2001 Legislation
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HOUSE BILL NO. 242 – Apellate/post-conviction, DNA test

HOUSE BILL NO. 242

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H0242aa..............................by JUDICIARY, RULES AND ADMINISTRATION
DNA TESTING - Amends existing law relating to post-conviction appeals to
provide a petition for special procedures for fingerprint and DNA testing;
to provide additional conditions for filing a petition for fingerprint and
DNA testing; to provide that a trial court shall order appropriate relief
if testing demonstrates a person did not commit an offense; and to provide
for payment of testing.
                                                                        
02/14    House intro - 1st rdg - to printing
02/15    Rpt prt - to Jud
03/14    Rpt out - to Gen Ord
    Rpt out amen - to engros
03/15    Rpt engros - 1st rdg - to 2nd rdg as amen
03/16    2nd rdg - to 3rd rdg as amen
03/19    3rd rdg as amen - PASSED - 67-0-3
      AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
      Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Cuddy,
      Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20),
      Gagner, Gould, Hadley, Hammond, Henbest, Higgins, Hornbeck, Jaquet,
      Jones, Kellogg, Kendell, Kunz, Lake, Langford, Loertscher, Mader,
      Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce,
      Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali,
      Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stone, Swan,
      Tilman, Trail, Wood, Young, Mr. Speaker
      NAYS -- None
      Absent and excused -- Crow, Harwood, Wheeler
    Floor Sponsors -- Bieter & Moss
    Title apvd - to Senate
03/20    Senate intro - 1st rdg - to Jud
03/26    Rpt out - rec d/p - to 2nd rdg as amen
    2nd rdg - to 3rd rdg as amen
    Rls susp - PASSED - 35-0-0
      AYES -- Andreason, Boatright, Branch, Brandt, Bunderson, Burtenshaw,
      Cameron, Danielson, Darrington, Davis, Deide, Dunklin, Frasure,
      Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee,
      Lodge, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen,
      Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams,
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor -- Davis
    Title apvd - to House
03/28    To enrol - rpt enrol - Sp signed
    Pres signed
03/29    To Governor
04/04    Governor signed
         Session Law Chapter 317
         Effective: 07/01/01

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 242
                                                                        
                      BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO CERTAIN POST-CONVICTION APPEALS; AMENDING SECTION  19-2719,  IDAHO
  3        CODE,  GOVERNING SPECIAL APPELLATE AND POST-CONVICTION PROCEDURE FOR CAPI-
  4        TAL CASES TO PROVIDE A PETITION FOR DNA TESTING  AND  PROCEDURE  GOVERNING
  5        SUCH  A  PETITION  AND  TO  MAKE  TECHNICAL  CORRECTIONS; AMENDING SECTION
  6        19-4901, IDAHO CODE, TO PROVIDE ADDITIONAL CONDITIONS FOR FILING  A  PETI-
  7        TION  FOR  POST-CONVICTION  REMEDY  AND TO MAKE TECHNICAL CORRECTIONS; AND
  8        AMENDING SECTION 19-4902, IDAHO CODE, TO PROVIDE FOR A  PETITION  FOR  DNA
  9        TESTING  AND  PROCEDURE  GOVERNING SUCH A PETITION AND TO MAKE A TECHNICAL
 10        CORRECTION.
                                                                        
 11    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 12        SECTION 1.  That Section 19-2719, Idaho Code, be, and the same  is  hereby
 13    amended to read as follows:
                                                                        
