40-30-120 - Stays of execution when petitioner is under sentence of death. - Tennessee Statutes

40-30-120. Stays of execution when petitioner is under sentence of death.

(a)  When affirming a conviction and sentence of death on direct appeal, the Tennessee supreme court shall contemporaneously set a date for an execution. The date shall be no less than four (4) months from the date of the judgment of the Tennessee supreme court. Upon the filing of a petition for post-conviction relief, the court in which the conviction occurred shall issue a stay of the execution date that shall continue in effect for the duration of any appeals or until the post-conviction action is otherwise final. The execution date shall not be stayed prior to the filing of a petition for post-conviction relief except upon a showing by the petitioner of the petitioner's inability to file a petition prior to the execution date and that the inability is justified by extraordinary circumstances beyond the petitioner's control.

(b)  Where the petitioner is under a sentence of death and the petition is not the first petition under this part attacking that judgment, or a motion to reopen has been filed, no court may stay the execution unless a court of competent jurisdiction first finds that a motion to reopen that meets the requirements set out in § 40-30-117 has been granted.

(c)  The mere satisfaction of the requirements of subsection (b) shall not automatically result in a stay. In order to obtain a stay, an applicant must show that upon the court's consideration of the petition there is a significant possibility that the death sentence will be invalidated and that there is a significant possibility that the death sentence will be carried out before consideration of the petition is concluded.

(d)  Any motion for stay pending consideration of the post-conviction petition must be presented first to the court where the petition is filed. The decision of the court shall be reviewable by the court of criminal appeals upon the filing of a motion for review. Either party may seek review. The lower court's determination shall not be set aside unless the movant demonstrates an abuse of discretion. The action of the court of criminal appeals shall likewise be reviewable upon the filing of a motion for review in the Tennessee supreme court. Either party may seek review. The determination of the court of criminal appeals shall not be set aside unless the movant demonstrates an abuse of discretion.

(e)  Each motion for stay, or motion for review, shall be filed in writing with the clerk of the court to whom the motion is directed. The clerk shall immediately refer the matter to the court. Each motion shall be served upon opposing counsel in the most expeditious manner practicable. The motion shall recite that opposing counsel has been served and in what manner. Oral requests directed to a judge are prohibited unless, owing to emergency circumstances, the filing of a written motion is impractical. In that event, counsel initiating the contact shall orally notify opposing counsel prior to the contact.

(f)  Motions for review may be acted upon by a single judge of the appellate court. The judge may, in lieu thereof, refer the motion to the court. In the court of criminal appeals, the reference will be to a three (3) judge panel of the court in the grand division where the motion is filed. Review shall be made promptly within five (5) days or within a shorter period as necessary to preclude the issue from becoming moot, whether by a single judge or by the court. Oral argument shall not be permitted unless the court otherwise directs. Opposing counsel shall have a right to file a written response to the motion within three (3) days of the service of the motion. If time does not permit the filing of a written response, the court shall ascertain the position of opposing counsel by other means which may include a telephone conference. The court may consider the last-minute nature of an application to stay execution by resolving against the petitioner any doubts and uncertainties as to the sufficiency of the petitioner's submission.

[Acts 1995, ch. 207, § 1; T.C.A. § 40-30-220.]