State Codes and Statutes

Statutes > Wyoming > Title7 > Chapter12

CHAPTER 12 - APPEAL, EXCEPTIONS AND NEW TRIAL

 

ARTICLE 1 - APPEAL AND BILL OF EXCEPTIONS

 

7-12-101. Manner of appeal.

 

A defendant may appeal his conviction inany criminal case in the manner provided by the Wyoming Rules of AppellateProcedure.

 

7-12-102. Right of district attorney to take exceptions;certification; rules.

 

The district attorney may take exceptionsto any opinion or decision of the court made during the prosecution of acriminal case. Before being filed in the supreme court, the bill of exceptionsshall be presented to the trial court which shall certify whether the contents ofthe bill are correct. If certified, the trial court shall sign the billcontaining the exceptions and affix the seal of the court and the bill shall bemade part of the record. The bill of exceptions shall be governed by rules asshall be promulgated by the Wyoming supreme court.

 

7-12-103. Filing of bill by attorney general in supreme court.

 

Following certification of a bill ofexceptions by the trial court as provided by W.S. 7-12-102, the attorneygeneral may apply to the supreme court for permission to file the bill forreview and decision upon the points presented. If the supreme court allows thebill to be filed, the judge who presided at the trial in which the bill wastaken shall appoint a competent attorney to argue the case against the stateand shall fix a reasonable fee for his service to be paid out of the treasuryof the county in which the bill was taken.

 

7-12-104. Decision of supreme court upon bill.

 

 

(a) If the bill of exceptions is allowed to be filed, thesupreme court shall render a decision on each point presented.

 

(b) The decision of the supreme court shall determine the lawto govern in any similar case which may be pending at the time the decision isrendered, or which may afterwards arise in the state, but shall not reverse norin any manner affect the judgment of the court in the case in which the bill ofexceptions was taken.

 

ARTICLE 2 - PROCEEDINGS UPON REVERSAL

 

7-12-201. Disposition of defendant.

 

 

(a) If the judgment of conviction of any defendant committed toa state penal institution is reversed on appeal, the clerk of the supreme courtshall forward to the department of corrections and to the administrator of theinstitution a certified copy of the court's mandate directing the defendant'sdischarge or a new trial.

 

(b) Upon receipt of the mandate the director of the departmentof corrections shall direct the administrator either to discharge the defendantor return the defendant to the county jail of the county in which the defendantwas convicted to be held in the custody of the sheriff pending a new trial.

 

ARTICLE 3 - NEW TRIAL

 

7-12-301. Repealed by Laws 1988, ch. 46, 2.

 

7-12-302. Short title.

 

This act shall be known and may be cited as the"Post-Conviction DNA Testing Act."

 

7-12-303. New trial; motion for post-conviction testing of DNA; motioncontents; sufficiency of allegations, consent to DNA sample; definitions.

 

(a) As used in this act:

 

(i) "DNA" means deoxyribonucleic acid;

 

(ii) "Movant" means the person filing a motion undersubsection (c) of this section;

 

(iii) "This act" means W.S. 7-12-302 through 7-12-315.

 

(b) Notwithstanding any law or rule of procedure that bars amotion for a new trial as untimely, a convicted person may use the results of aDNA test ordered pursuant to this act as the grounds for filing a motion for anew trial.

 

(c) A person convicted of a felony offense may, preliminary tothe filing of a motion for a new trial, file a motion for post-conviction DNAtesting in the district court that entered the judgment of conviction againsthim if the movant asserts under oath and the motion includes a good faith,particularized factual basis containing the following information:

 

(i) Why DNA evidence is material to:

 

(A) The identity of the perpetrator of, or accomplice to, thecrime;

 

(B) A sentence enhancement; or

 

(C) An aggravating factor alleged in a capital case.

 

(ii) That evidence is still in existence and is in a conditionthat allows DNA testing to be conducted;

 

(iii) That the chain of custody is sufficient to establish thatthe evidence has not been substituted, contaminated or altered in any materialaspect that would prevent reliable DNA testing;

 

(iv) That the specific evidence to be tested can be identified;

 

(v) That the type of DNA testing to be conducted is specified;

 

(vi) That the DNA testing employs a scientific methodsufficiently reliable and relevant to be admissible under the Wyoming Rules ofEvidence;

 

(vii) That a theory of defense can be presented, not inconsistentwith theories previously asserted at trial, that the requested DNA testingwould support;

 

(viii) That the evidence was not previously subjected to DNAtesting, or if the evidence was previously tested one (1) of the followingwould apply:

 

(A) The result of the testing was inconclusive;

 

(B) The evidence was not subjected to the testing that is nowrequested, and the new testing may resolve an issue not resolved by the priortesting; or

 

(C) The requested DNA test would provide results that aresignificantly more accurate and probative of the identity of the perpetrator oraccomplice.

 

(ix) That the evidence that is the subject of the request fortesting has the potential to produce new, noncumulative evidence that willestablish the movant's actual innocence.

 

(d) The court may not order DNA testing in cases in which thetrial or a plea of guilty or nolo contendere occurred after January 1, 2000 andthe person did not request DNA testing or present DNA evidence for strategic ortactical reasons or as a result of a lack of due diligence, unless the failureto exercise due diligence is found to be a result of ineffective assistance ofcounsel. A person convicted before January 1, 2000 shall not be required tomake a showing of due diligence under this subsection.

