Welcome to the Prison Talk Online Community! Take a Minute and Sign Up Today!






Go Back   Prison Talk > RESOURCE CENTER > Prison Legal Help!
Register Entertainment FAQ Calendar Mark Forums Read

Notices

Prison Legal Help! Ask questions, get opinions, and find resources.

Reply
 
Thread Tools Display Modes
  #1  
Old 12-07-2009, 01:04 PM
Doll Eyes's Avatar
Doll Eyes Doll Eyes is offline
No Puedo Mas Sin Ti
 

Join Date: Oct 2009
Location: In his heart
Posts: 540
Thanks: 2,107
Thanked 411 Times in 246 Posts
Default Rule 32 / Post Conviction Relief

How long in Arizona do you have that you can file for Rule 32 and/or post conviction releif....what I am reading is anywhere from 30 to 90 days....he has already severved 5 years, is it too late?
Reply With Quote
Sponsored Links
  #2  
Old 12-07-2009, 03:43 PM
Paralegal USA Paralegal USA is offline
Registered User
 

Join Date: Feb 2008
Location: U.S.A.
Posts: 1,761
Thanks: 33
Thanked 853 Times in 518 Posts
Default

It's too late to file a Rule 32 as-of-right. Controlling statute follows. I'm not certain, but I think it can be filed with permission later in AZ.

*************************************

Rule 32.4. Commencement of proceedings.

a. Form, filing and service of petition. A proceeding is commenced by
timely filing a notice of post-conviction relief with the court in which
the conviction occurred. The court shall provide notice forms for
commencement of all post-conviction relief proceedings. In a Rule 32
of-right proceeding, the notice must be filed within ninety days after
the entry of judgment and sentence or within thirty days after the
issuance of the final order or mandate by the appellate court in the
petitioner's first petition for post-conviction relief proceeding. In all
other non-capital cases, the notice must be filed within ninety days
after the entry of judgment and sentence or within thirty days after the
issuance of the order and mandate in the direct appeal, whichever is the
later. In a capital case, the clerk of the Supreme Court shall
expeditiously file a notice for post-conviction relief with the trial
court upon the issuance of a mandate affirming the defendant's conviction
and sentence on direct appeal. Any notice not timely filed may only raise
claims pursuant to Rule 32.1(d), (e), (f), (g) or (h). The notice shall
bear the caption of the original criminal action or actions to which it
pertains. On receipt of the notice, the court shall file a copy of the
notice in the case file of each such original action promptly send copies
to the defendant, the county attorney, the defendant's attorney, if
known, and the attorney general or the prosecutor, noting in the record
the date and manner of sending the copies. If the conviction occurred in
a court other than the Superior Court, the copy shall be sent to the
office of the prosecuting attorney who represented the state at trial.
The state shall notify any victim who has requested notice of
post-conviction proceedings.

b. Notification of appellate court. If an appeal of the defendant's
conviction, sentence, or both is pending, the clerk, or the court, within
5 days after the filing of the notice for post-conviction relief, shall
send a copy of the notice to the appropriate appellate court, noting in
the record the date and manner of sending the copies.

c. Appointment of counsel.

(1) Capital cases. After the Supreme Court has affirmed a defendant's
conviction and sentence in a capital case, the Supreme Court, or if
authorized by the Supreme Court, the presiding judge of the county from
which the case originated, shall appoint counsel for the defendant
pursuant to A.R.S. § 13-4041 and Rule 6.8 if the defendant is determined
to be indigent. If the appointment is made by the presiding judge, a copy
of the court's order appointing counsel shall be filed in the Supreme
Court.

Upon the filing of a successive notice, the presiding judge shall
appoint the previous post-conviction counsel of the capital defendant
unless counsel is waived or good cause is shown to appoint another
qualified attorney from the list described in A.R.S. § 13-4041.

On the first notice in capital cases, appointed counsel for the
defendant shall have one hundred twenty days from the filing of the
notice to file a petition raising claims under Rule 32.1. A capital
defendant proceeding without counsel shall have one hundred twenty days
from the filing of the notice to file a petition. On the filing of a
successive notice, appointed counsel, or the defendant if proceeding
without counsel, shall file the petition within thirty days from the
filing of the notice. On a showing of good cause, a defendant in a
capital case may be granted a sixty day extension in which to file the
petition. Additional extensions of thirty days may be granted for good
cause. If a petition for post-conviction relief is not filed within one
hundred and eighty days from the date of appointment of counsel, or one
hundred and eighty days from the date the notice is filed, or the date a
request for counsel is denied if the defendant is proceeding without
counsel, the defendant or counsel for the defendant shall file a notice
in the Supreme Court, advising the court of the status of the
proceedings. Thereafter, defendant or counsel for the defendant shall file
status reports in the Supreme Court every sixty days until the petition
for post-conviction relief is filed.

