60-1507.Prisoner in custody undersentence.(a) Motion attacking sentence. A prisoner in custody under sentenceof a court of general jurisdiction claiming the right to be released uponthe ground that the sentence was imposed in violation of the constitutionor laws of the United States, or the constitution or laws of the state ofKansas, or that the court was without jurisdiction to impose such sentence,or that the sentence was in excess of the maximum authorized by law, or isotherwise subject to collateral attack, may, pursuant tothe time limitations imposed by subsection (f), move the courtwhich imposed the sentence to vacate, set aside or correct the sentence.
(b) Hearing and judgment. Unless the motion and the files andrecords of the case conclusively show that the prisoner is entitled to norelief, the court shall cause notice thereof to be served upon the countyattorney, grant a prompt hearing thereon, determine the issues and makefindings of fact and conclusions of law with respect thereto. The court mayentertain and determine such motion without requiring the production of theprisoner at the hearing. If the court finds that the judgment was renderedwithout jurisdiction, or that the sentence imposed was not authorized bylaw or is otherwise open to collateral attack, or that there has been sucha denial or infringement of the constitutional rights of the prisoner as torender the judgment vulnerable to collateral attack, the court shall vacateand set the judgment aside and shall discharge the prisoner or resentencesaid prisoner or grant a new trial or correct the sentence as may appear appropriate.
(c) Successive motions. The sentencing court shall not be requiredto entertain a second or successive motion for similar relief on behalf ofthe same prisoner.
(d) Appeal. An appeal may be taken to the appellate court as providedby law from theorder entered on the motion as from a final judgment on application for awrit of habeas corpus.
(e) Exclusiveness of remedy. An application for a writ of habeascorpus in behalf of a prisoner who is authorized to apply for relief bymotion pursuant to this section, shall not be entertained if it appearsthat the applicant has failed to apply for relief, by motion, to the courtwhich sentenced said applicant, or that such court has deniedsaid applicant relief, unless it also appears that the remedy by motionis inadequate or ineffective to test the legality of said applicant'sdetention.
(f) Time limitations. (1) Any action under this section must bebroughtwithin one year of: (i) The final order of the last appellate court in thisstate to exercise jurisdiction on a direct appeal or the termination of suchappellate jurisdiction; or (ii) the denial of a petition for writ of certiorarito the United States supreme court or issuance of such court's final orderfollowing granting such petition.
(2) The time limitation herein may be extended by the court only to prevent amanifest injustice.
History: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24;L. 2003, ch. 65, § 1; July 1.
60-1507.Prisoner in custody undersentence.(a) Motion attacking sentence. A prisoner in custody under sentenceof a court of general jurisdiction claiming the right to be released uponthe ground that the sentence was imposed in violation of the constitutionor laws of the United States, or the constitution or laws of the state ofKansas, or that the court was without jurisdiction to impose such sentence,or that the sentence was in excess of the maximum authorized by law, or isotherwise subject to collateral attack, may, pursuant tothe time limitations imposed by subsection (f), move the courtwhich imposed the sentence to vacate, set aside or correct the sentence.
(b) Hearing and judgment. Unless the motion and the files andrecords of the case conclusively show that the prisoner is entitled to norelief, the court shall cause notice thereof to be served upon the countyattorney, grant a prompt hearing thereon, determine the issues and makefindings of fact and conclusions of law with respect thereto. The court mayentertain and determine such motion without requiring the production of theprisoner at the hearing. If the court finds that the judgment was renderedwithout jurisdiction, or that the sentence imposed was not authorized bylaw or is otherwise open to collateral attack, or that there has been sucha denial or infringement of the constitutional rights of the prisoner as torender the judgment vulnerable to collateral attack, the court shall vacateand set the judgment aside and shall discharge the prisoner or resentencesaid prisoner or grant a new trial or correct the sentence as may appear appropriate.
(c) Successive motions. The sentencing court shall not be requiredto entertain a second or successive motion for similar relief on behalf ofthe same prisoner.
(d) Appeal. An appeal may be taken to the appellate court as providedby law from theorder entered on the motion as from a final judgment on application for awrit of habeas corpus.
(e) Exclusiveness of remedy. An application for a writ of habeascorpus in behalf of a prisoner who is authorized to apply for relief bymotion pursuant to this section, shall not be entertained if it appearsthat the applicant has failed to apply for relief, by motion, to the courtwhich sentenced said applicant, or that such court has deniedsaid applicant relief, unless it also appears that the remedy by motionis inadequate or ineffective to test the legality of said applicant'sdetention.
(f) Time limitations. (1) Any action under this section must bebroughtwithin one year of: (i) The final order of the last appellate court in thisstate to exercise jurisdiction on a direct appeal or the termination of suchappellate jurisdiction; or (ii) the denial of a petition for writ of certiorarito the United States supreme court or issuance of such court's final orderfollowing granting such petition.
(2) The time limitation herein may be extended by the court only to prevent amanifest injustice.
History: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24;L. 2003, ch. 65, § 1; July 1.
60-1507.Prisoner in custody undersentence.(a) Motion attacking sentence. A prisoner in custody under sentenceof a court of general jurisdiction claiming the right to be released uponthe ground that the sentence was imposed in violation of the constitutionor laws of the United States, or the constitution or laws of the state ofKansas, or that the court was without jurisdiction to impose such sentence,or that the sentence was in excess of the maximum authorized by law, or isotherwise subject to collateral attack, may, pursuant tothe time limitations imposed by subsection (f), move the courtwhich imposed the sentence to vacate, set aside or correct the sentence.
(b) Hearing and judgment. Unless the motion and the files andrecords of the case conclusively show that the prisoner is entitled to norelief, the court shall cause notice thereof to be served upon the countyattorney, grant a prompt hearing thereon, determine the issues and makefindings of fact and conclusions of law with respect thereto. The court mayentertain and determine such motion without requiring the production of theprisoner at the hearing. If the court finds that the judgment was renderedwithout jurisdiction, or that the sentence imposed was not authorized bylaw or is otherwise open to collateral attack, or that there has been sucha denial or infringement of the constitutional rights of the prisoner as torender the judgment vulnerable to collateral attack, the court shall vacateand set the judgment aside and shall discharge the prisoner or resentencesaid prisoner or grant a new trial or correct the sentence as may appear appropriate.
(c) Successive motions. The sentencing court shall not be requiredto entertain a second or successive motion for similar relief on behalf ofthe same prisoner.
(d) Appeal. An appeal may be taken to the appellate court as providedby law from theorder entered on the motion as from a final judgment on application for awrit of habeas corpus.
(e) Exclusiveness of remedy. An application for a writ of habeascorpus in behalf of a prisoner who is authorized to apply for relief bymotion pursuant to this section, shall not be entertained if it appearsthat the applicant has failed to apply for relief, by motion, to the courtwhich sentenced said applicant, or that such court has deniedsaid applicant relief, unless it also appears that the remedy by motionis inadequate or ineffective to test the legality of said applicant'sdetention.
(f) Time limitations. (1) Any action under this section must bebroughtwithin one year of: (i) The final order of the last appellate court in thisstate to exercise jurisdiction on a direct appeal or the termination of suchappellate jurisdiction; or (ii) the denial of a petition for writ of certiorarito the United States supreme court or issuance of such court's final orderfollowing granting such petition.
(2) The time limitation herein may be extended by the court only to prevent amanifest injustice.
History: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24;L. 2003, ch. 65, § 1; July 1.
