§ 16-5-402 — Limitation for collateral attack upon trial judgment - definitions

(1) Except as otherwise provided in subsection (2) of this section, no person who has
been convicted as an adult or who has been adjudicated as a juvenile under a
criminal statute of this or any other state of the United States shall collaterally
attack the validity of that conviction or adjudication unless such attack is
commenced within the applicable time period, as provided in this subsection (1),
following the date of said conviction, or for purposes of juvenile adjudication the
applicable time period will begin at the time of the juvenile's eighteenth birthday:

All class 1 felonies: No limit

All other felonies: Three years

Misdemeanors: Eighteen months

Petty offenses: Six months

(1.5) If an appellate court can determine on the face of the motion, files, and
record in a case that a collateral attack is outside the time limits specified in
subsection (1) of this section, the appellate court may deny relief on that basis,
regardless of whether the issue of timeliness was raised in the trial court.

(2) In recognition of the difficulties attending the litigation of stale claims
and the potential for frustrating various statutory provisions directed at repeat
offenders, former offenders, and habitual offenders, the only exceptions to the time
limitations specified in subsection (1) of this section are:

(a) A case in which the court entering judgment of conviction or entering
adjudication did not have jurisdiction over the subject matter of the alleged offense;

(b) A case in which the court entering judgment of conviction or entering
adjudication did not have jurisdiction over the person of the defendant or juvenile;

(c) Where the court hearing the collateral attack finds by a preponderance of
the evidence that the failure to seek relief within the applicable time period was
caused by an adjudication of incompetence or by commitment of the defendant or
juvenile to an institution for treatment as a person with a mental health disorder; or

(d) Where the court hearing the collateral attack finds that the failure to
seek relief within the applicable time period was the result of circumstances
amounting to justifiable excuse or excusable neglect.

(3) Repealed.

(4) For purposes of this section:

(a) Adjudication, except as used in subsection (2)(c) of this section,
includes adjudicated and has the same meaning as defined in section 19-2.5-102.

(b) Juvenile has the same meaning as set forth in section 19-1-103.

Legislative History

Source: L. 81: Entire section added, p. 926, � 3, effective July 1. L. 84: (2)(b) and (2)(c) amended and (2)(d) added, p. 486, � 1, effective February 6. L. 98: (1.5) added, p. 948, � 10, effective May 27. L. 2001: Entire section amended, p. 734, � 4, effective July 1. L. 2002: (4)(b) amended, p. 1016, � 17, effective June 1; (3) repealed, p. 761, � 11, effective July 1. L. 2006: (2)(c) amended, p. 1397, � 41, effective August 7. L. 2018: IP(2) and (2)(c) amended, (SB 18-091), ch. 35, p. 384, � 14, effective August 8. L. 2021: (4) amended, (SB 21-059), ch. 136, p. 713, � 23, effective October 1.