78B-9-106 - Preclusion of relief -- Exception.
78B-9-106. Preclusion of relief -- Exception.
(1) A person is not eligible for relief under this chapter upon any ground that:
(a) may still be raised on direct appeal or by a post-trial motion;
(b) was raised or addressed at trial or on appeal;
(c) could have been but was not raised at trial or on appeal;
(d) was raised or addressed in any previous request for post-conviction relief or couldhave been, but was not, raised in a previous request for post-conviction relief; or
(e) is barred by the limitation period established in Section 78B-9-107.
(2) (a) The state may raise any of the procedural bars or time bar at any time, includingduring the state's appeal from an order granting post-conviction relief, unless the courtdetermines that the state should have raised the time bar or procedural bar at an earlier time.
(b) Any court may raise a procedural bar or time bar on its own motion, provided that itgives the parties notice and an opportunity to be heard.
(3) Notwithstanding Subsection (1)(c), a person may be eligible for relief on a basis thatthe ground could have been but was not raised at trial or on appeal, if the failure to raise thatground was due to ineffective assistance of counsel.
(4) This section authorizes a merits review only to the extent required to address theexception set forth in Subsection (3).
Amended by Chapter 48, 2010 General Session