 14        19-2719.  SPECIAL  APPELLATE  AND  POST-CONVICTION  PROCEDURE  FOR CAPITAL
 15    CASES -- AUTOMATIC STAY. The following special procedures shall be interpreted
 16    to accomplish the purpose of eliminating unnecessary delay in carrying  out  a
 17    valid death sentence.
 18        (1)  When the punishment of death is imposed the time for filing an appeal
 19    shall begin to run when the death warrant is filed.
 20        (2)  The  death warrant shall not be filed until forty-two (42) days after
 21    the judgment imposing the death sentence has been filed, or, in  the  event  a
 22    post-conviction  challenge  to  the conviction or sentence is filed, until the
 23    order deciding such post-conviction challenge is filed.
 24        (3)  Within forty-two (42) days of the filing of the judgment imposing the
 25    punishment of death, and before the death warrant is filed, the defendant must
 26    file any legal or factual challenge to the  sentence  or  conviction  that  is
 27    known or reasonably should be known.
 28        (4)  Any  remedy  available by post-conviction procedure, habeas corpus or
 29    any other provision of state law must be pursued according to  the  procedures
 30    set forth in this section and within the time limitations of subsection (3) of
 31    this  section,  except that a petition which alleges innocence of the crime of
 32    conviction and requests the performance of a  forensic  deoxyribonucleic  acid
 33    (DNA) test on specified evidence may be filed at any time, even if the defend-
 34    ant has previously filed one (1) or more post-conviction petitions pursuant to
 35    this  section.  In  such a case, the district court, upon a determination that
 36    any evidence containing deoxyribonucleic acid (DNA) was secured in  connection
 37    with  the  trial  resulting  in  the judgment, shall grant the application for
 38    forensic DNA testing of such evidence upon its determination that if a  foren-
 39    sic  DNA test had been conducted on such evidence, and if the result, assuming
 40    it would be favorable to the  petitioner,  had  been  admitted  in  the  trial
 41    resulting in the judgment, there exists a reasonable probability that the ver-
 42    dict would have been more favorable to the defendant. Thereafter, the district
 43    court  shall  hold  an  evidentiary hearing where, upon a showing by the peti-
                                                                        
                                           2
                                                                        
  1    tioner that he is innocent, the district court shall grant appropriate relief.
  2        The cost of the forensic DNA test shall be at  the  petitioner's  expense,
  3    except  to  the extent the petitioner qualifies for the test at public expense
  4    pursuant to chapter 8, title 19, Idaho Code.
  5        (5)  If the defendant fails to apply for relief as provided in  this  sec-
  6    tion  and  within the time limits specified, he shall be deemed to have waived
  7    such claims for relief as were known, or reasonably should  have  been  known,
  8    except  as  provided  for claims of innocence which are governed by subsection
  9    (4) of this section. The courts of Idaho shall have no power to  consider  any
 10    such claims for relief as have been so waived or grant any such relief.
 11        (a)  An allegation that a successive post-conviction petition may be heard
 12        because  of the applicability of the exception herein for issues that were
 13        not known or could not reasonably have been known shall not be  considered
 14        unless  the  applicant shows the existence of such issues by (i) a precise
 15        statement of the issue or issues  asserted  together  with  (ii)  material
 16        facts stated under oath or affirmation by credible persons with first hand
 17        knowledge that would support the issue or issues asserted. A pleading that
 18        fails to make a showing of excepted issues supported by material facts, or
 19        which is not credible, must be summarily dismissed.
 20        (b)  A  successive  post-conviction pleading asserting the exception shall
 21        be deemed facially insufficient to the extent it alleges matters that  are
 22        cumulative  or impeaching or would not, even if the allegations were true,
 23        cast doubt on the reliability of the conviction or sentence.
 24        (c)  A successive post-conviction pleading asserting the  exception  shall
 25        be  deemed facially insufficient to the extent it seeks retroactive appli-
 26        cation of new rules of law.
 27        (6)  In the event the defendant desires to appeal from any post-conviction
 28    order entered pursuant to this section, his appeal must be part of any  appeal
 29    taken from the conviction or sentence. All issues relating to conviction, sen-
 30    tence  and post-conviction challenge shall be considered in the same appellate
 31    proceeding.
 32        (7)  If post-conviction challenge is made under  this  section,  questions
 33    raised  thereby shall be heard and decided by the district court within ninety
 34    (90) days of the filing of any motion or petition for relief timely  filed  as
 35    provided  by  this  section.  The  court  shall give first priority to capital
 36    cases. In the event the district court fails to act within the time specified,
 37    the supreme court of Idaho shall, on its own  motion  or  the  motion  of  any
 38    party,  order  the court to proceed forthwith, or if appropriate, reassign the
 39    case to another judge. When the supreme court intervenes as provided, it shall
 40    set a reasonable time limit for disposition of the issues before the  district
 41    court.
 42        (8)  The  time limit provided in subsection (7) of this section for dispo-
 43    sition of post-conviction claims may  be  extended  only  upon  a  showing  of
 44    extraordinary  circumstances which would make it impossible to fairly consider
 45    defendant's claims in the time provided. Such showing must be made under  oath
 46    and  the  district  court's finding that extraordinary circumstances exist for
 47    extending the time shall be in writing and shall be  immediately  reported  to
 48    the  supreme court, which shall at once independently consider the sufficiency
 49    of the circumstances shown and determine whether an extension of time is  war-
 50    ranted.
 51        (9)  When a judgment imposing the penalty of death is filed, the clerk and
 52    the  reporter  shall  begin  preparation  of the transcripts of the trial, and
 53    other proceedings, and the clerk's transcript.
 54        (10) When the procedures specified in this section  and  section  19-2827,
 55    Idaho  Code,  have  been carried out and a remittitur issued, and an execution
                                                                        