 

7-12-304. Service of process; response by the state; preservation ofevidence.

 

(a) Notice of the motion filed under W.S. 7-12-303(c) shall beserved upon the district attorney in the county in which the convictionoccurred and, if applicable, the governmental agency or laboratory holding theevidence sought to be tested.

 

(b) The district attorney who is served shall within sixty (60)days after receipt of service of a copy of the motion, or within any additionalperiod of time the court allows, answer or otherwise respond to the motionrequesting DNA testing.

 

(c) The district attorney who is served may support the motionrequesting DNA testing or oppose the motion with a statement of reasons and mayrecommend to the court, if any DNA testing is ordered, that a particular typeof testing should be conducted, or object to the proposed testing laboratory,or make such other objections, recommendations or requests as will preserve theintegrity of the evidence, including, but not limited to, requests for independenttesting by the state or procedures in the event that the proposed testing willdeplete the DNA sample.

 

(d) If a motion is filed pursuant to W.S. 7-12-303(c), and themotion asserts the evidence is in the custody of the state or its agents, thecourt shall order the state to preserve during the pendency of the proceedingall material and relevant evidence in the state's possession or control thatcould be subjected to DNA testing and analysis. The state shall prepare aninventory of the evidence and shall submit a copy of the inventory to themovant and to the court. If the state determines that the evidence is nolonger available, the state shall notify the court and the movant of the lossor destruction of the evidence and explain its loss or destruction. The stateshall provide copies of chain of custody documentation or other documentsexplaining the loss or destruction of the evidence. After a motion is filedunder W.S. 7-12-303(c), prosecutors in the case, law enforcement officers andcrime laboratory personnel shall cooperate in preserving material and relevantevidence and in determining the sufficiency of the chain of custody of theevidence which may be subject to DNA testing.

 

7-12-305. Review by the court; hearing on motion, findings; order.

 

(a) If the court determines that a motion is filed incompliance with the requirements of W.S. 7-12-303(c) and the state has hadopportunity to respond to the motion, the court shall set a hearing for notmore than ninety (90) days after the date the motion was filed. If the courtfinds that the motion does not comply with the requirements of W.S.7-12-303(c), the court may deny the motion without hearing.

 

(b) The hearing under subsection (a) of this section shall beheard by the judge who conducted the trial that resulted in the movant'sconviction unless the judge is unavailable.

 

(c) The movant and the state may present evidence by sworn andnotarized affidavits or by testimony; provided, however, any affidavit shall beserved on the opposing party at least fifteen (15) days prior to the hearing.

 

(d) The movant shall be required to present a prima facie caseshowing that the evidence supports findings consistent with the facts assertedunder W.S. 7-12-303(c) and DNA testing of the specified evidence would,assuming exculpatory results, establish:

 

(i) The actual innocence of the movant of the offense for whichthe movant was convicted; or

 

(ii) In a capital case:

 

(A) The movant's actual innocence of the charged or unchargedconduct constituting an aggravating circumstance; or

 

(B) A mitigating circumstance as a result of the DNA testing.

 

(e) If the court finds that the movant has presented a primafacie case showing that the evidence supports findings consistent with W.S.7-12-303(c) and the evidence would establish actual innocence, the court mayorder testing, subject to W.S. 7-12-306.

 

7-12-306. Designation of testing laboratory.

 

(a) If the court orders DNA testing pursuant to W.S.7-12-305(e), the DNA test shall be performed by the Wyoming state crimelaboratory unless the movant establishes that the state crime laboratory has aconflict of interest or does not have the capability to perform the necessarytesting.

 

(b) If the court orders that the DNA testing under W.S.7-12-305(e) shall be conducted by a laboratory other than the state crimelaboratory, the court shall require that the testing be performed:

 

(i) Under reasonable conditions designed to protect the state'sinterests in the integrity of the evidence;

 

(ii) By a laboratory that:

 

(A) Meets standards that at minimum comply with the standardsof the DNA advisory board established pursuant to 42 U.S.C. 14131; and

 

(B) Is accredited by the American society of crime laboratorydirectors accreditation board.

 

7-12-307. Discovery.

 

(a) If the DNA evidence being tested under this act has beenpreviously subjected to DNA analysis by either the state or defense prior tothe hearing conducted under W.S. 7-12-305, the court may order the state ordefense to provide each party and the court with access to the laboratoryreports prepared in connection with the DNA analysis, as well as the underlyingdata and laboratory notes. If DNA or other analysis was previously conductedby either the state or defense without the knowledge of the other party, allinformation relating to the testing shall be disclosed by the motion filedunder W.S. 7-12-303(c) or any response thereto.

 

(b) The results of any DNA testing ordered under W.S.7-12-305(e) shall be fully disclosed to the movant, the district attorney, theattorney general and the court. If requested by any party, the court shallorder production of the underlying laboratory data and notes or chain ofcustody documents.

 

7-12-308. Right to counsel.

 

A convicted person is entitled to counsel during aproceeding under this act. Upon request of the person, the court shall appointcounsel for the convicted person if the court determines that the person isneedy and the person wishes to submit a motion under W.S. 7-12-303(c). Counselshall be appointed as provided in W.S. 7-6-104(c)(viii).

