547.035. Postconviction DNA testing for persons in the custody of the department--motion, contents--procedure. - Missouri Statutes

Postconviction DNA testing for persons in the custody of thedepartment--motion, contents--procedure.

547.035. 1. A person in the custody of the department of correctionsclaiming that forensic DNA testing will demonstrate the person's innocenceof the crime for which the person is in custody may file a postconvictionmotion in the sentencing court seeking such testing. The procedure to befollowed for such motions is governed by the rules of civil procedureinsofar as applicable.

2. The motion must allege facts under oath demonstrating that:

(1) There is evidence upon which DNA testing can be conducted; and

(2) The evidence was secured in relation to the crime; and

(3) The evidence was not previously tested by the movant because:

(a) The technology for the testing was not reasonably available tothe movant at the time of the trial;

(b) Neither the movant nor his or her trial counsel was aware of theexistence of the evidence at the time of trial; or

(c) The evidence was otherwise unavailable to both the movant andmovant's trial counsel at the time of trial; and

(4) Identity was an issue in the trial; and

(5) A reasonable probability exists that the movant would not havebeen convicted if exculpatory results had been obtained through therequested DNA testing.

3. Movant shall file the motion and two copies thereof with the clerkof the sentencing court. The clerk shall file the motion in the originalcriminal case and shall immediately deliver a copy of the motion to theprosecutor.

4. The court shall issue to the prosecutor an order to show cause whythe motion should not be granted unless:

(1) It appears from the motion that the movant is not entitled torelief; or

(2) The court finds that the files and records of the caseconclusively show that the movant is not entitled to relief.

5. Upon the issuance of the order to show cause, the clerk shallnotify the court reporter to prepare and file the transcript of the trialor the movant's guilty plea and sentencing hearing if the transcript hasnot been prepared or filed.

6. If the court finds that the motion and the files and records ofthe case conclusively show that the movant is not entitled to relief, ahearing shall not be held. If a hearing is ordered, counsel shall beappointed to represent the movant if the movant is indigent. The hearingshall be on the record. Movant need not be present at the hearing. Thecourt may order that testimony of the movant shall be received bydeposition. The movant shall have the burden of proving the allegations ofthe motion by a preponderance of the evidence.

7. The court shall order appropriate testing if the court finds:

(1) A reasonable probability exists that the movant would not havebeen convicted if exculpatory results had been obtained through therequested DNA testing; and

(2) That movant is entitled to relief.

Such testing shall be conducted by a facility mutually agreed upon by themovant and by the state and approved by the court. If the parties areunable to agree, the court shall designate the testing facility. The courtshall impose reasonable conditions on the testing to protect the state'sinterests in the integrity of the evidence and the testing process.

8. The court shall issue findings of fact and conclusions of lawwhether or not a hearing is held.

(L. 2001 S.B. 267)