                                           3
                                                                        
  1    date set as provided by law, the defendant shall be deemed to  have  exhausted
  2    all state remedies.
  3        (11) Any  successive  petition  for  post-conviction relief not within the
  4    exception of subsection (5) of this section shall be dismissed summarily. Not-
  5    withstanding any other statute or rule, the order of dismissal  shall  not  be
  6    subject  to  any motion to alter, amend or reconsider. Such order shall not be
  7    subject to any requirement for the giving of notice of the court's  intent  to
  8    dismiss. The order of dismissal shall not be appealable.
  9        (12) A  stay of execution while the special appellate procedures specified
 10    herein are followed and during the pendency of automatic review of death  sen-
 11    tences shall be automatically entered by the clerk of the supreme court at the
 12    time  the district court transmits to the supreme court the report required by
 13    section 19-2827, Idaho Code. If the sentence is upheld, the clerk  shall  dis-
 14    solve  such  stay  when the remittitur is filed. Thereafter the district court
 15    shall set a new execution date.
                                                                        
 16        SECTION 2.  That Section 19-4901, Idaho Code, be, and the same  is  hereby
 17    amended to read as follows:
                                                                        
 18        19-4901.  REMEDY  --  TO  WHOM AVAILABLE -- CONDITIONS. (a) Any person who
 19    has been convicted of, or sentenced for, a crime and who claims:
 20        (1)  tThat the  conviction  or  the  sentence  was  in  violation  of  the
 21        Cconstitution  of  the  United States or the Cconstitution or laws of this
 22        state;
 23        (2)  tThat the court was without jurisdiction to impose sentence;
 24        (3)  tThat the sentence exceeds the maximum authorized by law;
 25        (4)  tThat there exists evidence of material facts,  not  previously  pre-
 26        sented  and heard, that requires vacation of the conviction or sentence in
 27        the interest of justice;
 28        (5)  tThat his sentence has expired, his probation, or conditional release
 29        was unlawfully revoked by the court in which he was convicted, or that  he
 30        is otherwise unlawfully held in custody or other restraint; or
 31        (6)  Subject  to the provision of section 19-4902(b), Idaho Code, that the
 32        petitioner is innocent of the offense; or
 33        (7)  Tthat the conviction or sentence is otherwise subject  to  collateral
 34        attack  upon  any  ground  of alleged error heretofore available under any
 35        common law, statutory or other  writ,  motion,  petition,  proceeding,  or
 36        remedy:  may  institute,  without  paying a filing fee, a proceeding under
 37        this act to secure relief.
 38        (b)  This remedy is not a substitute for nor does  it  affect  any  remedy
 39    incident  to the proceedings in the trial court, or of an appeal from the sen-
 40    tence or conviction. Any issue which could have been raised on direct  appeal,
 41    but  was  not,  is forfeited and may not be considered in post-conviction pro-
 42    ceedings, unless it appears to the court, on the basis of a  substantial  fac-
 43    tual  showing  by  affidavit, deposition or otherwise, that the asserted basis
 44    for relief raises a substantial doubt about the reliability of the finding  of
 45    guilt  and  could  not,  in the exercise of due diligence, have been presented
 46    earlier. Except as otherwise provided in this act, it  comprehends  and  takes
 47    the  place  of  all  other common law, statutory, or other remedies heretofore
 48    available for challenging the validity of the conviction or sentence. It shall
 49    be used exclusively in place of them.
                                                                        