 

7-12-309. Costs of testing.

 

(a) The person filing a motion under W.S. 7-12-303(c) shallbear the cost of the DNA testing unless:

 

(i) The person is serving a sentence of imprisonment;

 

(ii) The person is needy; and

 

(iii) The DNA test supports the person's motion.

 

(b) In the case of a person meeting the criteria specified inparagraphs (a)(i) through (iii) of this section, the costs of testing shall bepaid by the state.

 

7-12-310. Order following testing.

 

(a) If the results of the DNA analysis are inconclusive or showthat the movant is the source of the evidence, the court shall deny any motionfor a new trial based upon the DNA evidence and shall provide the results tothe board of parole.

 

(b) If the results of the DNA analysis are consistent withassertions contained in the movant's motion, the court shall set the matter forhearing on the motion for a new trial.

 

(c) Upon the stipulation of both parties or a motion fordismissal of the original charges against the movant by the state in lieu of aretrial, the court shall:

 

(i) Vacate the movant's conviction consistent with the evidencedemonstrating the movant's actual innocence;

 

(ii) Issue an order of actual innocence and exoneration; and

 

(iii) Issue an order of expungement.

 

(d) In the event a retrial is pursued and conducted and themovant is acquitted at the retrial, the court shall:

 

(i) Issue an order of actual innocence and exoneration; and

 

(ii) Issue an order of expungement.

 

7-12-311. Victim notification.

 

Following any motion filed under this act, the districtattorney shall provide notice to the victim that the motion has been filed, thetime and place for any hearing that may be held as a result of the motion, andthe disposition of the motion. For purposes of this section,"victim" means as defined in W.S. 1-40-202(a)(ii).

 

7-12-312. Rights not waived; refiling of uncharged offenses.

 

(a) Notwithstanding any other provision of law, the right tofile a motion under W.S. 7-12-303(c) shall not be waived. The prohibitionagainst waiver of the right provided under this section applies to, but is notlimited to, a waiver that is given as part of an agreement resulting in a pleaof guilty or nolo contendere.

 

(b) If a movant is granted a new trial under this act, anyoffense that was dismissed or not charged pursuant to a plea agreement thatresulted in the conviction that has been set aside as a result of this act maybe refiled by the state.

 

7-12-313. Appeal.

 

(a) An order granting or denying a motion for DNA testing filedunder W.S. 7-12-303(c) shall not be appealable, but may be subject to reviewonly under a writ of review filed by the movant, the district attorney or theattorney general. The petition for a writ of review may be filed no later thantwenty (20) days after the court's order granting or denying the motion for DNAtesting.

 

(b) Any party to the action may appeal to the Wyoming supremecourt any order granting or denying a motion for a new trial under W.S.7-12-310(b).

 

7-12-314. Subsequent motions.

 

The court shall not be required to entertain a second orsubsequent motion under W.S. 7-12-303(c) on behalf of the same movant, exceptwhere there is clear and compelling evidence that the evidence sought to betested was wrongfully withheld from the movant by the state or its agents.

 

7-12-315. Consensual testing.

 

Nothing in this act shall be interpreted to prohibit aconvicted person and the state from consenting to and conducting post-convictionDNA testing without filing a motion under W.S. 7-12-303(c). Notwithstandingany other provision of law governing post-conviction relief, if DNA testresults are obtained under testing conducted upon consent of the parties andthe results are favorable to the convicted person, the convicted person mayfile, and the court shall adjudicate, a motion for a new trial based on the DNAtest results.

 

State Codes and Statutes

Statutes > Wyoming > Title7 > Chapter12

CHAPTER 12 - APPEAL, EXCEPTIONS AND NEW TRIAL

 

ARTICLE 1 - APPEAL AND BILL OF EXCEPTIONS

 

7-12-101. Manner of appeal.

 

A defendant may appeal his conviction inany criminal case in the manner provided by the Wyoming Rules of AppellateProcedure.

 

7-12-102. Right of district attorney to take exceptions;certification; rules.

 

The district attorney may take exceptionsto any opinion or decision of the court made during the prosecution of acriminal case. Before being filed in the supreme court, the bill of exceptionsshall be presented to the trial court which shall certify whether the contents ofthe bill are correct. If certified, the trial court shall sign the billcontaining the exceptions and affix the seal of the court and the bill shall bemade part of the record. The bill of exceptions shall be governed by rules asshall be promulgated by the Wyoming supreme court.

 

7-12-103. Filing of bill by attorney general in supreme court.

 

Following certification of a bill ofexceptions by the trial court as provided by W.S. 7-12-102, the attorneygeneral may apply to the supreme court for permission to file the bill forreview and decision upon the points presented. If the supreme court allows thebill to be filed, the judge who presided at the trial in which the bill wastaken shall appoint a competent attorney to argue the case against the stateand shall fix a reasonable fee for his service to be paid out of the treasuryof the county in which the bill was taken.

 

7-12-104. Decision of supreme court upon bill.

 

 

(a) If the bill of exceptions is allowed to be filed, thesupreme court shall render a decision on each point presented.

 

(b) The decision of the supreme court shall determine the lawto govern in any similar case which may be pending at the time the decision isrendered, or which may afterwards arise in the state, but shall not reverse norin any manner affect the judgment of the court in the case in which the bill ofexceptions was taken.

