The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Yoursheka D. George.
DIGEST
SB 360 Original 2020 Regular Session Connick
Present law provides that a person in custody may file a petition for post conviction relief seeking
to have the conviction and sentence set aside.
Present law provides that a person convicted of a felony prior to August 31, 2020, may file an
application for post conviction relief requesting DNA testing of an unknown sample secured in
relation to the offense for which he was convicted.
Present law requires an application for post conviction relief to allege that the applicant is factually
innocent of the crime for which he was convicted. Present law does not provide for a non-DNA-
based factually innocent claim.
Proposed law retains present law and creates an additional claim for post conviction relief for non-
DNA-based factual innocence.
Proposed law provides that a petitioner's first claim of non-DNA-based factual innocence that would
otherwise be barred from review on the merits by present law time limitations or procedural
objections for repetitive applications shall not be barred if the claim is filed on or before December
31, 2021. Provides that the exception to present law shall only apply to the claim of factual
innocence brought under proposed law and shall not apply to any other claims raised by the
petitioner. Provides that after December 31, 2021, applications for post conviction relief filed under
proposed law shall be subject to present law time limitations and procedural objections.
Proposed law requires a petitioner to present new, reliable, material, noncumulative, and exculpatory
scientific, physical, or nontestimonial documentary evidence that was not known or discoverable at
or prior to trial and that, when viewed in light of all of the relevant evidence, proves by clear and
convincing evidence that had the new evidence been presented at trial no rational jury would have
found the petitioner guilty beyond a reasonable doubt of either the offense of conviction or of any
responsive offense. Provides that recantations of trial witnesses shall not be sufficient to meet the
petitioner's burden of proof.
Proposed law authorizes a court to deny the claim for post conviction relief without an answer by
the state or by summary disposition, but prohibits the court from granting the claim without an
answer by the state and first affording the state and the petitioner an evidentiary hearing, which the
state may affirmatively waive in writing. Provides that a denial of the claim shall thereafter serve as
a bar to further applications for post conviction relief in accordance with present law regarding time
limitations and procedural objections for repetitive applications.
Proposed law provides that in accordance with present law the court shall dismiss an application if the state can show it was materially prejudiced in its ability to respond to, negate, or rebut the
allegations of the petition caused by events not under the control of the state which have transpired
since the date of original conviction.
Proposed law provides that a grant of post conviction relief under proposed law shall in no way
prevent the petitioner from being retried for the offense of conviction, for a lesser offense based on
the same facts, or for any other offense.
Proposed law provides that upon motion of the state or upon joint motion of the state and the
petitioner, the district court may order the testing or examination of any evidence relevant to the
offense of conviction in the custody and control of the clerk of court, the state, or the investigating
law enforcement agency.
Present law provides that if an application alleges a claim which, if established, would entitle the
petitioner to relief, the court shall order the custodian, through the district attorney in the parish in
which the defendant was convicted, to file any procedural objections he may have, or an answer on
the merits if there are no procedural objections, within a specified period not in excess of 30 days.
Proposed law retains present law but provides an exception for a response to a petitioner's claim
under proposed law to allow the district attorney 120 days to file any procedural objections or answer
on the merits.
Present law regarding procedural objections to post conviction relief applications, provides:
(1)Unless required in the interest of justice, any claim for relief that was fully litigated in an
appeal from the proceedings leading to the judgment of conviction and sentence shall not be
considered.
(2)If the application alleges a claim of which the petitioner had knowledge and inexcusably
failed to raise in the proceedings leading to conviction, the court shall deny relief.
(3)If the application alleges a claim which the petitioner raised in the trial court and inexcusably
failed to pursue on appeal, the court shall deny relief.
(4)A successive application shall be dismissed if it fails to raise a new or different claim or if
it raises a new or different claim that was inexcusably omitted from a prior application.
Present law provides that if the court considers dismissing an application for failure of the petitioner
to raise the claim in the proceedings leading to conviction, failure to urge the claim on appeal, or
failure to include the claim in a prior application, the court shall order the petitioner to state reasons
for his failure. If the court finds that the failure was excusable, it shall consider the merits of the
claim.
Proposed law retains present law and authorizes the state to affirmatively waive any procedural
objections. Requires that such waiver be expressed in writing and filed by the state into the district court record.
Present law provides that no application for post conviction relief, including applications which seek
an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final under the provisions of present law. Present law provides
certain enumerated exceptions to the two-year time limitation.
Proposed law retains present law and adds two more exceptions for a petitioner who asserts a claim
based on present law DNA or proposed law non-DNA-based factual innocence.
Proposed law authorizes the state to affirmatively waive any objection to the timeliness of an
application for post conviction relief provided such waiver is expressed in writing and filed by the
state into the district court record.
Proposed law grants discretion to the district court, upon the joint motion of the petitioner and the
district attorney, to deviate from the provisions of post conviction relief law.
Effective August 1, 2020.
(Amends C.Cr.P. Arts. 927, 930.3, 930.4 and 930.8; adds C.Cr.P. Arts. 926.2, 926.3, and 930.10)