(2) Rule 32 of-right and non-capital cases. Upon the filing of a
timely or first notice in a Rule 32 proceeding, the presiding judge, or
his or her designee, shall appoint counsel for the defendant within 15
days if requested and the defendant is determined to be indigent. Upon
the filing of all other notices in non-capital cases, the appointment of
counsel is within the discretion of the presiding judge. In non-capital
cases appointed counsel for the defendant shall have sixty days from the
date of appointment to file a petition raising claims under Rule 32.1. On
a showing of good cause, a defendant in a non-capital case may be granted
a thirty day extension within which to file the petition. Additional
extensions of thirty days shall be granted only upon a showing of
extraordinary circumstances.

In a Rule 32 of-right proceeding, counsel shall investigate the
defendant's case for any and all colorable claims. If counsel determines
there are no colorable claims which can be raised on the defendant's
behalf, counsel shall file a notice advising the court of this
determination. Counsel's role is then limited to acting as advisory
counsel until the trial court's final determination. Upon receipt of the
notice, the court shall extend the time for filing a petition by the
defendant in propria persona. The extension shall be 45 days from the
date the notice is filed. Any extensions beyond the 45 days shall be
granted only upon a showing of extraordinary circumstances.

A defendant proceeding without counsel shall have sixty days to file a
petition from the date the notice is filed or from the date the request
for counsel is denied.

d. Transcript preparation. If the trial court proceedings have
not been previously transcribed, the defendant may request on a form
provided by the clerk of court that certified transcripts be
prepared. The court shall expeditiously review the request and order only
those transcripts prepared that it deems necessary to resolve the issues
to be raised in the petition. The preparation of the transcripts shall be
at county expense if the defendant is indigent. The time for filing of
the petition shall be tolled from the time a request for the transcripts
is made until the transcripts are prepared or the request is denied.
Certified transcripts shall be prepared and filed within sixty days of
the order granting the request.

e. Assignment of judge. The proceeding shall be assigned to the
sentencing judge where possible. If it appears that the sentencing
judge's testimony will be relevant, that judge shall transfer the case to
another judge.

f. Stay of execution of death sentence; notification by Supreme Court.
If the defendant has received a sentence of death and the Supreme Court
has fixed the time for execution of the sentence, no stay of execution
shall be granted upon the filing of a successive petition except upon
separate application for a stay to the Supreme Court, setting forth with
particularity those issues not precluded under Rule 32.2. The Clerk of the
Supreme Court shall notify the defendant, the Attorney General, and the
Director of the State Department of Corrections of the granting of a
stay.

(Amended Oct. 21, 1980, effective Dec. 1, 1980; amended Oct. 11, 1989,
effective Dec. 1, 1989; amended June 2, 1992, effective Sept. 30, 1992;
amended Sept. 24, 1992, effective Sept. 30, 1992; amended Feb. 25, 1993;
amended July 28, 1993, effective Dec. 1, 1993; amended effective Oct.
31, 2000; amended May 31, 2002, effective June 1, 2002; amended by
R-05-0009, effective Dec. 1, 2005; amended effective January 1, 2007
by R-05-0037.)
Reply With Quote
The Following User Says Thank You to Paralegal USA For This Useful Post:
Doll Eyes (12-07-2009)
  #3  
Old 12-07-2009, 05:44 PM
tee1964's Avatar
tee1964 tee1964 is offline
www.freedom4justin.com
 

Join Date: Jun 2008
Location: Pennsylvania
Posts: 390
Thanks: 605
Thanked 722 Times in 219 Posts
Default

Quote:
Originally Posted by Paralegal USA View Post
It's too late to file a Rule 32 as-of-right. Controlling statute follows. I'm not certain, but I think it can be filed with permission later in AZ.

*************************************

Rule 32.4. Commencement of proceedings.

a. Form, filing and service of petition. A proceeding is commenced by
timely filing a notice of post-conviction relief with the court in which
the conviction occurred. The court shall provide notice forms for
commencement of all post-conviction relief proceedings. In a Rule 32
of-right proceeding, the notice must be filed within ninety days after
the entry of judgment and sentence or within thirty days after the
issuance of the final order or mandate by the appellate court in the
petitioner's first petition for post-conviction relief proceeding. In all
other non-capital cases, the notice must be filed within ninety days
after the entry of judgment and sentence or within thirty days after the
issuance of the order and mandate in the direct appeal, whichever is the
later. In a capital case, the clerk of the Supreme Court shall
expeditiously file a notice for post-conviction relief with the trial
court upon the issuance of a mandate affirming the defendant's conviction
and sentence on direct appeal. Any notice not timely filed may only raise
claims pursuant to Rule 32.1(d), (e), (f), (g) or (h). The notice shall
bear the caption of the original criminal action or actions to which it
pertains. On receipt of the notice, the court shall file a copy of the
notice in the case file of each such original action promptly send copies
to the defendant, the county attorney, the defendant's attorney, if
known, and the attorney general or the prosecutor, noting in the record
the date and manner of sending the copies. If the conviction occurred in
a court other than the Superior Court, the copy shall be sent to the
office of the prosecuting attorney who represented the state at trial.
The state shall notify any victim who has requested notice of
post-conviction proceedings.