 

ARTICLE 2 - PROCEEDINGS UPON REVERSAL

 

7-12-201. Disposition of defendant.

 

 

(a) If the judgment of conviction of any defendant committed toa state penal institution is reversed on appeal, the clerk of the supreme courtshall forward to the department of corrections and to the administrator of theinstitution a certified copy of the court's mandate directing the defendant'sdischarge or a new trial.

 

(b) Upon receipt of the mandate the director of the departmentof corrections shall direct the administrator either to discharge the defendantor return the defendant to the county jail of the county in which the defendantwas convicted to be held in the custody of the sheriff pending a new trial.

 

ARTICLE 3 - NEW TRIAL

 

7-12-301. Repealed by Laws 1988, ch. 46, 2.

 

7-12-302. Short title.

 

This act shall be known and may be cited as the"Post-Conviction DNA Testing Act."

 

7-12-303. New trial; motion for post-conviction testing of DNA; motioncontents; sufficiency of allegations, consent to DNA sample; definitions.

 

(a) As used in this act:

 

(i) "DNA" means deoxyribonucleic acid;

 

(ii) "Movant" means the person filing a motion undersubsection (c) of this section;

 

(iii) "This act" means W.S. 7-12-302 through 7-12-315.

 

(b) Notwithstanding any law or rule of procedure that bars amotion for a new trial as untimely, a convicted person may use the results of aDNA test ordered pursuant to this act as the grounds for filing a motion for anew trial.

 

(c) A person convicted of a felony offense may, preliminary tothe filing of a motion for a new trial, file a motion for post-conviction DNAtesting in the district court that entered the judgment of conviction againsthim if the movant asserts under oath and the motion includes a good faith,particularized factual basis containing the following information:

 

(i) Why DNA evidence is material to:

 

(A) The identity of the perpetrator of, or accomplice to, thecrime;

 

(B) A sentence enhancement; or

 

(C) An aggravating factor alleged in a capital case.

 

(ii) That evidence is still in existence and is in a conditionthat allows DNA testing to be conducted;

 

(iii) That the chain of custody is sufficient to establish thatthe evidence has not been substituted, contaminated or altered in any materialaspect that would prevent reliable DNA testing;

 

(iv) That the specific evidence to be tested can be identified;

 

(v) That the type of DNA testing to be conducted is specified;

 

(vi) That the DNA testing employs a scientific methodsufficiently reliable and relevant to be admissible under the Wyoming Rules ofEvidence;

 

(vii) That a theory of defense can be presented, not inconsistentwith theories previously asserted at trial, that the requested DNA testingwould support;

 

(viii) That the evidence was not previously subjected to DNAtesting, or if the evidence was previously tested one (1) of the followingwould apply:

 

(A) The result of the testing was inconclusive;

 

(B) The evidence was not subjected to the testing that is nowrequested, and the new testing may resolve an issue not resolved by the priortesting; or

 

(C) The requested DNA test would provide results that aresignificantly more accurate and probative of the identity of the perpetrator oraccomplice.

 

(ix) That the evidence that is the subject of the request fortesting has the potential to produce new, noncumulative evidence that willestablish the movant's actual innocence.

 

(d) The court may not order DNA testing in cases in which thetrial or a plea of guilty or nolo contendere occurred after January 1, 2000 andthe person did not request DNA testing or present DNA evidence for strategic ortactical reasons or as a result of a lack of due diligence, unless the failureto exercise due diligence is found to be a result of ineffective assistance ofcounsel. A person convicted before January 1, 2000 shall not be required tomake a showing of due diligence under this subsection.

 

7-12-304. Service of process; response by the state; preservation ofevidence.

 

(a) Notice of the motion filed under W.S. 7-12-303(c) shall beserved upon the district attorney in the county in which the convictionoccurred and, if applicable, the governmental agency or laboratory holding theevidence sought to be tested.

 

(b) The district attorney who is served shall within sixty (60)days after receipt of service of a copy of the motion, or within any additionalperiod of time the court allows, answer or otherwise respond to the motionrequesting DNA testing.

 

(c) The district attorney who is served may support the motionrequesting DNA testing or oppose the motion with a statement of reasons and mayrecommend to the court, if any DNA testing is ordered, that a particular typeof testing should be conducted, or object to the proposed testing laboratory,or make such other objections, recommendations or requests as will preserve theintegrity of the evidence, including, but not limited to, requests for independenttesting by the state or procedures in the event that the proposed testing willdeplete the DNA sample.

 

(d) If a motion is filed pursuant to W.S. 7-12-303(c), and themotion asserts the evidence is in the custody of the state or its agents, thecourt shall order the state to preserve during the pendency of the proceedingall material and relevant evidence in the state's possession or control thatcould be subjected to DNA testing and analysis. The state shall prepare aninventory of the evidence and shall submit a copy of the inventory to themovant and to the court. If the state determines that the evidence is nolonger available, the state shall notify the court and the movant of the lossor destruction of the evidence and explain its loss or destruction. The stateshall provide copies of chain of custody documentation or other documentsexplaining the loss or destruction of the evidence. After a motion is filedunder W.S. 7-12-303(c), prosecutors in the case, law enforcement officers andcrime laboratory personnel shall cooperate in preserving material and relevantevidence and in determining the sufficiency of the chain of custody of theevidence which may be subject to DNA testing.

