§ 7-12-404 — Service of process; response by state; review by the court

Wyoming § 7-12-404

• Jurisdiction: Wyoming
• Title 07: Criminal Procedure
• Ch. 12: APPEAL, EXCEPTIONS AND NEW TRIAL
• Art. 4: POSTCONVICTION DETERMINATION OF FACTUAL INNOCENCE

Text

(a) A person filing a petition under this act shall serve
notice and a copy of the petition upon the office of the
district attorney where the conviction was obtained and upon the
Wyoming attorney general.
(b) The assigned district judge shall conduct an initial
review of the petition. If it is apparent to the court that the
petitioner is merely relitigating facts, issues or evidence
presented in previous proceedings or presenting issues that
appear frivolous or speculative on their face, the court shall
dismiss the petition, state the basis for the dismissal and
serve notice of dismissal upon the petitioner, the district
attorney and the attorney general. If, upon completion of the
initial review, the court does not dismiss the petition, it
shall order the district attorney to file a response to the
petition.
(c) The district attorney shall, within one hundred twenty
(120) days after receipt of the court's order requiring a
response, or within any additional period of time the court
allows, answer or otherwise respond to the petition and serve
the same upon the petitioner and the attorney general.
(d) After the time for response by the district attorney
has passed, the court shall order a hearing if it finds the
petition meets the requirements of W.S. 7-12-403 and finds there
is a bona fide and compelling issue of factual innocence
regarding the charges of which the petitioner was convicted. No
bona fide and compelling issue of factual innocence exists if
the petitioner is merely relitigating facts, issues or evidence
presented in a previous proceeding or if the petitioner is
unable to identify with sufficient specificity the nature and
reliability of the newly discovered evidence that establishes
the petitioner's factual innocence.
(e) Within thirty (30) days after the date the district
attorney responds to the petition, the petitioner may reply.
Within thirty (30) days after the time for petitioner to reply
has passed, the court shall consider the petition and any
response and enter an order either denying the petition or
granting a hearing on the petition. The court may not grant a
hearing during the period in which criminal proceedings in the
matter are pending before any trial or appellate court, unless
stipulated to by the parties.
(f) If the court grants a hearing, both the hearing and
the final order following the hearing shall occur and be entered
within one hundred fifty (150) days after the last day for the
petitioner to reply to the district attorney's response to the
petition, unless for good cause the court determines additional
time is required.
(g) If the court sets a hearing on the petition and
evidence is in the custody of the state or its agents, upon
request of the petitioner, the court shall order the state to
preserve all material and relevant evidence in the state's
possession or control during the pendency of the proceeding.
(h) Upon motion, the court may order forensic testing of
any available evidence.
(j) If the court orders forensic testing under subsection
(h) of this section, the testing shall be performed by the
Wyoming state crime laboratory unless the movant establishes
that the state crime laboratory has a conflict of interest or
does not have the capability to perform the necessary testing.
(k) If the court orders that forensic testing under
subsection (h) of this section shall be conducted by a
laboratory other than the Wyoming state crime laboratory, the
court shall require that the testing be performed by a
laboratory that is accredited by the American society of crime
laboratory directors accreditation board, ANSI-ASQ national
accreditation board or a successor accrediting body.
(m) The movant shall bear the cost of forensic testing
ordered under subsection (h) of this section unless the court
determines the movant is needy and the forensic testing supports
the movant's petition for exoneration, in which case the court
shall order the state to bear the cost of the forensic testing.
(n) If the parties stipulate the evidence establishes the
petitioner is factually innocent, the court may find the
petitioner is factually innocent without holding a hearing. If
the state will not stipulate the evidence establishes the
petitioner is factually innocent, no determination of factual
innocence may be made by the court without first holding a
hearing.
(o) Upon stipulation of the parties or the state's motion
for dismissal of the original charges against the petitioner,
the court shall vacate the petitioner's conviction, issue an
order of factual innocence and exoneration and order expungement
of the records of the original conviction.
(p) If, after a hearing, the court determines that the
petitioner has proven his factual innocence by clear and
convincing evidence, the court shall issue an order of factual
innocence and exoneration and shall order expungement of the
records of the original conviction.