest that justice may require.

(5) Prior to payment of any fees in a case in excess of Seven Thousand Five Hundred Dollars ($7,500.00) or expenses of investigation and experts in excess of Two Thousand Five Hundred Dollars ($2,500.00), the application for such fees and expenses will be submitted to the Supreme Court for review of the award of the convicting court. If counsel believes that the court has failed to allow reasonable compensation, counsel may petition the Supreme Court for review. If counsel is appointed in successive post-conviction proceedings, such counsel shall receive reasonable compensation considering the services performed.

(6) The trial court shall also, upon petition by the party seeking post-conviction relief, authorize additional monies to pay for investigative and expert services that are reasonably necessary to adequately litigate the post-conviction claims. The initial petition for such expenses shall present a credible estimate of anticipated expenses, and such estimate shall be updated from time to time as needed to inform the court of the status of such expenses. Payment of such expenses shall be made from funds in the Special Capital Post-Conviction Counsel Fund.

SECTION 3. 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 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 upon judgment of death becoming final and a writ of certiorari to the United States Supreme Court having been denied of the time for filing such petition having expired.

(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.

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

99-39-23. (1) 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 article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. 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 article 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 cases resulting in a sentence of death and upon a determination of indigence, appointment of post-conviction counsel shall be made by the Office of Capital Post-Conviction Counsel upon order entered by the Supreme Court promptly upon the judgment of death becoming final and a writ of certiorari to the United States Supreme Court having been denied or the time for filing such petition having expired. The order shall direct the trial court to immediately determine indigence and whether the inmate will accept counsel.

SECTION 5. Section 99-39-103, Mississippi Code of 1972, is amended as follows:

99-39-103. There is created the Mississippi Office of Capital Post-Conviction Counsel. This office shall consist of a minimum of three (3) and a maximum of five (5) attorneys, a minimum of one (1) and a maximum of three (3) investigators, one (1) fiscal officer and a minimum of one (1) and a maximum of two (2) secretary/paralegals. One of those attorneys shall serve as director of the office. The director shall be appointed by the Chief Justice of the Supreme Court with the approval of a majority of the justices voting, for a term of four (4) years, or until a successor takes office. The remaining attorneys and other staff shall be appointed by the director of the office and shall serve at the will and pleasure of the director. The director and all other attorneys in the office shall either be active members of The Mississippi Bar, or, if a member in good standing of the bar in another jurisdiction, be admitted to The Mississippi Bar within twelve (12) months following the commencement of the person's employment by the office. At least three (3) of the attorneys in the office shall meet all qualifications necessary to serve as post-conviction counsel for persons under a sentence of death. The director may be removed from office by the Chief Justice upon finding that the director is not qualified under law to serve as post-conviction counsel for persons under sentences of death, has failed to perform the duties of the office or has acted beyond the scope of the authority granted by law for the office.

SECTION 6. This act shall take effect and be in force from and after July 1, 2001.