 

7-12-305. Review by the court; hearing on motion, findings; order.

 

(a) If the court determines that a motion is filed incompliance with the requirements of W.S. 7-12-303(c) and the state has hadopportunity to respond to the motion, the court shall set a hearing for notmore than ninety (90) days after the date the motion was filed. If the courtfinds that the motion does not comply with the requirements of W.S.7-12-303(c), the court may deny the motion without hearing.

 

(b) The hearing under subsection (a) of this section shall beheard by the judge who conducted the trial that resulted in the movant'sconviction unless the judge is unavailable.

 

(c) The movant and the state may present evidence by sworn andnotarized affidavits or by testimony; provided, however, any affidavit shall beserved on the opposing party at least fifteen (15) days prior to the hearing.

 

(d) The movant shall be required to present a prima facie caseshowing that the evidence supports findings consistent with the facts assertedunder W.S. 7-12-303(c) and DNA testing of the specified evidence would,assuming exculpatory results, establish:

 

(i) The actual innocence of the movant of the offense for whichthe movant was convicted; or

 

(ii) In a capital case:

 

(A) The movant's actual innocence of the charged or unchargedconduct constituting an aggravating circumstance; or

 

(B) A mitigating circumstance as a result of the DNA testing.

 

(e) If the court finds that the movant has presented a primafacie case showing that the evidence supports findings consistent with W.S.7-12-303(c) and the evidence would establish actual innocence, the court mayorder testing, subject to W.S. 7-12-306.

 

7-12-306. Designation of testing laboratory.

 

(a) If the court orders DNA testing pursuant to W.S.7-12-305(e), the DNA test shall be performed by the Wyoming state crimelaboratory unless the movant establishes that the state crime laboratory has aconflict of interest or does not have the capability to perform the necessarytesting.

 

(b) If the court orders that the DNA testing under W.S.7-12-305(e) shall be conducted by a laboratory other than the state crimelaboratory, the court shall require that the testing be performed:

 

(i) Under reasonable conditions designed to protect the state'sinterests in the integrity of the evidence;

 

(ii) By a laboratory that:

 

(A) Meets standards that at minimum comply with the standardsof the DNA advisory board established pursuant to 42 U.S.C. 14131; and

 

(B) Is accredited by the American society of crime laboratorydirectors accreditation board.

 

7-12-307. Discovery.

 

(a) If the DNA evidence being tested under this act has beenpreviously subjected to DNA analysis by either the state or defense prior tothe hearing conducted under W.S. 7-12-305, the court may order the state ordefense to provide each party and the court with access to the laboratoryreports prepared in connection with the DNA analysis, as well as the underlyingdata and laboratory notes. If DNA or other analysis was previously conductedby either the state or defense without the knowledge of the other party, allinformation relating to the testing shall be disclosed by the motion filedunder W.S. 7-12-303(c) or any response thereto.

 

(b) The results of any DNA testing ordered under W.S.7-12-305(e) shall be fully disclosed to the movant, the district attorney, theattorney general and the court. If requested by any party, the court shallorder production of the underlying laboratory data and notes or chain ofcustody documents.

 

7-12-308. Right to counsel.

 

A convicted person is entitled to counsel during aproceeding under this act. Upon request of the person, the court shall appointcounsel for the convicted person if the court determines that the person isneedy and the person wishes to submit a motion under W.S. 7-12-303(c). Counselshall be appointed as provided in W.S. 7-6-104(c)(viii).

 

7-12-309. Costs of testing.

 

(a) The person filing a motion under W.S. 7-12-303(c) shallbear the cost of the DNA testing unless:

 

(i) The person is serving a sentence of imprisonment;

 

(ii) The person is needy; and

 

(iii) The DNA test supports the person's motion.

 

(b) In the case of a person meeting the criteria specified inparagraphs (a)(i) through (iii) of this section, the costs of testing shall bepaid by the state.

 

7-12-310. Order following testing.

 

(a) If the results of the DNA analysis are inconclusive or showthat the movant is the source of the evidence, the court shall deny any motionfor a new trial based upon the DNA evidence and shall provide the results tothe board of parole.

 

(b) If the results of the DNA analysis are consistent withassertions contained in the movant's motion, the court shall set the matter forhearing on the motion for a new trial.

 

(c) Upon the stipulation of both parties or a motion fordismissal of the original charges against the movant by the state in lieu of aretrial, the court shall:

 

(i) Vacate the movant's conviction consistent with the evidencedemonstrating the movant's actual innocence;

 

(ii) Issue an order of actual innocence and exoneration; and

 

(iii) Issue an order of expungement.

 

(d) In the event a retrial is pursued and conducted and themovant is acquitted at the retrial, the court shall:

 

(i) Issue an order of actual innocence and exoneration; and

 

(ii) Issue an order of expungement.

 

7-12-311. Victim notification.

 

Following any motion filed under this act, the districtattorney shall provide notice to the victim that the motion has been filed, thetime and place for any hearing that may be held as a result of the motion, andthe disposition of the motion. For purposes of this section,"victim" means as defined in W.S. 1-40-202(a)(ii).

 

7-12-312. Rights not waived; refiling of uncharged offenses.

