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Rule 183
Post-Trial Matters

Procedure Under K.S.A. 60-1507

(a) NATURE OF REMEDY. K.S.A. 60-1507 is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in district courts in whose jurisdiction the prisoner was confined. A motion challenging the validity of a sentence is an independent civil action which should be separately docketed, and the procedure before the trial court and on appeal to the Court of Appeals is governed by the Rules of Civil Procedure insofar as applicable. No docket fee shall be required, as long as the movant complies with the provisions of subsection (b) of K.S.A. 60-2001 and amendments thereto. When the motion is received and filed by the clerk, the clerk shall forthwith deliver a copy thereof to the county attorney and make an entry of such fact in the appearance docket.

(b) EXCLUSIVENESS OF REMEDY. The remedy afforded by K.S.A. 60-1507 dealing with motions to vacate, set aside or correct sentences is exclusive, if adequate and effective, and a prisoner cannot maintain habeas corpus proceedings before or after a motion for relief under the section.

(c) WHEN REMEDY MAY BE INVOKED. (1) The provisions of K.S.A. 60-1507 may be invoked only by one in custody claiming the right to be released, (2) a motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected, (3) a proceeding under K.S.A. 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.

(d) SUCCESSIVE MOTIONS. The sentencing court shall not entertain a second or successive motion for relief on behalf of the same prisoner, where (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

(e) SUFFICIENCY OF MOTION. A motion to vacate a sentence shall be deemed sufficient if in substantial compliance with the form set forth by the judicial council. The form shall be furnished by the clerk upon request.

(f) HEARING. Unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief, the court shall notify the county attorney and grant a prompt hearing. "Prompt" means as soon as reasonably possible considering other urgent business of the court. All proceedings on the motion shall be recorded in a manner approved by the court.

(g) BURDEN OF PROOF. The movant has the burden of establishing the grounds for relief by a preponderance of the evidence.

(h) PRESENCE OF PRISONER. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which the prisoner participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.

(i) RIGHT TO COUNSEL. If a motion presents substantial questions of law or triable issues of fact the court shall appoint counsel to assist the movant if the movant is an indigent person.

(j) JUDGMENT. The court shall make findings of fact and conclusions of law on all issues presented.

(k) APPEAL. An appeal may be taken to the Court of Appeals from the order entered on the motion as in a civil case.

(l) COSTS. If the court finds that a movant desiring to appeal is an indigent person it shall authorize an appeal in forma pauperis and furnish the movant without cost such portions of the transcript of such proceeding as are necessary for appellate review.

(m) ATTORNEY. If a movant desires to appeal and contends he or she is without means to employ counsel to perfect the appeal, the district court shall, if satisfied that the movant is an indigent person, appoint competent counsel to conduct such appeal. If for good cause shown appointed counsel is permitted to withdraw while the case is pending in either the district court or the supreme court, the district court shall appoint new counsel in his or her stead.

[History: Am. effective September 8, 2006.]