 50        SECTION 3.  That Section 19-4902, Idaho Code, be, and the same  is  hereby
 51    amended to read as follows:
                                                                        
                                           4
                                                                        
  1        19-4902.  COMMENCEMENT OF PROCEEDINGS -- VERIFICATION -- FILING -- SERVICE
  2    --  DNA  TESTING. (a) A proceeding is commenced by filing an application veri-
  3    fied by the applicant with the clerk of the district court in which  the  con-
  4    viction  took  place.  An  application may be filed at any time within one (1)
  5    year from the expiration of the time for appeal or from the  determination  of
  6    an  appeal  or  from  the  determination  of a proceeding following an appeal,
  7    whichever is later. Facts within the personal knowledge of the  applicant  and
  8    the  authenticity of all documents and exhibits included in or attached to the
  9    application must be sworn to affirmatively as true and correct.  The  Ssupreme
 10    Ccourt  may  prescribe the form of the application and verification. The clerk
 11    shall docket the application upon its receipt and promptly  bring  it  to  the
 12    attention of the court and deliver a copy to the prosecuting attorney.
 13        (b) (1)  Notwithstanding  the  time  limits set forth in subsection (a) of
 14        this section, a petition which alleges innocence of the crime  of  convic-
 15        tion  and  requests  the  performance  of a forensic deoxyribonucleic acid
 16        (DNA) test on specified evidence may be filed at any  time,  even  if  the
 17        petitioner  has previously filed one (1) or more post-conviction petitions
 18        pursuant to this chapter. In such a  case,  the  district  court,  upon  a
 19        determination that any evidence containing deoxyribonucleic acid (DNA) was
 20        secured  in  connection  with  the  trial resulting in the judgment, shall
 21        grant the application for forensic DNA testing of such evidence  upon  its
 22        determination  that if a forensic DNA test had been conducted on such evi-
 23        dence, and if the result, assuming it would  be  favorable  to  the  peti-
 24        tioner,  had  been  admitted in the trial resulting in the judgment, there
 25        exists a reasonable probability that the verdict would have been more fav-
 26        orable to the petitioner. Thereafter, the district  court  shall  hold  an
 27        evidentiary  hearing  where,  upon  a showing by the petitioner that he is
 28        innocent, the district court shall grant appropriate relief.
 29        (2)  The cost of the  forensic  DNA  test  shall  be  at  the  petitioners
 30        expense,  except  to  the  extent the petitioner qualifies for the test at
 31        public expense pursuant to chapter 8, title 19, Idaho Code.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                                                     Moved by    Bieter              
                                                                        
                                                     Seconded by Moss                
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENTS TO H.B. NO. 242
                                                                        
                                                                        
  1                               AMENDMENTS TO SECTION 1
  2        On page 1 of the printed bill, in line 31, delete ", except that  a  peti-
  3    tion  which alleges innocence of the crime of"; delete lines 32 through 43; on
  4    page 2, delete lines 1 through 4 and insert: ".  The  special  procedures  for
  5    fingerprint  or  forensic  DNA testing set forth in sections 19-4901(a)(6) and
  6    19-4902(b) through (f), Idaho Code, are fully applicable in capital cases  and
  7    are  subject  to the procedures set forth in this section, and must be pursued
  8    through a petition filed within the time limitations of subsection (3) of this
  9    section or by July 1, 2002, whichever is  later.";  in  line  7,  delete  ",";
 10    delete line 8; and in line 9, delete "(4) of this section".
                                                                        
 11                               AMENDMENTS TO SECTION 2
 12        On  page  3, in line 31, delete "provision" and insert: "provisions"; also
 13    in line 31, following "19-4902(b)" insert: "through (f)".
                                                                        
