Bill Text: MS SB2388 | 2018 | Regular Session | Introduced
Bill Title: Conviction; clarify subsequent for certain crimes and post-conviction relief.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2018-01-30 - Died In Committee [SB2388 Detail]
Download: Mississippi-2018-SB2388-Introduced.html
MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary, Division B; Corrections
By: Senator(s) Blackmon
Senate Bill 2388
AN ACT TO AMEND SECTION 41-29-147, MISSISSIPPI CODE OF 1972, TO CLARIFY THE MEANING OF SECOND OR SUBSEQUENT OFFENSE FOR CERTAIN DRUG CONVICTIONS; TO AMEND SECTIONS 99-39-5 AND 99-39-27, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DISMISSAL OR DENIAL OF POST-CONVICTION RELIEF SHALL NOT BE A BAR TO A SECOND OR SUCCESSIVE APPLICATION OR MOTION FOR RELIEF WHEN THERE HAS BEEN AN ADOPTION OR ENACTMENT OF STATE LAW THAT WOULD HAVE ACTUALLY ADVERSELY AFFECTED THE OUTCOME OF THE CONVICTION OR SENTENCE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-147, Mississippi Code of 1972, is amended as follows:
41-29-147. Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
For purposes of this
section, an offense is considered a second or subsequent offense, if, prior to
his conviction of the offense, the offender has at any time been convicted upon
charges separately brought arising out of separate incidents at different times
from such offense under this article or under any statute of the United
States or of any state relating to narcotic drugs, * * * marijuana, depressant,
stimulant or hallucinogenic drugs.
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 three (3) years 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 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 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 * * *; or
(iii) That there has been an adoption or enactment of state law that would have actually adversely affected the outcome of the conviction or sentence.
(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. Section 99-39-27, Mississippi Code of 1972, is amended as follows:
99-39-27. (1) The application for leave to proceed in the trial court filed with the Supreme Court under Section 99-39-7 shall name the State of Mississippi as the respondent.
(2) The application shall contain the original and two (2) executed copies of the motion proposed to be filed in the trial court together with such other supporting pleadings and documentation as the Supreme Court by rule may require.
(3) The prisoner shall serve an executed copy of the application upon the Attorney General simultaneously with the filing of the application with the court.
(4) The original motion, together with all files, records, transcripts and correspondence relating to the judgment under attack, shall promptly be examined by the court.
(5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by those documents are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application. The court may, in its discretion, require the Attorney General upon sufficient notice to respond to the application.
(6) The court, upon satisfaction of the standards set forth in this article, is empowered to grant the application.
(7) In granting the application the court, in its discretion, may:
(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted with those documents, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.
(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.
(8) No application or relief shall be granted without the Attorney General being given at least five (5) days to respond.
(9) Except as otherwise
provided in this subsection, the dismissal or denial of an application
under this section is a final judgment and shall be a bar to a second or
successive application under this article. Excepted from this prohibition is an
application filed under Section 99-19-57(2), raising the issue of the
offender's supervening mental illness before the execution of a sentence of
death. A dismissal or denial of an application relating to mental illness
under Section 99-19-57(2) shall be res judicata on the issue and shall likewise
bar any second or successive applications 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 that 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, that is of such nature that it
would be practically conclusive that, if it had 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. The dismissal or denial of an application under this section shall
not be a bar to a second or successive application under this article when
there has been an adoption or enactment of state law that would have actually
adversely affected the outcome of the conviction or sentence.
(10) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
(11) Post-conviction proceedings in which the defendant is under sentence of death shall be governed by rules established by the Supreme Court as well as the provisions of this section.
SECTION 4. This act shall take effect and be in force from and after July 1, 2018.
