13-4234

13-4234. Commencement of proceedings; notice;
appointment of counsel for capital defendants; assignment of
judge; stay

A. A proceeding is commenced by timely filing a notice of postconviction relief
with the clerk of the court in which the conviction occurred. The clerk of the trial
court shall provide notice forms for commencement of first and successive postconviction
relief proceedings. The notice shall bear the caption of the original criminal action to
which it pertains. The notice in successive postconviction relief proceedings shall
comply with section 13-4232, subsection B. On receipt of the notice, the clerk of the
trial court shall file a copy of the notice in the case file of each original action and
promptly send copies to the defendant, the defendant's attorney, if known, the county
attorney and the attorney general, noting the date and manner of sending the copies in
the record. The state shall notify the victim on request.

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

C. In noncapital cases, the notice shall be filed within ninety days after the
judgment and sentence are entered or within thirty days after the order and mandate
affirming the judgment and sentence is issued on direct appeal, whichever is later. A
defendant has sixty days from the filing of the notice in which to file a petition. On
the filing of a successive notice, a defendant has thirty days from the filing of the
notice in which to file a petition.

D. In capital cases, on the issuance of a mandate affirming the defendant's
conviction and sentence on direct appeal, the clerk of the supreme court expeditiously
shall file a notice of postconviction relief with the trial court. On the first notice
in capital cases, a defendant has sixty days from the filing of the notice in which to
file a petition. The supreme court shall appoint counsel pursuant to section 13-4041,
subsection B. All indigent state prisoners under a capital sentence are entitled to the
appointment of counsel to represent them in state postconviction proceedings. A
competent indigent defendant may reject the offer of counsel with an understanding of its
legal consequence. On successive notice in capital cases, the trial court shall appoint
the previous postconviction relief counsel of the capital defendant unless counsel is
waived pursuant to section 13-4041, subsection D or good cause exists to appoint another
qualified attorney pursuant to section 13-4041, subsection B. On the filing of a
successive notice, a capital defendant or an appointed attorney has thirty days from the
filing of the notice in which to file a petition.

E. A defendant who has pled guilty and who is precluded from filing a direct appeal
pursuant to section 13-4033 may be granted an additional thirty day extension of time in
which to file the petition if the defendant's counsel refuses to raise issues and leaves
the defendant insufficient time to file a petition within the time limits.

F. On a specific and detailed showing of good cause, a defendant in a noncapital
case may be granted up to a sixty day extension of time in which to file the
petition. On a specific and detailed showing of good cause, a defendant in a capital
case may be granted one thirty day extension of time in which to file the petition.

G. The time limits are jurisdictional, and an untimely filed notice or petition
shall be dismissed with prejudice.

H. If the record of the trial proceeding has not been transcribed, the defendant
may request on a form provided by the clerk of the superior court that the record be
prepared. The court shall order that those portions of the record be prepared that it
deems necessary to resolve the issues to be raised in the petition. The preparation of
the record is a county expense if the defendant is indigent. The time for filing the
petition is tolled from the time a request for the record is made until the record is
prepared or the request is denied.

I. The proceeding shall be assigned to the sentencing judge if it is possible. If
it appears that the sentencing judge's testimony is relevant, the sentencing judge shall
transfer the case to another judge.

J. If the defendant has received a sentence of death and the supreme court has
fixed the time for execution of the sentence, a stay of execution shall not be granted on
the filing of a second or subsequent petition except on separate application for a stay
to the supreme court setting forth with particularity those issues raised which are not
precluded under section 13-4232. The warrant shall not be stayed to allow for the filing
of a petition.