 14                               AMENDMENTS TO SECTION 3
 15        On page 4, delete lines 13 through 28, and insert:
 16        "(b)  A petitioner may, at any time, file  a  petition  before  the  trial
 17    court  that entered the judgment of conviction in his or her case for the per-
 18    formance of fingerprint or forensic deoxyribonucleic  acid  (DNA)  testing  on
 19    evidence  that  was  secured in relation to the trial which resulted in his or
 20    her conviction but which was not subject to the testing that is now  requested
 21    because the technology for the testing was not available at the time of trial.
 22    The  petition  must be filed by July 1, 2002, or within one (1) year after the
 23    filing of the judgment of conviction, whichever  is  later.  The  clerk  shall
 24    docket the application upon its receipt and promptly bring it to the attention
 25    of the court and deliver a copy to the prosecuting attorney.
 26        (c)  The petitioner must present a prima facie case that:
 27        (1)  Identity  was an issue in the trial which resulted in his or her con-
 28        viction; and
 29        (2)  The evidence to be tested has been subject to a chain of custody suf-
 30        ficient to establish that such evidence has not been substituted, tampered
 31        with, replaced or altered in any material aspect.
 32        (d)  The trial court shall allow the testing under  reasonable  conditions
 33    designed to protect the state's interests in the integrity of the evidence and
 34    the testing process upon a determination that:
 35        (1)  The  result  of  the  testing has the scientific potential to produce
 36        new, noncumulative evidence that would show that it is more probable  than
 37        not that the petitioner is innocent; and
 38        (2)  The  testing method requested would likely produce admissible results
 39        under the Idaho rules of evidence.
 40        (e)  In the event the fingerprint or  forensic  DNA  test  results  demon-
 41    strate,  in  light  of all admissible evidence, that the petitioner is not the
                                                                        
                                          2
                                                                        
  1    person who committed the  offense,  the  court  shall  order  the  appropriate
  2    relief.";
  3    in line 29, delete "(2)" and insert: "(f)"; also in line 29, delete "petition-
  4    ers"  and  insert: "petitioner's"; and in line 31, following "Code" insert: ",
  5    in which case the fingerprint or forensic DNA test shall be performed by,  and
  6    paid for by funds allocated for, Idaho state police forensic services".
                                                                        
  7                                 CORRECTIONS TO TITLE
  8        On page 1, in line 4, following "PETITION FOR" insert: "SPECIAL PROCEDURES
  9    FOR  FINGERPRINT  AND";  also  in line 4, delete "AND PROCEDURE GOVERNING"; in
 10    line 5, delete "SUCH A PETITION AND TO MAKE TECHNICAL CORRECTIONS"; in line 8,
 11    following "PETITION FOR" insert: "FINGERPRINT AND"; and in line 9, delete "AND
 12    PROCEDURE GOVERNING SUCH A PETITION" and insert: ", TO PROVIDE  THAT  A  PETI-
 13    TIONER  MUST PRESENT CERTAIN ELEMENTS OF A PRIMA FACIE CASE, TO PROVIDE THAT A
 14    TRIAL COURT SHALL ALLOW TESTING UNDER CERTAIN CONDITIONS, TO  PROVIDE  THAT  A
 15    COURT  SHALL ORDER APPROPRIATE RELIEF IF TESTING DEMONSTRATES A PERSON DID NOT
 16    COMMIT AN OFFENSE, TO PROVIDE FOR PAYMENT OF TESTING".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 242, As Amended
                                                                        
                      BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO CERTAIN POST-CONVICTION APPEALS; AMENDING SECTION  19-2719,  IDAHO
  3        CODE,  GOVERNING SPECIAL APPELLATE AND POST-CONVICTION PROCEDURE FOR CAPI-
  4        TAL CASES TO PROVIDE A PETITION FOR SPECIAL PROCEDURES FOR FINGERPRINT AND
  5        DNA TESTING; AMENDING SECTION 19-4901, IDAHO CODE, TO  PROVIDE  ADDITIONAL
  6        CONDITIONS  FOR  FILING  A PETITION FOR POST-CONVICTION REMEDY AND TO MAKE
  7        TECHNICAL CORRECTIONS; AND AMENDING SECTION 19-4902, IDAHO CODE,  TO  PRO-
  8        VIDE  FOR  A  PETITION  FOR FINGERPRINT AND DNA TESTING, TO PROVIDE THAT A
  9        PETITIONER MUST PRESENT CERTAIN ELEMENTS OF A PRIMA FACIE CASE, TO PROVIDE
 10        THAT A TRIAL COURT SHALL ALLOW TESTING UNDER CERTAIN CONDITIONS,  TO  PRO-
 11        VIDE THAT A COURT SHALL ORDER APPROPRIATE RELIEF IF TESTING DEMONSTRATES A
 12        PERSON DID NOT COMMIT AN OFFENSE, TO PROVIDE FOR PAYMENT OF TESTING AND TO
 13        MAKE A TECHNICAL CORRECTION.
                                                                        
