The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
SB 109 Original 2021 Regular Session Foil
Proposed law (C.Cr.P. Art. 924) provides for scope of applicability of Title XXXI-A of the Code of
Criminal Procedure relative to postconviction relief in noncapital cases.
Present law (C.Cr.P. Art. 924) provides for definitions.
Proposed law (C.Cr.P. Art. 924.1) retains present law but defines additional terms, makes semantic
changes, and updates cross-references.
Present law (C.Cr.P. Arts. 924.2 and 925) provides for the effect of an appeal and venue.
Proposed law retains present law but makes semantic changes.
Present law (C.Cr.P. Art. 930.8(A)) sets forth the time limitations applicable to applications for
postconviction relief and the exceptions to those time limitations.
Proposed law (C.Cr.P. Art. 926(A)) changes the exceptions provided by present law by clarifying
that facts that were known to the applicant's attorney are presumed to have been known by the
applicant, and facts that were contained in the record are deemed to have been known by the
applicant. Proposed law also makes semantic changes and requires the applicant to prove that he
exercised due diligence or that exceptional circumstances exist and the interest of justice will be
served by consideration of the claim.
Present law (C.Cr.P. Art. 930.8(B) and (C)) provides for the dismissal of a timely filed application
for postconviction relief if the state would be materially prejudiced in its ability to respond to,
negate, or rebut the petitioner's allegations and requires the court to inform the defendant of the
prescriptive period for postconviction relief.
Proposed law (C.Cr.P. Art. 926(B) and (C)) retain present law but clarifies that the material prejudice
defense provided by present law can be raised at any time prior to final submission of the case on
the merits and that the failure of the court to inform the defendant of the prescriptive period does not
constitute grounds to vacate the conviction and sentence or remand for resentencing.
Present law (C.Cr.P. Art. 926) sets forth the required contents of a petition for postconviction relief.
Proposed law (C.Cr.P. Art. 927) retains present law but makes semantic changes and also requires
the applicant to state whether this is his first application for postconviction relief as well as to
provide a list of all of the attorneys who represented the applicant. Proposed law further provides for
the notification of an applicant who fails to use the uniform form and for a copy of the application to be provided to the court and served on the state.
Proposed law (C.Cr.P. Art. 927.1) provides for the service of the application for postconviction relief
and all subsequent filings or orders on the state, the applicant, and his attorney.
Present law (C.Cr.P. Art. 930.2) provides that the petitioner has the burden of proving that relief
should be granted.
Proposed law (C.Cr.P. Art. 927.2) retains present law but makes semantic changes.
Present law (C.Cr.P. Art. 930.3) sets forth the grounds for postconviction relief.
Proposed law (C.Cr.P. Art. 927.3) changes present law by deleting the grounds for relief based on
double jeopardy and the unconstitutional ex post facto application of law.
Proposed law also makes semantic changes, updates cross-references, and adds a ground for relief
based on new evidence of factual innocence.
Proposed law (C.Cr.P. Art. 927.4) provides for the production of information in postconviction relief
cases.
Proposed law (C.Cr.P. Art. 927.5) provides for the waiver of the attorney-client privilege if the
application for postconviction relief is based on a claim of ineffective assistance of counsel.
Present law (C.Cr.P. Art. 928) provides that an application may be dismissed upon the pleadings if
it fails to allege a claim which, if established, would entitle the petitioner to relief.
Proposed law (C.Cr.P. Art. 927.6) changes present law by imposing a 60-day time limitation within
which the district court must act to dismiss the claim on the pleadings, order the applicant to respond
with a more definite statement, or order the state to respond. Proposed law further permits the court
to dismiss the claim if the applicant raises a claim which, if established, would not entitle him to
relief, or if the applicant fails to state a ground upon which relief can be granted, or if an examination
of the application and record clearly refutes any factual basis for the claim.
Proposed law (C.Cr.P. Art. 927.7) sets forth the circumstances under which the state can request that
the applicant provide a more definite statement as to any claim for relief and imposes a 60-day time
period within which the applicant must respond to the request, or if the request is denied, within
which the state must file procedural objections or an answer.
Proposed law (C.Cr.P. Art. 927.8) sets forth the circumstances under which the state may assert
procedural objections and requires the applicant to respond to the state's procedural objections within
45 days.
Proposed law (C.Cr.P. Art. 927.9) provides for the disposition of procedural objections by the court
and requires the court to rule on procedural objections summarily if possible or to defer disposition, order further factual development, and rule on all procedural objections together.
Proposed law (C.Cr.P. Art. 927.10) sets forth the circumstances under which the court is to order to
the state to answer on the merits of each claim within 60 days and provides that any responses to the
state's answer must be filed within 45 days.
