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Federal Rules of Criminal Procedure


If a defendant has entered into a guilty plea, he/she is not permitted to file a direct appeal to the Arizona Court of Appeals. Instead, he/she must file a Notice of Post-Conviction Relief under Rule 32. That notice is sent to the trial judge who sentenced the defendant. Transcripts of the change of plea and sentencing proceedings are prepared, together with any other transcripts of earlier proceedings that might be important to the case. The defense attorney then prepares a Petition for Post-Conviction Relief, stating all grounds for relief which are known to the defendant and the attorney. The prosecutor then has an opportunity to respond, and the defendant, through counsel, has the option of filing a reply to the state’s response. The court then decides whether to issue a ruling based upon the pleadings, or the court may grant an evidentiary hearing.

If the court grants an evidentiary hearing, then the defendant and his attorney appear in court, together with the prosecutor. It is the defendant’s burden to present witnesses to support the claims that are contained in the Petition. Unlike a trial, however, the defendant may be called as a witness whether or not he wishes to testify. If a defendant has raised a claim of ineffective assistance of counsel, the attorney who represented the defendant previously may be called to testify and explain his or her actions or decisions. After the evidentiary hearing, the court issues a ruling that will either deny relief or grant the defendant the relief requested. The defendant could get a new trial, the defendant could be allowed to withdraw from his/her plea agreement, or the defendant could get a new sentencing hearing.

If the trial court denies the petition, the defendant has the right to file a Petition for Review with the Arizona Court of Appeals. The Court of Appeals is not required to review this type of case. The decision whether to review or not review the denial of a Petition for Post-Conviction Relief is called “discretionary.” If the case is reviewed by the Court of Appeals, then the Court of Appeals issues a written decision, either granting or denying relief.

Petition for Post-Conviction Relief/Rule 32

Rule 32, Arizona Rules of Criminal Procedure, permits defendants who have been convicted and sentenced to file petitions in the court in which they were convicted, in order to request either a new trial or a re-sentencing, outside the direct appeal process.

Grounds for relief are limited under this rule to the following:

  1. The conviction or sentence was in violation of the Constitution of the United States or of the State of Arizona;

  2. The court was without jurisdiction to render judgment or to impose sentence;

  3. The sentence imposed exceeded the maximum authorized by law or is otherwise not in accordance with the sentence authorized by law;

  4. The person is being held in custody after the sentence imposed has expired.

  5. Newly material facts probably exist, and such facts probably would have changed the verdict or sentence;

  6. The defendant’s failure to file a Notice of Post-Conviction Relief of Right or Notice of Appeal within the prescribed time was without fault on the defendant’s part;

  7. There has been a significant change in the law that, if determined to apply to defendant’s case, will probably overturn the defendant’s conviction or sentence, or 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 have found defendant guilty of the underlying offense beyond a reasonable doubt.

The most common reason for filing Rule 32 petitions pertains to ineffective assistance of counsel. The test for ineffective assistance of counsel is a two-part test. You must show that counsel’s performance fell below the minimum standards set forth by the Arizona courts and that, but for counsel’s errors or omissions, the outcome or verdict would have been different.

Petitions for post-conviction relief under Rule 32 must be filed within certain time limits, and a defendant is allowed only one petition for post-conviction relief, except under extraordinary circumstances. Therefore, it is important that you consult with an attorney who is experienced in filing Rule 32 petitions in a timely manner, and that you discuss your case fully with that attorney. In my 35 plus years of experience practicing law, I have filed in excess of 1,000 Rule 32 petitions.