 14    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 15        SECTION  1.  That  Section 19-2719, Idaho Code, be, and the same is hereby
 16    amended to read as follows:
                                                                        
 17        19-2719.  SPECIAL APPELLATE  AND  POST-CONVICTION  PROCEDURE  FOR  CAPITAL
 18    CASES -- AUTOMATIC STAY. The following special procedures shall be interpreted
 19    to  accomplish  the purpose of eliminating unnecessary delay in carrying out a
 20    valid death sentence.
 21        (1)  When the punishment of death is imposed the time for filing an appeal
 22    shall begin to run when the death warrant is filed.
 23        (2)  The death warrant shall not be filed until forty-two (42) days  after
 24    the  judgment  imposing  the death sentence has been filed, or, in the event a
 25    post-conviction challenge to the conviction or sentence is  filed,  until  the
 26    order deciding such post-conviction challenge is filed.
 27        (3)  Within forty-two (42) days of the filing of the judgment imposing the
 28    punishment of death, and before the death warrant is filed, the defendant must
 29    file  any  legal  or  factual  challenge to the sentence or conviction that is
 30    known or reasonably should be known.
 31        (4)  Any remedy available by post-conviction procedure, habeas  corpus  or
 32    any  other  provision of state law must be pursued according to the procedures
 33    set forth in this section and within the time limitations of subsection (3) of
 34    this section. The special procedures for fingerprint or forensic  DNA  testing
 35    set  forth  in  sections 19-4901(a)(6) and 19-4902(b) through (f), Idaho Code,
 36    are fully applicable in capital cases and are subject to  the  procedures  set
 37    forth in this section, and must be pursued through a petition filed within the
 38    time  limitations of subsection (3) of this section or by July 1, 2002, which-
 39    ever is later.
 40        (5)  If the defendant fails to apply for relief as provided in  this  sec-
 41    tion  and  within the time limits specified, he shall be deemed to have waived
 42    such claims for relief as were known, or reasonably should  have  been  known.
 43    The courts of Idaho shall have no power to consider any such claims for relief
                                                                        
                                           2
                                                                        
  1    as have been so waived or grant any such relief.
  2        (a)  An allegation that a successive post-conviction petition may be heard
  3        because  of the applicability of the exception herein for issues that were
  4        not known or could not reasonably have been known shall not be  considered
  5        unless  the  applicant shows the existence of such issues by (i) a precise
  6        statement of the issue or issues  asserted  together  with  (ii)  material
  7        facts stated under oath or affirmation by credible persons with first hand
  8        knowledge that would support the issue or issues asserted. A pleading that
  9        fails to make a showing of excepted issues supported by material facts, or
 10        which is not credible, must be summarily dismissed.
 11        (b)  A  successive  post-conviction pleading asserting the exception shall
 12        be deemed facially insufficient to the extent it alleges matters that  are
 13        cumulative  or impeaching or would not, even if the allegations were true,
 14        cast doubt on the reliability of the conviction or sentence.
 15        (c)  A successive post-conviction pleading asserting the  exception  shall
 16        be  deemed facially insufficient to the extent it seeks retroactive appli-
 17        cation of new rules of law.
 18        (6)  In the event the defendant desires to appeal from any post-conviction
 19    order entered pursuant to this section, his appeal must be part of any  appeal
 20    taken from the conviction or sentence. All issues relating to conviction, sen-
 21    tence  and post-conviction challenge shall be considered in the same appellate
 22    proceeding.
 23        (7)  If post-conviction challenge is made under  this  section,  questions
 24    raised  thereby shall be heard and decided by the district court within ninety
 25    (90) days of the filing of any motion or petition for relief timely  filed  as
 26    provided  by  this  section.  The  court  shall give first priority to capital
 27    cases. In the event the district court fails to act within the time specified,
 28    the supreme court of Idaho shall, on its own  motion  or  the  motion  of  any
 29    party,  order  the court to proceed forthwith, or if appropriate, reassign the
 30    case to another judge. When the supreme court intervenes as provided, it shall
 31    set a reasonable time limit for disposition of the issues before the  district
 32    court.
 33        (8)  The  time limit provided in subsection (7) of this section for dispo-
 34    sition of post-conviction claims may  be  extended  only  upon  a  showing  of
 35    extraordinary  circumstances which would make it impossible to fairly consider
 36    defendant's claims in the time provided. Such showing must be made under  oath
 37    and  the  district  court's finding that extraordinary circumstances exist for
 38    extending the time shall be in writing and shall be  immediately  reported  to
 39    the  supreme court, which shall at once independently consider the sufficiency
 40    of the circumstances shown and determine whether an extension of time is  war-
 41    ranted.
 42        (9)  When a judgment imposing the penalty of death is filed, the clerk and
 43    the  reporter  shall  begin  preparation  of the transcripts of the trial, and
 44    other proceedings, and the clerk's transcript.
 45        (10) When the procedures specified in this section  and  section  19-2827,
 46    Idaho  Code,  have  been carried out and a remittitur issued, and an execution
 47    date set as provided by law, the defendant shall be deemed to  have  exhausted
 48    all state remedies.
 49        (11) Any  successive  petition  for  post-conviction relief not within the
 50    exception of subsection (5) of this section shall be dismissed summarily. Not-
 51    withstanding any other statute or rule, the order of dismissal  shall  not  be
 52    subject  to  any motion to alter, amend or reconsider. Such order shall not be
 53    subject to any requirement for the giving of notice of the court's  intent  to
 54    dismiss. The order of dismissal shall not be appealable.
 55        (12) A  stay of execution while the special appellate procedures specified
                                                                        