Present law (C.Cr.P. Art. 929) provides for the summary disposition of an application for
postconviction relief.
Proposed law (C.Cr.P. Art. 927.11) changes present law by requiring the court to summarily grant
or deny relief within a certain period of time from the filing of the answer and by deleting the
provision that allowed the taking of oral depositions and the use of other discovery mechanisms,
which are now contained in proposed law (C.Cr.P. Art. 927.12).
Present law (C.Cr.P. Art. 930) sets forth the circumstances under which an evidentiary hearing for
the taking of testimony or other evidence can be ordered and provides that the petitioner is entitled
to be present at evidentiary hearings unless certain exceptions apply.
Proposed law (C.Cr.P. Art. 927.12) changes present law by deleting the requirement that the
petitioner be present at the evidentiary hearing and the provision that prohibited the court from
conducting an evidentiary hearing prior to ruling on all procedural objections, since these provisions
are now contained elsewhere. Proposed law provides for the taking of oral depositions and the use
of other discovery mechanisms and further provides that the district court should consider the rules
of evidence but that these rules do not strictly apply.
Present law (C.Cr.P. Art. 930.9) provides that if the petitioner for postconviction relief is
incarcerated, his presence may be obtained through teleconference, video link, or other visual remote
technology.
Proposed law (C.Cr.P. Art. 927.13) retains present law but makes semantic changes and further
provides that absent an express waiver and subject to certain exceptions, the applicant is entitled to
be physically present at an evidentiary hearing.
Present law (C.Cr.P. Art. 930.7) sets forth the circumstances under which courts are permitted and
are required to appoint counsel to represent a petitioner for postconviction relief.
Proposed law (C.Cr.P. Art. 927.14) retains present law but makes semantic changes.
Present law (C.Cr.P. Art. 930.1) provides that a copy of the judgment granting or denying
postconviction relief and the written or transcribed reasons therefor are to be furnished to the
petitioner, the district attorney, and the custodian.
Proposed law (C.Cr.P. Art. 927.15) retains present law but makes semantic changes and requires the
district court to render judgment within 60 days after submission of the case on the merits. Proposed
law further sets forth the relief that may be granted by the court. Present law (C.Cr.P. Art. 930.5) provides that if the court grants relief under an application for
postconviction relief, the petitioner is to be held in custody pending a new trial under certain
circumstances, in which case the petitioner is entitled to bail.
Proposed law (C.Cr.P. Art. 927.16) retains present law but makes semantic changes and requires a
finding by the court that there are legally sufficient grounds upon which to reprosecute the applicant.
Proposed law (C.Cr.P. Art. 927.17) allows the district court to deviate from these provisions upon
joint motion by the parties.
Present law (C.Cr.P. Art. 930.6) provides for appellate or supervisory review of trial court
judgments.
Proposed law (C.Cr.P. Art. 928) retains present law but makes semantic changes.
Proposed law (C.Cr.P. Arts. 930.1-930.27) set forth the procedures that apply in capital
postconviction relief cases.
Present law (C.Cr.P. Art. 926.1) sets forth the requirements applicable to applications for DNA
testing.
Proposed law (C.Cr.P. Art. 931) retains present law but makes semantic changes and updates
cross-references. Proposed law further provides the standard of proof relevant to questions
concerning the chain of custody of evidence and provides that where there is an insufficient sample
of the evidence to be tested, the lab cannot proceed without the consent of both parties or an order
from the court.
Proposed law (C.Cr.P. Art. 880.1) requires evidence to be retained by the clerk of court, the state,
and law enforcement agencies when a sentence of death or life imprisonment is imposed. Proposed
law further provides that in all other cases, the court in its discretion can enter an order to retain
evidence.
Present law (C.Cr.P. Art. 923) requires the clerk of the appellate court to transmit a certified copy
of the appellate court's decision to the court from which the appeal was taken.
Proposed law retains present law and also provides for the transmission of an electronic copy of the
appellate record by the clerk of the appellate court once the defendant's conviction and sentence
become final, provided that the defendant is imprisoned and has requested a copy of the record.
Present law (C.Cr.P. Arts. 931-934) provide for definitions for purposes of the Code of Criminal
Procedure.
Proposed law redesignates present law.
Effective August 1, 2021. (Amends C.Cr.P. Arts. 923, 924-928, 926.1, and 930.1-930.9; adds C.Cr.P. Arts. 880.1 and 930.10-
930.27; repeals C.Cr.P. Arts. 929 and 930; redesignates C.Cr.P. Arts. 926.1 and 931-934)