 

(a) Notwithstanding any other provision of law, the right tofile a motion under W.S. 7-12-303(c) shall not be waived. The prohibitionagainst waiver of the right provided under this section applies to, but is notlimited to, a waiver that is given as part of an agreement resulting in a pleaof guilty or nolo contendere.

 

(b) If a movant is granted a new trial under this act, anyoffense that was dismissed or not charged pursuant to a plea agreement thatresulted in the conviction that has been set aside as a result of this act maybe refiled by the state.

 

7-12-313. Appeal.

 

(a) An order granting or denying a motion for DNA testing filedunder W.S. 7-12-303(c) shall not be appealable, but may be subject to reviewonly under a writ of review filed by the movant, the district attorney or theattorney general. The petition for a writ of review may be filed no later thantwenty (20) days after the court's order granting or denying the motion for DNAtesting.

 

(b) Any party to the action may appeal to the Wyoming supremecourt any order granting or denying a motion for a new trial under W.S.7-12-310(b).

 

7-12-314. Subsequent motions.

 

The court shall not be required to entertain a second orsubsequent motion under W.S. 7-12-303(c) on behalf of the same movant, exceptwhere there is clear and compelling evidence that the evidence sought to betested was wrongfully withheld from the movant by the state or its agents.

 

7-12-315. Consensual testing.

 

Nothing in this act shall be interpreted to prohibit aconvicted person and the state from consenting to and conducting post-convictionDNA testing without filing a motion under W.S. 7-12-303(c). Notwithstandingany other provision of law governing post-conviction relief, if DNA testresults are obtained under testing conducted upon consent of the parties andthe results are favorable to the convicted person, the convicted person mayfile, and the court shall adjudicate, a motion for a new trial based on the DNAtest results.

 


State Codes and Statutes

State Codes and Statutes

Statutes > Wyoming > Title7 > Chapter12

CHAPTER 12 - APPEAL, EXCEPTIONS AND NEW TRIAL

 

ARTICLE 1 - APPEAL AND BILL OF EXCEPTIONS

 

7-12-101. Manner of appeal.

 

A defendant may appeal his conviction inany criminal case in the manner provided by the Wyoming Rules of AppellateProcedure.

 

7-12-102. Right of district attorney to take exceptions;certification; rules.

 

The district attorney may take exceptionsto any opinion or decision of the court made during the prosecution of acriminal case. Before being filed in the supreme court, the bill of exceptionsshall be presented to the trial court which shall certify whether the contents ofthe bill are correct. If certified, the trial court shall sign the billcontaining the exceptions and affix the seal of the court and the bill shall bemade part of the record. The bill of exceptions shall be governed by rules asshall be promulgated by the Wyoming supreme court.

 

7-12-103. Filing of bill by attorney general in supreme court.

 

Following certification of a bill ofexceptions by the trial court as provided by W.S. 7-12-102, the attorneygeneral may apply to the supreme court for permission to file the bill forreview and decision upon the points presented. If the supreme court allows thebill to be filed, the judge who presided at the trial in which the bill wastaken shall appoint a competent attorney to argue the case against the stateand shall fix a reasonable fee for his service to be paid out of the treasuryof the county in which the bill was taken.

 

7-12-104. Decision of supreme court upon bill.

 

 

(a) If the bill of exceptions is allowed to be filed, thesupreme court shall render a decision on each point presented.

 

(b) The decision of the supreme court shall determine the lawto govern in any similar case which may be pending at the time the decision isrendered, or which may afterwards arise in the state, but shall not reverse norin any manner affect the judgment of the court in the case in which the bill ofexceptions was taken.

 

ARTICLE 2 - PROCEEDINGS UPON REVERSAL

 

7-12-201. Disposition of defendant.

 

 

(a) If the judgment of conviction of any defendant committed toa state penal institution is reversed on appeal, the clerk of the supreme courtshall forward to the department of corrections and to the administrator of theinstitution a certified copy of the court's mandate directing the defendant'sdischarge or a new trial.

 

(b) Upon receipt of the mandate the director of the departmentof corrections shall direct the administrator either to discharge the defendantor return the defendant to the county jail of the county in which the defendantwas convicted to be held in the custody of the sheriff pending a new trial.

 

ARTICLE 3 - NEW TRIAL

 

7-12-301. Repealed by Laws 1988, ch. 46, 2.

 

7-12-302. Short title.

 

This act shall be known and may be cited as the"Post-Conviction DNA Testing Act."

 

7-12-303. New trial; motion for post-conviction testing of DNA; motioncontents; sufficiency of allegations, consent to DNA sample; definitions.

 

(a) As used in this act:

 

(i) "DNA" means deoxyribonucleic acid;

 

(ii) "Movant" means the person filing a motion undersubsection (c) of this section;

 

(iii) "This act" means W.S. 7-12-302 through 7-12-315.

 

(b) Notwithstanding any law or rule of procedure that bars amotion for a new trial as untimely, a convicted person may use the results of aDNA test ordered pursuant to this act as the grounds for filing a motion for anew trial.

 

(c) A person convicted of a felony offense may, preliminary tothe filing of a motion for a new trial, file a motion for post-conviction DNAtesting in the district court that entered the judgment of conviction againsthim if the movant asserts under oath and the motion includes a good faith,particularized factual basis containing the following information:

 

(i) Why DNA evidence is material to:

 

(A) The identity of the perpetrator of, or accomplice to, thecrime;

 

(B) A sentence enhancement; or

 

(C) An aggravating factor alleged in a capital case.