                                           3
                                                                        
  1    herein are followed and during the pendency of automatic review of death  sen-
  2    tences shall be automatically entered by the clerk of the supreme court at the
  3    time  the district court transmits to the supreme court the report required by
  4    section 19-2827, Idaho Code. If the sentence is upheld, the clerk  shall  dis-
  5    solve  such  stay  when the remittitur is filed. Thereafter the district court
  6    shall set a new execution date.
                                                                        
  7        SECTION 2.  That Section 19-4901, Idaho Code, be, and the same  is  hereby
  8    amended to read as follows:
                                                                        
  9        19-4901.  REMEDY  --  TO  WHOM AVAILABLE -- CONDITIONS. (a) Any person who
 10    has been convicted of, or sentenced for, a crime and who claims:
 11        (1)  tThat the  conviction  or  the  sentence  was  in  violation  of  the
 12        Cconstitution  of  the  United States or the Cconstitution or laws of this
 13        state;
 14        (2)  tThat the court was without jurisdiction to impose sentence;
 15        (3)  tThat the sentence exceeds the maximum authorized by law;
 16        (4)  tThat there exists evidence of material facts,  not  previously  pre-
 17        sented  and heard, that requires vacation of the conviction or sentence in
 18        the interest of justice;
 19        (5)  tThat his sentence has expired, his probation, or conditional release
 20        was unlawfully revoked by the court in which he was convicted, or that  he
 21        is otherwise unlawfully held in custody or other restraint; or
 22        (6)  Subject  to  the  provisions of section 19-4902(b) through (f), Idaho
 23        Code, that the petitioner is innocent of the offense; or
 24        (7)  Tthat the conviction or sentence is otherwise subject  to  collateral
 25        attack  upon  any  ground  of alleged error heretofore available under any
 26        common law, statutory or other  writ,  motion,  petition,  proceeding,  or
 27        remedy:  may  institute,  without  paying a filing fee, a proceeding under
 28        this act to secure relief.
 29        (b)  This remedy is not a substitute for nor does  it  affect  any  remedy
 30    incident  to the proceedings in the trial court, or of an appeal from the sen-
 31    tence or conviction. Any issue which could have been raised on direct  appeal,
 32    but  was  not,  is forfeited and may not be considered in post-conviction pro-
 33    ceedings, unless it appears to the court, on the basis of a  substantial  fac-
 34    tual  showing  by  affidavit, deposition or otherwise, that the asserted basis
 35    for relief raises a substantial doubt about the reliability of the finding  of
 36    guilt  and  could  not,  in the exercise of due diligence, have been presented
 37    earlier. Except as otherwise provided in this act, it  comprehends  and  takes
 38    the  place  of  all  other common law, statutory, or other remedies heretofore
 39    available for challenging the validity of the conviction or sentence. It shall
 40    be used exclusively in place of them.
                                                                        
