NCJ Number
42568
Date Published
Unknown
Length
250 pages
Annotation
THIS STUDY EXAMINES STATE PROCEEDINGS IN COLLATERAL ATTACK OF CONVICTIONS IN ORDER TO PERMIT MORE INFORMED JUDGMENTS ABOUT THE NEED, NATURE, AND EFFECT OF POSSIBLE CHANGE IN THE EXISTING SYSTEM.
Abstract
FOR THE PURPOSES OF THE STUDY, A COLLATERAL ATTACK IS DEFINED AS A JUDICIAL PROCEDURE INSTITUTED OUTSIDE THE NORMAL TRIAL AND DIRECT APPEAL PROCESS, SUBSEQUENT TO CONVICTION, AND WHICH SEEKS TO MODIFY OR VACATE THE CONVICTION AND/OR SENTENCE. FOUR STATES, REPRESENTING A BROAD SPECTRUM OF COLLATERAL ATTACK PROCEDURES, WERE STUDIED: ILLINOIS, CALIFORNIA, COLORADO, AND TEXAS. ILLINOIS, ONE OF THE FIRST STATES TO PROVIDE A SPECIAL PROCEDURE INDEPENDENT OF HABEAS CORPUS AND OTHER POST CONVICTION REMEDIES TO COLLATERALLY TEST CONVICTIONS, WAS FOUND TO LIMIT AVAILABILITY TO CONSTITUTIONAL ISSUES, BUT MANDATES THE ASSISTANCE OF COUNSEL, AS WELL AS ALLOWING FOR APPEAL AS A MATTER OF RIGHT. CALIFORNIA AND TEXAS PROCEDURES WERE DISCOVERED TO BE FIRMLY ROOTED IN HABEAS CORPUS, BUT EACH HAS EVOLVED A DISTINCTIVE PROCEDURAL APPROACH. IN TEXAS THE PETITION MUST BE FILED IN THE TRIAL COURT AND ONLY THE CRIMINAL COURT OF APPEALS MAY GRANT RELIEF. IN CALIFORNIA, ON THE OTHER HAND, THE PRACTICE AT THE TIME OF THE STUDY WAS TO PERMIT FILINGS AT THE TRIAL AND/OR APPELLATE LEVELS HAVING JURISDICTION OVER THE PLACE THE PETITIONER WAS RESTRAINED. COLORADO WAS FOUND TO HAVE PROCEDURES BROADEST OF ALL IN SCOPE, TESTING BOTH CONSTITUTIONAL AND NON-CONSTITUTIONAL CLAIMS AT THE TRIAL COURT LEVEL, WITH APPEAL TO THE SUPREME COURT....RCB