 

(ii) That evidence is still in existence and is in a conditionthat allows DNA testing to be conducted;

 

(iii) That the chain of custody is sufficient to establish thatthe evidence has not been substituted, contaminated or altered in any materialaspect that would prevent reliable DNA testing;

 

(iv) That the specific evidence to be tested can be identified;

 

(v) That the type of DNA testing to be conducted is specified;

 

(vi) That the DNA testing employs a scientific methodsufficiently reliable and relevant to be admissible under the Wyoming Rules ofEvidence;

 

(vii) That a theory of defense can be presented, not inconsistentwith theories previously asserted at trial, that the requested DNA testingwould support;

 

(viii) That the evidence was not previously subjected to DNAtesting, or if the evidence was previously tested one (1) of the followingwould apply:

 

(A) The result of the testing was inconclusive;

 

(B) The evidence was not subjected to the testing that is nowrequested, and the new testing may resolve an issue not resolved by the priortesting; or

 

(C) The requested DNA test would provide results that aresignificantly more accurate and probative of the identity of the perpetrator oraccomplice.

 

(ix) That the evidence that is the subject of the request fortesting has the potential to produce new, noncumulative evidence that willestablish the movant's actual innocence.

 

(d) The court may not order DNA testing in cases in which thetrial or a plea of guilty or nolo contendere occurred after January 1, 2000 andthe person did not request DNA testing or present DNA evidence for strategic ortactical reasons or as a result of a lack of due diligence, unless the failureto exercise due diligence is found to be a result of ineffective assistance ofcounsel. A person convicted before January 1, 2000 shall not be required tomake a showing of due diligence under this subsection.

 

7-12-304. Service of process; response by the state; preservation ofevidence.

 

(a) Notice of the motion filed under W.S. 7-12-303(c) shall beserved upon the district attorney in the county in which the convictionoccurred and, if applicable, the governmental agency or laboratory holding theevidence sought to be tested.

 

(b) The district attorney who is served shall within sixty (60)days after receipt of service of a copy of the motion, or within any additionalperiod of time the court allows, answer or otherwise respond to the motionrequesting DNA testing.

 

(c) The district attorney who is served may support the motionrequesting DNA testing or oppose the motion with a statement of reasons and mayrecommend to the court, if any DNA testing is ordered, that a particular typeof testing should be conducted, or object to the proposed testing laboratory,or make such other objections, recommendations or requests as will preserve theintegrity of the evidence, including, but not limited to, requests for independenttesting by the state or procedures in the event that the proposed testing willdeplete the DNA sample.

 

(d) If a motion is filed pursuant to W.S. 7-12-303(c), and themotion asserts the evidence is in the custody of the state or its agents, thecourt shall order the state to preserve during the pendency of the proceedingall material and relevant evidence in the state's possession or control thatcould be subjected to DNA testing and analysis. The state shall prepare aninventory of the evidence and shall submit a copy of the inventory to themovant and to the court. If the state determines that the evidence is nolonger available, the state shall notify the court and the movant of the lossor destruction of the evidence and explain its loss or destruction. The stateshall provide copies of chain of custody documentation or other documentsexplaining the loss or destruction of the evidence. After a motion is filedunder W.S. 7-12-303(c), prosecutors in the case, law enforcement officers andcrime laboratory personnel shall cooperate in preserving material and relevantevidence and in determining the sufficiency of the chain of custody of theevidence which may be subject to DNA testing.

 

7-12-305. Review by the court; hearing on motion, findings; order.

 

(a) If the court determines that a motion is filed incompliance with the requirements of W.S. 7-12-303(c) and the state has hadopportunity to respond to the motion, the court shall set a hearing for notmore than ninety (90) days after the date the motion was filed. If the courtfinds that the motion does not comply with the requirements of W.S.7-12-303(c), the court may deny the motion without hearing.

 

(b) The hearing under subsection (a) of this section shall beheard by the judge who conducted the trial that resulted in the movant'sconviction unless the judge is unavailable.

 

(c) The movant and the state may present evidence by sworn andnotarized affidavits or by testimony; provided, however, any affidavit shall beserved on the opposing party at least fifteen (15) days prior to the hearing.

 

(d) The movant shall be required to present a prima facie caseshowing that the evidence supports findings consistent with the facts assertedunder W.S. 7-12-303(c) and DNA testing of the specified evidence would,assuming exculpatory results, establish:

 

(i) The actual innocence of the movant of the offense for whichthe movant was convicted; or

 

(ii) In a capital case:

 

(A) The movant's actual innocence of the charged or unchargedconduct constituting an aggravating circumstance; or

 

(B) A mitigating circumstance as a result of the DNA testing.

 

(e) If the court finds that the movant has presented a primafacie case showing that the evidence supports findings consistent with W.S.7-12-303(c) and the evidence would establish actual innocence, the court mayorder testing, subject to W.S. 7-12-306.

 

7-12-306. Designation of testing laboratory.

