House Bill No. 127
Introduced By j. johnson
By Request of the Department of Justice
A Bill for an Act entitled: "An Act adopting standards established for death penalty cases by the Federal Antiterrorism and effective Death Penalty Act of 1996; imposing a time limit for the sentencing hearing in a death penalty case; generally revising laws pertaining to postconviction proceedings; providing an appropriation; amending sections 46-18-102, 46-18-301, 46-21-101, 46-21-102, 46-21-105, and 46-21-201, MCA; and providing effective dates and applicability dates."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 46-18-102, MCA, is amended to read:
"46-18-102. Rendering judgment and pronouncing sentence. (1) The judgment
shall must be rendered in open court.
(2) If the verdict or finding is not guilty, judgment
shall must be rendered immediately and the defendant shall must be
discharged from custody or from the obligation of his the bail bond.
If Except as provided in 46-18-301, if the verdict or finding is guilty, sentence shall must be pronounced and
judgment rendered within a reasonable time.
(b) When the sentence is pronounced, the judge shall clearly state for the record
his the reasons for imposing the sentence."
Section 2. Section 46-18-301, MCA, is amended to read:
"46-18-301. Hearing on imposition of death penalty. (1) When a defendant is found guilty of or pleads guilty to an
offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea
was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set
forth in 46-18-303 and 46-18-304 for the purpose of determining the sentence to be imposed. The hearing
shall must be
conducted before the court alone.
(2) (a) Subject to subsection (2)(b), the sentence must be pronounced and judgment rendered within 90 days after the defendant is found guilty or pleads guilty or within 90 days after the Montana supreme court enters a final decision on appeal.
(b) The district court may allow not more than one extension of up to 60 days after entering findings of fact that the extension is necessary to prevent undue hardship to a party."
Section 3. Section 46-21-101, MCA, is amended to read:
"46-21-101. When validity of sentence may be challenged. (1) A person adjudged guilty of an offense in a court of
record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution
or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the
sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the
maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a
writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed
or the supreme court to vacate, set aside, or correct the sentence or revocation order.
(2) If the sentence was imposed by a justice's, municipal, or city court, the petition may not be filed unless the petitioner has exhausted all appeal remedies provided by law. The petition must be filed with the district court in the county where the lower court is located.
(3) If the person is in custody, the person may elect to file the petition directly with the supreme court."
Section 4. Section 46-21-102, MCA, is amended to read:
"46-21-102. When petition may be filed. A petition for the relief referred to in 46-21-101 may be filed at any time
5 years 1 year of the date of that the conviction becomes final. A conviction becomes final for purposes of this
(1) the time for appeal to the Montana supreme court expires;
(2) if an appeal is taken to the Montana supreme court, the time for petitioning the United States supreme court for review expires; or
(3) if review is sought in the United States supreme court, on the date that that court issues its final order in the case."
Section 5. Section 46-21-105, MCA, is amended to read:
"46-21-105. Amendment of petition -- waiver of grounds for relief. (1) (a) All grounds for relief claimed by a
petitioner under 46-21-101 must be raised in the original or amended original petition. The original petition may be
amended only once. At the request of the state or on its own motion, the court shall set a deadline for the filing of
amended original petition. If a hearing will be held, the deadline must be reasonably in advance of the hearing but may not
be less than 30 days prior to the date of the hearing.
Those grounds for relief not raised in the original or amended petition are waived unless the court on hearing a
subsequent petition finds The court shall dismiss a second or subsequent petition by a person who has filed an original
petition unless the second or subsequent petition raises grounds for relief that could not reasonably have been raised in the
original or an amended original petition.
(2) When a petitioner has been afforded a direct appeal of the petitioner's conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or an amended original petition or in a second or subsequent petition. Ineffectiveness or incompetence of counsel in proceedings on an original or an amended original petition under this part may not be raised in a second or subsequent petition under this part."