b. Notification of appellate court. If an appeal of the defendant's
conviction, sentence, or both is pending, the clerk, or the court, within
5 days after the filing of the notice for post-conviction relief, shall
send a copy of the notice to the appropriate appellate court, noting in
the record the date and manner of sending the copies.

c. Appointment of counsel.

(1) Capital cases. After the Supreme Court has affirmed a defendant's
conviction and sentence in a capital case, the Supreme Court, or if
authorized by the Supreme Court, the presiding judge of the county from
which the case originated, shall appoint counsel for the defendant
pursuant to A.R.S. § 13-4041 and Rule 6.8 if the defendant is determined
to be indigent. If the appointment is made by the presiding judge, a copy
of the court's order appointing counsel shall be filed in the Supreme
Court.

Upon the filing of a successive notice, the presiding judge shall
appoint the previous post-conviction counsel of the capital defendant
unless counsel is waived or good cause is shown to appoint another
qualified attorney from the list described in A.R.S. § 13-4041.

On the first notice in capital cases, appointed counsel for the
defendant shall have one hundred twenty days from the filing of the
notice to file a petition raising claims under Rule 32.1. A capital
defendant proceeding without counsel shall have one hundred twenty days
from the filing of the notice to file a petition. On the filing of a
successive notice, appointed counsel, or the defendant if proceeding
without counsel, shall file the petition within thirty days from the
filing of the notice. On a showing of good cause, a defendant in a
capital case may be granted a sixty day extension in which to file the
petition. Additional extensions of thirty days may be granted for good
cause. If a petition for post-conviction relief is not filed within one
hundred and eighty days from the date of appointment of counsel, or one
hundred and eighty days from the date the notice is filed, or the date a
request for counsel is denied if the defendant is proceeding without
counsel, the defendant or counsel for the defendant shall file a notice
in the Supreme Court, advising the court of the status of the
proceedings. Thereafter, defendant or counsel for the defendant shall file
status reports in the Supreme Court every sixty days until the petition
for post-conviction relief is filed.

(2) Rule 32 of-right and non-capital cases. Upon the filing of a
timely or first notice in a Rule 32 proceeding, the presiding judge, or
his or her designee, shall appoint counsel for the defendant within 15
days if requested and the defendant is determined to be indigent. Upon
the filing of all other notices in non-capital cases, the appointment of
counsel is within the discretion of the presiding judge. In non-capital
cases appointed counsel for the defendant shall have sixty days from the
date of appointment to file a petition raising claims under Rule 32.1. On
a showing of good cause, a defendant in a non-capital case may be granted
a thirty day extension within which to file the petition. Additional
extensions of thirty days shall be granted only upon a showing of
extraordinary circumstances.

In a Rule 32 of-right proceeding, counsel shall investigate the
defendant's case for any and all colorable claims. If counsel determines
there are no colorable claims which can be raised on the defendant's
behalf, counsel shall file a notice advising the court of this
determination. Counsel's role is then limited to acting as advisory
counsel until the trial court's final determination. Upon receipt of the
notice, the court shall extend the time for filing a petition by the
defendant in propria persona. The extension shall be 45 days from the
date the notice is filed. Any extensions beyond the 45 days shall be
granted only upon a showing of extraordinary circumstances.

A defendant proceeding without counsel shall have sixty days to file a
petition from the date the notice is filed or from the date the request
for counsel is denied.

d. Transcript preparation. If the trial court proceedings have
not been previously transcribed, the defendant may request on a form
provided by the clerk of court that certified transcripts be
prepared. The court shall expeditiously review the request and order only
those transcripts prepared that it deems necessary to resolve the issues
to be raised in the petition. The preparation of the transcripts shall be
at county expense if the defendant is indigent. The time for filing of
the petition shall be tolled from the time a request for the transcripts
is made until the transcripts are prepared or the request is denied.
Certified transcripts shall be prepared and filed within sixty days of
the order granting the request.

e. Assignment of judge. The proceeding shall be assigned to the
sentencing judge where possible. If it appears that the sentencing
judge's testimony will be relevant, that judge shall transfer the case to
another judge.

f. Stay of execution of death sentence; notification by Supreme Court.
If the defendant has received a sentence of death and the Supreme Court
has fixed the time for execution of the sentence, no stay of execution
shall be granted upon the filing of a successive petition except upon
separate application for a stay to the Supreme Court, setting forth with
particularity those issues not precluded under Rule 32.2. The Clerk of the
Supreme Court shall notify the defendant, the Attorney General, and the
Director of the State Department of Corrections of the granting of a
stay.

