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Jan 20, 2018

440.3 Motion to vacate judgment and to set aside sentence; procedure

Penal code 440.3 sets out the procedure by which a defendant may file a motion to vacate judgment or set aside sentence. Under this code the motion must be made in writing, with reasonable notice to the people, containing:

1. A recitation of every ground upon which the motion is based.

2. Sworn statements supporting the factual allegations. Sworn allegations may come from the defendant or one or more other persons. Sworn allegations must be based upon:

  • Personal knowledge of the affiant; or
  • Information and belief of the affiant. The affiant must identify both the source of information and grounds for belief.

3. Any supporting information or documentation.

What happens after the motion is filed?

The People’s Response: The people may file a response to the motion with the court and serve the defendant or the defendant’s attorney with the same. In this response, the people admit or deny the defendant’s allegations. The people may also attach evidence supporting the response.

Determination Whether a Hearing is Required: The court will review both the motion and the response, as well as all supporting evidence provided. The court will then determine whether a hearing is necessary to resolve questions of fact.

Hearing the Motion:

If the court determines there is a question of fact the court will set a hearing. As it relates to the motion to vacate, the defendant may, initially or during consideration of the motion, request the production of property gathered during investigation or prosecution of the case for inspection. In some circumstances DNA testing may also be allowed.

The court will grant a defendant’s request and direct the people to produce the property if:

1. The defendant was convicted of a felony after a trial;
2. The defendant properly filed a motion to vacate the judgment and seeks the property to prove actual innocence;
3. The court ordered an evidentiary hearing concerning the motion;
4. The defendant raised credible allegations in requesting the property;
5. The court finds that the property is probative in determining the actual innocence of the defendant; and
6. The request for the property is reasonable.

The court shall impose a protective order governing property produced where it deems appropriate.

The court will deny or limit the request if the court finds that granting the request would:

1. Threaten the integrity or chain of custody of the property; or
2. Threaten the integrity of the process or laboratory conducting DNA tests; or
3. Subject a person to possible harm, intimidation, reprisal, embarrassment, or other substantially negative consequences; or
4. Undermine law enforcement functions, including informant confidentiality; or
5. Go against public safety, or is otherwise not in the interests of justice.

The court will also deny any request for production of property if:

1. The defendant could obtain the property through other reasonable means; or

2. The defendant made the motion to vacate after 5 years from the date of conviction. This statute of limitation is tolled 5 years if the defendant is in custody because of the conviction for which the motion is filed, and the defendant demonstrates that:

  • The defendant diligently pursued the motion but for some extraordinary circumstance that prevented its filing;
  • Defendant, nor defendant’s attorney, knew of the facts supporting the motion, nor could said facts have been discovered through due diligence, prior to the statute of limitations expiring; or
  • All things considered, hearing the motion is in the interests of justice.

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