Section 6. Section 46-21-201, MCA, is amended to read:
"46-21-201. Proceedings on petition. (1) (a) Unless the petition and the files and records of the case conclusively show
that the petitioner is not entitled to relief, the court shall cause notice of the petition to be served upon the county attorney
in the county in which the conviction took place and upon the attorney general and order them to file a responsive pleading
to the petition. Following its review of the responsive pleading, the court may dismiss the petition as a matter of law for
failure to state a claim for relief or it may
grant a prompt hearing on the petition, proceed to determine the issue , and make
findings of fact and conclusions with respect to the petition.
(b) If the death sentence has been imposed, upon receipt of the response or responses to the petition, the court shall promptly hold a conference to determine a schedule for the expeditious resolution of the proceeding. The court shall issue a decision within 90 days after the hearing on the petition or, if there is no hearing, within 90 days after the filing of briefs as allowed by rule or by court order. If the decision is not issued during that period, a party may petition the supreme court for a writ of mandate or other appropriate writ or relief to compel the issuance of a decision.
(c) To the extent that they are applicable and are not inconsistent with this chapter, the rules of procedure governing civil proceedings apply to the proceeding.
(2) If the death sentence has not been imposed and a hearing is required or if the interests of justice require, the court shall appoint counsel for a petitioner who qualifies for the appointment of counsel under Title 46, chapter 8, part 1.
(3) (a) Within 30 days after a conviction for which a death sentence was imposed becomes final, the sentencing court shall notify the sentenced person that if the person is indigent and wishes to file a petition under this chapter, the court will appoint counsel who meets the Montana supreme court's standards for competency of appointed counsel in proceedings under this chapter for an indigent person sentenced to death.
(b) Within 75 days after a conviction for which a death sentence was imposed upon a person who wishes to file a petition under this chapter becomes final, the sentencing court shall:
(i) appoint counsel to represent the person if the court finds that the person is indigent and either has accepted the offer of appointment or is unable to competently decide whether to accept the offer of appointed counsel;
(ii) if the offer is rejected by a person who understands the legal consequences of the rejection, enter findings of fact after a hearing, if the court determines that a hearing is necessary, stating that the person rejected the offer with an understanding of the legal consequences of the rejection; or
(iii) if the court finds that the petitioner is not indigent, deny appointment of counsel.
(c) The court may not appoint counsel who has previously represented the person at any stage in the case unless the person and the counsel expressly agree to the appointment.
(d) Violation of this subsection (3) is not a basis for a claim or relief under this chapter.
(3)(4) The court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or
civil proceedings. Discovery procedures may be used only to the extent and in the manner that the court has ordered or to
which the parties have agreed. (4)(5) The court may receive proof of affidavits, depositions, oral testimony, or other evidence. In its discretion, the court
may order the petitioner brought before the court for the hearing. (5)(6) If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or
sentence in the former proceedings and any supplementary orders as to reassignment, retrial, custody, bail, or discharge as
that may be necessary and proper. If the court finds for the prosecution, the petition must be dismissed."
NEW SECTION. Section 7. Attorney general petition to supreme court for competency standards. Within 60 days after [the effective date of this act], the attorney general shall, in compliance with 28 U.S.C. 2261, petition the supreme court for a court order establishing standards for competency of counsel appointed to represent indigent persons in proceedings under Title 46, chapter 21, who are sentenced to death. The court may hold appropriate proceedings on the petition, appoint a commission to advise it on competency standards, and adopt standards.
NEW SECTION. Section 8. Appropriation. There is appropriated $234,000 from the general fund to the department of justice for the biennium ending June 30, 1999, to implement [this act].
NEW SECTION. Section 9. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 10. Applicability. (1) Except as provided in subsection (2), [sections 3 through 6] apply to proceedings in which the conviction becomes final:
(a) after [the effective date of this act]; or
(b) during the 12 months prior to the [effective date of this act] if a petition under Title 46, chapter 21, is filed within the 12 months after [the effective date of this act].
(2) The provision in [section 6] that the notification must state that counsel to be appointed will meet supreme court standards for counsel applies to petitions for postconviction relief filed after [the effective date of standards adopted under section 7].
NEW SECTION. Section 11. Effective dates. (1) Except as provided in subsection (2), [this act] is effective on passage and approval.
(2) The provision in [section 6] that the notification must state that counsel to be appointed will meet supreme court standards for counsel is effective on [the effective date of standards adopted under section 7].