(Amended Oct. 21, 1980, effective Dec. 1, 1980; amended Oct. 11, 1989,
effective Dec. 1, 1989; amended June 2, 1992, effective Sept. 30, 1992;
amended Sept. 24, 1992, effective Sept. 30, 1992; amended Feb. 25, 1993;
amended July 28, 1993, effective Dec. 1, 1993; amended effective Oct.
31, 2000; amended May 31, 2002, effective June 1, 2002; amended by
R-05-0009, effective Dec. 1, 2005; amended effective January 1, 2007
by R-05-0037.)

How about Pennyslvania? He's served 26 months so far.
__________________
Jay Jay's Mom!

"Those that judge don't matter; Those that matter don't judge"!
Reply With Quote
  #4  
Old 12-07-2009, 05:57 PM
Paralegal USA Paralegal USA is offline
Registered User
 

Join Date: Feb 2008
Location: U.S.A.
Posts: 1,761
Thanks: 33
Thanked 853 Times in 518 Posts
Default

Quote:
Originally Posted by tee1964 View Post
How about Pennyslvania? He's served 26 months so far.
RULE 901. INITIATION OF POST-CONVICTION COLLATERAL PROCEEDINGS

(A) A petition for post-conviction collateral relief shall be filed
within one year of the date the judgment becomes final, except as
otherwise provided by statute.

(B) A proceeding for post-conviction collateral relief shall be
initiated by filing a petition and 3 copies with the clerk of the court
in which the defendant was convicted and sentenced. The petition shall be
verified by the defendant.

Note: Previous Rule 1501 adopted January 24, 1968, effective August 1,
1968; amended November 25, 1968, effective February 3, 1969; amended
February 15, 1974, effective immediately; rescinded December 11, 1981,
effective June 27, 1982; rescission vacated June 4, 1982; rescinded
November 9, 1984, effective January 2, 1985. Former Rule 1501 adopted
November 9, 1984, effective January 2, 1985; rescinded February 1, 1989,
effective July 1, 1989, and replaced by present Rule 902. Present Rule
1501 adopted February 1, 1989, effective July 1, 1989; amended March 22,
1993, effective January 1, 1994; amended August 11, 1997, effective
immediately; Comment revised July 23, 1999, effective September 1, 1999;
renumbered Rule 901 and amended March 1, 2000, effective April 1, 2001;
Comment revised June 4, 2004, effective November 1, 2004.



42 Pa.C.S.A. § 9543. Eligibility for relief

(a) General rule. — To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the evidence
all of the following:

(1) That the petitioner has been convicted of a crime under the laws
of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or
parole for the crime;

(ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may
commence serving the disputed sentence.

(2) That the conviction or sentence resulted from one or more of the
following:

(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances
of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place.

(ii) Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place.

(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful
maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or
waived.

(4) That the failure to litigate the issue prior to or during trial,
during unitary review or on direct appeal could not have been the
result of any rational, strategic or tactical decision by counsel.

(b) Exception. — Even if the petitioner has met the requirements of
subsection (a), the petition shall be dismissed if it appears at any time
that, because of delay in filing the petition, the Commonwealth has been
prejudiced either in its ability to respond to the petition or in its
ability to re-try the petitioner. A petition may be dismissed due to
delay in the filing by the petitioner only after a hearing upon a motion
to dismiss. This subsection does not apply if the petitioner shows that
the petition is based on grounds of which the petitioner could not have
discovered by the exercise of reasonable diligence before the delay
became prejudicial to the Commonwealth.

(c) Extradition. — If the petitioner's conviction and sentence resulted
from a trial conducted in his absence and if the petitioner has fled to a
foreign country that refuses to extradite him because a trial in absentia
was employed, the petitioner shall be entitled to the grant of a new
trial if the refusing country agrees by virtue of this provision to
return him and if the petitioner upon such return to this jurisdiction so
requests. This section shall apply, notwithstanding any other law or
judgment to the contrary.

1982, May 13, P.L. 417, No. 122, § 2, imd. effective. Amended 1988, April
13, P.L. 336, No. 47, § 3, imd. effective; 1995, Nov. 17, P.L. 1118,
No. 32 (Spec. Sess. No. 1), § 1, effective in 60 days; 1997, June 25, P.L. 324,
No. 33, § 2, imd. effective.
Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off
Forum Jump


All times are GMT -6. The time now is 01:01 AM.
Copyright © 2001- 2013 Prison Talk Online
Powered by vBulletin® Version 3.7.4
Copyright ©2000 - 2014, Jelsoft Enterprises Ltd.
Website Design & Custom vBulletin Skins by: Relivo Media
Message Board Statistics