15 §2124. Jurisdictional prerequisite of restraint or impediment
Title 15: COURT PROCEDURE -- CRIMINAL
Part 4: JUDGMENT AND PROCEEDINGS
Chapter 305-A: POST-CONVICTION REVIEW
§2124. Jurisdictional prerequisite of restraint or impediment
An action for post-conviction review of a criminal judgment of this State or of a post-sentencing proceeding following the criminal judgment may be brought if the person seeking relief demonstrates that the challenged criminal judgment or post-sentencing proceeding is causing a present restraint or other specified impediment as described in subsections 1 to 3: [1997, c. 399, §2 (AMD).]
1. Present restraint by criminal judgment. Present restraint or impediment as a direct result of the challenged criminal judgment:
A. Incarceration pursuant to the sentence imposed as a result of the criminal judgment which is challenged; [1979, c. 701, §15 (NEW).]
B. Other restraint, including probation, parole, other conditional release or a juvenile disposition other than incarceration or probation, imposed as a result of the sentence for the criminal judgment which is challenged; [1983, c. 235, §5 (AMD).]
C. A sentence of unconditional discharge resulting from a criminal judgment, for a period of 2 years following the date of sentence; [1979, c. 701, §15 (NEW).]
D. Incarceration, other restraint or an impediment specified in paragraphs A, B and C which is to be served in the future, although the convicted or adjudicated person is not in execution of the sentence either because of release on bail pending appeal of the criminal judgment or because another sentence must be served first; or [1983, c. 235, §5 (AMD).]
E. A fine imposed by the challenged criminal judgment which has not been paid; [1979, c. 701, §15 (NEW).]
[ 1983, c. 235, §5 (AMD) .]
1-A. Present or future restraint by commitment to the Commissioner of Health and Human Services. Present restraint or impediment as a direct result of commitment to the custody of the Commissioner of Health and Human Services pursuant to section 103 imposed as a result of being found not criminally responsible by reason of mental disease or defect, that is challenged, or future restraint or impediment as a result of such an order of commitment that is challenged when a sentence involving imprisonment is or will be served first.
A claim for postconviction review is not allowed under this subsection relative to any court proceeding or administrative action that affects release or discharge pursuant to section 104-A;
[ RR 1995, c. 2, §32 (COR); 2001, c. 354, §3 (AMD); 2003, c. 689, Pt. B, §7 (REV) .]
2. Post-sentencing proceeding. Incarceration or increased incarceration imposed pursuant to a post-sentencing proceeding following a criminal judgment, although the criminal judgment itself is not challenged; or
[ 1979, c. 701, §15 (NEW) .]
3. Present indirect impediment. Present restraint or impediment resulting indirectly from the challenged criminal judgment of this State:
A. Incarceration imposed in this State, in another state or in a Federal Court pursuant to a sentence for a subsequent criminal judgment for a crime punishable by incarceration for a year or more, the length of the incarceration being greater than it would otherwise have been in the absence of the challenged criminal judgment of this State. The criminal judgment which is challenged must be for a crime punishable by incarceration for a year or more. This requirement is not satisfied by a showing only that the court imposing the present sentence was aware of the challenged criminal judgment or if it appears from the length or seriousness of the person's total criminal record that the challenged criminal judgment, taking into account its seriousness and date, could have little or no effect on the length of incarceration under the subsequent sentence; [1985, c. 209, §3 (AMD).]
B. A pending trial or incarceration pursuant to a sentence following a criminal judgment in this State, in another state or in a Federal Court for a crime, the degree of which or the potential penalty of which is increased as a result of the challenged criminal judgment of this State. This requirement is not satisfied unless:
(1) The subsequent crime, as enhanced, is, in the case of a crime in this State, punishable by incarceration of one year or more or, in the case of a crime in another jurisdiction, is a felony or an infamous crime; and
(2) If a sentence for the subsequent crime has been imposed, the length of that sentence actually exceeds the amount of incarceration which could have been imposed for the subsequent crime had its potential penalty not been enhanced by the challenged criminal judgment; or [1979, c. 701, §15 (NEW).]
C. A pending trial or any of the restraints or impediments specified in subsection 1 following a criminal judgment in this State, another state or in a Federal Court for a crime for which proof of the criminal judgment of this State that is challenged constitutes an element of the subsequent crime. [1979, c. 701, §15 (NEW).]
[ 1985, c. 209, §3 (AMD) .]
SECTION HISTORY
1979, c. 701, §15 (NEW). 1983, c. 235, §§4,5 (AMD). 1985, c. 209, §3 (AMD). RR 1995, c. 2, §32 (COR). 1995, c. 286, §3 (AMD). 1997, c. 399, §2 (AMD). 2001, c. 354, §3 (AMD). 2003, c. 689, §B7 (REV).