MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary A
By: Representatives Formby, Boyd, Brown (20th), Carpenter, Chism, Crawford, Martinson, Monsour, Moore, Taylor, Eure
AN ACT TO AMEND SECTIONS 9-4-3 AND 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 9-4-3, Mississippi Code of 1972, is amended as follows:
9-4-3. (1) The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court.
The jurisdiction of the Court of Appeals is limited to those matters which have been assigned to it by the Supreme Court.
The Supreme Court shall prescribe rules for the assignment of matters to the Court of Appeals. These rules may provide for the selective assignment of individual cases and may provide for the assignment of cases according to subject matter or other general criteria. However, the Supreme Court shall retain appeals in cases imposing the death penalty, or cases involving utility rates, annexations, bond issues, election contests, or a statute held unconstitutional by the lower court.
(2) Decisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari. The Supreme Court may grant certiorari review only by the affirmative vote of four (4) of its members. At any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals.
(3) The Court of Appeals shall have jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition or any other process when this may be necessary in any case assigned to it by the Supreme Court.
(4) The Court of Appeals shall issue a decision in every case heard before the Court of Appeals within two hundred seventy (270) days after the final briefs have been filed with the court.
(5) The Supreme Court shall
issue a decision in every case within its original jurisdiction, including all
direct and post-conviction collateral relief appeals or applications in cases
imposing the death penalty, within * * * one hundred eighty
(180) days after the final briefs have been filed with the court. The
Supreme Court shall issue a decision in every case received on certiorari from
the Court of Appeals within * * *
ninety (90) days after the final briefs have been filed with the court.
SECTION 2. 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:
(a) "Biological
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 3. This act shall take effect and be in force from and after July 1, 2013.