Bill No.: SF0065                  Drafter:  JHR

LSO No.:  08LSO-0123              Effective Date:  7/1/2008

Enrolled Act No.:  <enrnum>

Chapter No.:       <chptnum>

Prime Sponsor:     Joint Judiciary Interim Committee

Catch Title:       Post-conviction relief petitions-DNA evidence.

Subject:  Establishes a process for filing petitions for post-conviction relief petitions, based on DNA evidence.

Summary/Major Elements:

· Under current law, petitions for post-conviction relief must be filed within 2 years of the conviction.

· This bill:

· Creates a Post-Conviction DNA Testing Act;

· Authorizes post-conviction relief petitions based on DNA to be filed under this act, notwithstanding any law or rule of procedure that may bar a motion for a new trial as untimely;

· Authorizes a person convicted of a felony offense, prior to filing a motion for new trial, to file a motion for post-conviction DNA testing in the district court that entered the judgment of conviction, provided the movant asserts specific facts under oath to establish the existence of the DNA evidence, the need for it and other potentially exculpatory facts;

· Specifies procedures for hearing the motion and the new trial;

· Specifies conditions and standards for testing of DNA material;

· Provides for the costs of DNA testing and for the assistance of the Public Defender's Office for eligible convicted persons;

· Authorizes the court to deny the motion, or to vacate a conviction upon stipulation of the parties, or to order a new trial, which may, depending on the findings, result in an order of actual innocence, exoneration and expungement of the conviction;

· Prohibits a court from ordering DNA testing if the original trial occurred, or plea was entered, after January 1, 2000, if the person did not request DNA testing or present such evidence for strategic or tactical reasons, or as a result of a lack of due diligence, unless such failure was a result of ineffective assistance of counsel;

· Prohibits the waiver of the right to file a motion for DNA testing;

· Specifies that an order granting or denying a motion for DNA testing is not appealable, but may be subject to a writ for review;

· Specifies that an order granting or denying a motion for new trial under the act is appealable;

· Authorizes consensual DNA testing;

· Amends the timelines for preservation of biological material to 5 years, or for as long as the person is incarcerated in connection with the case, whichever is longer, except effective July 1, 2008, the material may be destroyed after 5 years if proper notice is provided to the person still incarcerated, his attorney or the state public defender if specified conditions are met;

· Establishes a felony offense for a person who willfully or maliciously destroys, conceals or tampers with biological evidence that may be necessary under the Post-Conviction DNA Testing Act.