 

(a) If the court orders DNA testing pursuant to W.S.7-12-305(e), the DNA test shall be performed by the Wyoming state crimelaboratory unless the movant establishes that the state crime laboratory has aconflict of interest or does not have the capability to perform the necessarytesting.

 

(b) If the court orders that the DNA testing under W.S.7-12-305(e) shall be conducted by a laboratory other than the state crimelaboratory, the court shall require that the testing be performed:

 

(i) Under reasonable conditions designed to protect the state'sinterests in the integrity of the evidence;

 

(ii) By a laboratory that:

 

(A) Meets standards that at minimum comply with the standardsof the DNA advisory board established pursuant to 42 U.S.C. 14131; and

 

(B) Is accredited by the American society of crime laboratorydirectors accreditation board.

 

7-12-307. Discovery.

 

(a) If the DNA evidence being tested under this act has beenpreviously subjected to DNA analysis by either the state or defense prior tothe hearing conducted under W.S. 7-12-305, the court may order the state ordefense to provide each party and the court with access to the laboratoryreports prepared in connection with the DNA analysis, as well as the underlyingdata and laboratory notes. If DNA or other analysis was previously conductedby either the state or defense without the knowledge of the other party, allinformation relating to the testing shall be disclosed by the motion filedunder W.S. 7-12-303(c) or any response thereto.

 

(b) The results of any DNA testing ordered under W.S.7-12-305(e) shall be fully disclosed to the movant, the district attorney, theattorney general and the court. If requested by any party, the court shallorder production of the underlying laboratory data and notes or chain ofcustody documents.

 

7-12-308. Right to counsel.

 

A convicted person is entitled to counsel during aproceeding under this act. Upon request of the person, the court shall appointcounsel for the convicted person if the court determines that the person isneedy and the person wishes to submit a motion under W.S. 7-12-303(c). Counselshall be appointed as provided in W.S. 7-6-104(c)(viii).

 

7-12-309. Costs of testing.

 

(a) The person filing a motion under W.S. 7-12-303(c) shallbear the cost of the DNA testing unless:

 

(i) The person is serving a sentence of imprisonment;

 

(ii) The person is needy; and

 

(iii) The DNA test supports the person's motion.

 

(b) In the case of a person meeting the criteria specified inparagraphs (a)(i) through (iii) of this section, the costs of testing shall bepaid by the state.

 

7-12-310. Order following testing.

 

(a) If the results of the DNA analysis are inconclusive or showthat the movant is the source of the evidence, the court shall deny any motionfor a new trial based upon the DNA evidence and shall provide the results tothe board of parole.

 

(b) If the results of the DNA analysis are consistent withassertions contained in the movant's motion, the court shall set the matter forhearing on the motion for a new trial.

 

(c) Upon the stipulation of both parties or a motion fordismissal of the original charges against the movant by the state in lieu of aretrial, the court shall:

 

(i) Vacate the movant's conviction consistent with the evidencedemonstrating the movant's actual innocence;

 

(ii) Issue an order of actual innocence and exoneration; and

 

(iii) Issue an order of expungement.

 

(d) In the event a retrial is pursued and conducted and themovant is acquitted at the retrial, the court shall:

 

(i) Issue an order of actual innocence and exoneration; and

 

(ii) Issue an order of expungement.

 

7-12-311. Victim notification.

 

Following any motion filed under this act, the districtattorney shall provide notice to the victim that the motion has been filed, thetime and place for any hearing that may be held as a result of the motion, andthe disposition of the motion. For purposes of this section,"victim" means as defined in W.S. 1-40-202(a)(ii).

 

7-12-312. Rights not waived; refiling of uncharged offenses.

 

(a) Notwithstanding any other provision of law, the right tofile a motion under W.S. 7-12-303(c) shall not be waived. The prohibitionagainst waiver of the right provided under this section applies to, but is notlimited to, a waiver that is given as part of an agreement resulting in a pleaof guilty or nolo contendere.

 

(b) If a movant is granted a new trial under this act, anyoffense that was dismissed or not charged pursuant to a plea agreement thatresulted in the conviction that has been set aside as a result of this act maybe refiled by the state.

 

7-12-313. Appeal.

 

(a) An order granting or denying a motion for DNA testing filedunder W.S. 7-12-303(c) shall not be appealable, but may be subject to reviewonly under a writ of review filed by the movant, the district attorney or theattorney general. The petition for a writ of review may be filed no later thantwenty (20) days after the court's order granting or denying the motion for DNAtesting.

 

(b) Any party to the action may appeal to the Wyoming supremecourt any order granting or denying a motion for a new trial under W.S.7-12-310(b).

 

7-12-314. Subsequent motions.

 

The court shall not be required to entertain a second orsubsequent motion under W.S. 7-12-303(c) on behalf of the same movant, exceptwhere there is clear and compelling evidence that the evidence sought to betested was wrongfully withheld from the movant by the state or its agents.

 

7-12-315. Consensual testing.

 

Nothing in this act shall be interpreted to prohibit aconvicted person and the state from consenting to and conducting post-convictionDNA testing without filing a motion under W.S. 7-12-303(c). Notwithstandingany other provision of law governing post-conviction relief, if DNA testresults are obtained under testing conducted upon consent of the parties andthe results are favorable to the convicted person, the convicted person mayfile, and the court shall adjudicate, a motion for a new trial based on the DNAtest results.

 

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