 41        SECTION 3.  That Section 19-4902, Idaho Code, be, and the same  is  hereby
 42    amended to read as follows:
                                                                        
 43        19-4902.  COMMENCEMENT OF PROCEEDINGS -- VERIFICATION -- FILING -- SERVICE
 44    --  DNA  TESTING. (a) A proceeding is commenced by filing an application veri-
 45    fied by the applicant with the clerk of the district court in which  the  con-
 46    viction  took  place.  An  application may be filed at any time within one (1)
 47    year from the expiration of the time for appeal or from the  determination  of
 48    an  appeal  or  from  the  determination  of a proceeding following an appeal,
 49    whichever is later. Facts within the personal knowledge of the  applicant  and
 50    the  authenticity of all documents and exhibits included in or attached to the
 51    application must be sworn to affirmatively as true and correct.  The  Ssupreme
                                                                        
                                           4
                                                                        
  1    Ccourt  may  prescribe the form of the application and verification. The clerk
  2    shall docket the application upon its receipt and promptly  bring  it  to  the
  3    attention of the court and deliver a copy to the prosecuting attorney.
  4        (b)  A petitioner may, at any time, file a petition before the trial court
  5    that entered the judgment of conviction in his or her case for the performance
  6    of  fingerprint  or  forensic  deoxyribonucleic acid (DNA) testing on evidence
  7    that was secured in relation to the trial which resulted in his or her convic-
  8    tion but which was not subject to the testing that is  now  requested  because
  9    the  technology  for  the  testing was not available at the time of trial. The
 10    petition must be filed by July 1, 2002, or within one (1) year after the  fil-
 11    ing  of the judgment of conviction, whichever is later. The clerk shall docket
 12    the application upon its receipt and promptly bring it to the attention of the
 13    court and deliver a copy to the prosecuting attorney.
 14        (c)  The petitioner must present a prima facie case that:
 15        (1)  Identity was an issue in the trial which resulted in his or her  con-
 16        viction; and
 17        (2)  The evidence to be tested has been subject to a chain of custody suf-
 18        ficient to establish that such evidence has not been substituted, tampered
 19        with, replaced or altered in any material aspect.
 20        (d)  The  trial  court shall allow the testing under reasonable conditions
 21    designed to protect the state's interests in the integrity of the evidence and
 22    the testing process upon a determination that:
 23        (1)  The result of the testing has the  scientific  potential  to  produce
 24        new,  noncumulative evidence that would show that it is more probable than
 25        not that the petitioner is innocent; and
 26        (2)  The testing method requested would likely produce admissible  results
 27        under the Idaho rules of evidence.
 28        (e)  In  the  event  the  fingerprint  or forensic DNA test results demon-
 29    strate, in light of all admissible evidence, that the petitioner  is  not  the
 30    person  who  committed  the  offense,  the  court  shall order the appropriate
 31    relief.
 32        (f)  The cost of the forensic  DNA  test  shall  be  at  the  petitioner's
 33    expense,  except to the extent the petitioner qualifies for the test at public
 34    expense pursuant to chapter 8, title 19, Idaho Code, in which case the finger-
 35    print or forensic DNA test shall be performed by, and paid for by funds  allo-
 36    cated for, Idaho state police forensic services.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                                
                           RS l0946Cl
                                
The purpose of this legislation is to allow for post-conviction DNA
testing in appropriate cases. While prosecutors have been utilizing
DNA technology for nearly a decade in seeking convictions, Idaho
inmates have no statutory right to tests that may exonerate them. In
the past decade DNA testing has resulted in the post-conviction
exoneration of more than 65 individuals in the United States and
Canada.



Idaho Code Sections 19-2719 and 19-4902 limits the time in which a
defendant may seek post-conviction relief. A criminal defendant
convicted prior to the development of DNA testing, cannot utilize DNA
testing to prove actual innocence even though DNA testing is often
feasible on relevant biological material that is decades old.
 
                         FISCAL IMPACT
                                
There is no fiscal impact.

Contact
     Name: Representative David Bieter
       Phone:  332-1243

STATEMENT OF PURPOSE/FISCAL NOTE                H 242