MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Judiciary En Banc
By: Representative Brown, Mayo, Fleming
AN ACT TO AMEND SECTION 99-17-20, MISSISSIPPI CODE OF 1972, TO REQUIRE DNA TESTING IN CAPITAL CASES BASED ON THE AVAILABILITY OF EVIDENCE; TO ESTABLISH PROCEDURE FOR OBTAINING DNA SAMPLES; TO AMEND SECTION 99-39-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR POST-CONVICTION MOTIONS FOR DNA TESTING FOR ALL CAPITAL DEATH PENALTY CASES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 99-17-20, Mississippi Code of 1972, is amended as follows:
99-17-20. (1) No person shall be tried for capital murder, or any other crime punishable by death as provided by law, unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the code defining the offense alleged to have been committed by the accused. The judge, in cases where the offense cited in the indictment is punishable by death, may grant an instruction for the state or the defendant which instructs the jury as to their discretion to convict the accused of the commission of an offense not specifically set forth in the indictment returned against the accused. Any conviction of the accused for an offense punishable by death shall not be valid unless the offense for which the accused is convicted shall have been set forth in the indictment by section and subsection number of the code which defined the offense allegedly committed by the accused.
(2) All law enforcement agencies who possess biological evidence of any person convicted of any capital offense shall notify such person of the existence of such evidence and shall make such evidence available to such person for DNA (deoxyribonucleic acid) testing. Upon the petition of a defendant convicted of a capital crime and after a determination of indigency, the court shall appoint counsel for the defendant for the purposes of testing as provided in this subsection.
SECTION 2. 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 3. This act shall take effect and be in force from and after its passage.