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Rule 32.1. Scope of Remedy

Arizona Revised Statutes AnnotatedRules of Criminal Procedure

Arizona Revised Statutes Annotated

Rules of Criminal Procedure (Refs & Annos)

IV. Pretrial Procedures

Rule 32. Post-Conviction Relief (Refs & Annos)

16A A.R.S. Rules Crim.Proc., Rule 32.1

Rule 32.1. Scope of Remedy

Currentness

Petition for Relief. Subject to Rules 32.2 and 32.4(a)(2), a defendant convicted of, or sentenced for, a criminal offense may file a notice of post-conviction relief, without paying any fee, to request appropriate relief under this rule.

Of-Right Petition. A defendant who pled guilty or no contest, or who admitted a probation violation, or who had an automatic probation violation based on a plea of guilty or no contest, may file an of-right notice of post-conviction relief. After the court's final order or mandate in a Rule 32 of-right proceeding, the defendant also may file an of-right notice challenging the effectiveness of Rule 32 counsel in the first of-right proceeding.

Grounds for Relief. Grounds for relief are:

(a) the defendant's conviction was obtained or the sentence was imposed in violation of the United States or Arizona constitutions;

(b) the court did not have jurisdiction to render a judgment or to impose a sentence on the defendant;

(c) the sentence imposed exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;

(d) the defendant continues to be in custody after his or her sentence expired;

(e) newly discovered material facts probably exist and those facts probably would have changed the verdict or sentence.

Newly discovered material facts exist if:

(1) the facts were discovered after the trial or sentencing;

(2) the defendant exercised due diligence in discovering these facts; and

(3) the newly discovered facts are material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of critical significance such that the evidence probably would have changed the verdict or sentence.

(f) the failure to file a notice of post-conviction relief of-right or a notice of appeal within the required time was not the defendant's fault;

(g) there has been a significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence; or

(h) the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt, or that the death penalty would not have been imposed.

Credits

Added by Aug. 31, 2017, effective Jan. 1, 2018.

Editors' Notes

COMMENT

Rule 32.1(a). Most traditional collateral attacks are encompassed within this provision. Claims of denial of counsel, of incompetency of counsel, and of violation of other rights based on the federal or Arizona constitutions are included.

Rule 32.1(b). This provision retains the basic attack on jurisdiction universally recognized as a ground for collateral attack.

Rule 32.1(c). This provision is intended to allow an attack on a sentence even though the petitioner does not contest the validity of the underlying conviction.

Rule 32.1(d). This provision is not intended to include attacks on the conditions of imprisonment or on correctional practices or prison rules. It is intended to include claims of more traditional types--e.g., miscalculation of sentence, questions of computation of good time--which result in the defendant remaining in custody when he should be free. Appeals from the conviction and imposition of probation must be filed no later than 20 days of the entry of judgment and sentence. See Rules 26.1, 26.16(a), and 31.2.

Rule 32.1(f). This provision includes the situation in which the defendant fails to appeal because the trial court, despite the requirements of Rule 26.11(a)(1), did not advise him of his appeal rights, and the situation in which the defendant intended to appeal and thought timely appeal had been filed by his attorney when in reality it had not.

Rule 32.1(h). This claim is independent of a claim under Rule 32.1(e). A defendant who establishes a claim of newly discovered evidence does not need to comply with the requirements of Rule 32.1(h).

HISTORICAL AND STATUTORY NOTES

Former Rule 32.1, relating to scope of remedy, was abrogated effective Jan. 1, 2018. See, now, this rule.

16A A. R. S. Rules Crim. Proc., Rule 32.1, AZ ST RCRP Rule 32.1

The Arizona Court Rules are current with amendments received through 8/1/18. The Code of Judicial Administration is current with amendments received through 4/15/18.

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