Text: SSB02137                          Text: SSB02139
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Senate Study Bill 2138

Bill Text

PAG LIN
  1  1    Section 1.  Section 822.2, subsection 6, Code 1997, is
  1  2 amended by striking the subsection.
  1  3    Sec. 2.  Section 822.3, Code 1997, is amended to read as
  1  4 follows:
  1  5    822.3  HOW TO COMMENCE PROCEEDING – LIMITATION.
  1  6    A proceeding is commenced by filing an application verified
  1  7 by the applicant with the clerk of the district court in which
  1  8 the conviction or sentence took place.  However, if the
  1  9 applicant is seeking relief under section 822.2, subsection 6,
  1 10 the application shall be filed with the clerk of the district
  1 11 court of the county in which the applicant is being confined
  1 12 within ninety days from the date the disciplinary decision is
  1 13 final.  All other applications Applications must be filed
  1 14 within three years from the date the conviction or decision is
  1 15 final or, in the event of an appeal, from the date the writ of
  1 16 procedendo is issued.  However, this limitation does not apply
  1 17 to a ground of fact or law that could not have been raised
  1 18 within the applicable time period.  Facts within the personal
  1 19 knowledge of the applicant and the authenticity of all
  1 20 documents and exhibits included in or attached to the
  1 21 application must be sworn to affirmatively as true and
  1 22 correct.  The supreme court may prescribe the form of the
  1 23 application and verification.  The clerk shall docket the
  1 24 application upon its receipt and promptly bring it to the
  1 25 attention of the court and deliver a copy to the county
  1 26 attorney and the attorney general.
  1 27    Sec. 3.  Section 822.5, subsection 2, Code 1997, is amended
  1 28 by striking the subsection.
  1 29    Sec. 4.  Section 822.7, Code 1997, is amended to read as
  1 30 follows:
  1 31    822.7  COURT TO HEAR APPLICATION.
  1 32    The application shall be heard in, and before any judge of
  1 33 the court in which the conviction or sentence took place.
  1 34 However, if the applicant is seeking relief under section
  1 35 822.2, subsection 6, the application shall be heard in, and
  2  1 before any judge of the court of the county in which the
  2  2 applicant is being confined.  A record of the proceedings
  2  3 shall be made and preserved.  All rules and statutes
  2  4 applicable in civil proceedings including pretrial and
  2  5 discovery procedures are available to the parties.  The court
  2  6 may receive proof of affidavits, depositions, oral testimony,
  2  7 or other evidence, and may order the applicant brought before
  2  8 it for the hearing.  If the court finds in favor of the
  2  9 applicant, it shall enter an appropriate order with respect to
  2 10 the conviction or sentence in the former proceedings, and any
  2 11 supplementary orders as to rearraignment, retrial, custody,
  2 12 bail, discharge, correction of sentence, or other matters that
  2 13 may be necessary and proper.  The court shall make specific
  2 14 findings of fact, and state expressly its conclusions of law,
  2 15 relating to each issue presented.  This order is a final
  2 16 judgment.
  2 17    Sec. 5.  Section 822.9, Code 1997, is amended to read as
  2 18 follows:
  2 19    822.9  APPEAL.
  2 20    An appeal from a final judgment entered under this chapter
  2 21 may be taken, perfected, and prosecuted either by the
  2 22 applicant or by the state in the manner and within the time
  2 23 after judgment as provided in the rules of appellate procedure
  2 24 for appeals from final judgments in criminal cases.  However,
  2 25 if a party is seeking an appeal under section 822.2,
  2 26 subsection 6, the appeal shall be by writ of certiorari.  
  2 27                           EXPLANATION
  2 28    This bill repeals the provision in the postconviction
  2 29 relief chapter, Code chapter 822, which allows a person who
  2 30 has been convicted and sentenced of a public offense to make a
  2 31 claim, for purposes of seeking relief from imposition of a
  2 32 sentence, that the person's reduction of sentence was
  2 33 unlawfully forfeited.  Reductions of sentences for good
  2 34 conduct while incarcerated or due to jail time served prior to
  2 35 conviction and sentencing are governed by Code chapter 903A.
  3  1 The bill also deletes references and procedures associated
  3  2 with postconviction actions based on claims of unlawful
  3  3 forfeiture of reductions of sentence.  
  3  4 LSB 4329SC 77
  3  5 lh/sc/14
     

Text: SSB02137                          Text: SSB02139
Text: SSB02100 - SSB02199               Text: SSB Index
Bills and Amendments: General Index     Bill History: General Index

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