Arizona

Criminal Procedure

Criminal Procedure

Rule 33.1 – Scope of Remedy

Generally. A defendant may file a notice requesting post-conviction relief under this rule if the defendant pled guilty or no contest to a criminal offense, admitted a probation violation, or had an automatic probation violation based on a plea of guilty or no contest.

To challenge the effectiveness of counsel in the first post-conviction proceeding, a defendant may file a second notice requesting post-conviction relief under this rule.

No Filing Fee. There is no fee for filing a notice of post-conviction relief.

Grounds for Relief. Grounds for relief are:

(a) the defendant’s plea or admission to a probation violation was obtained, or the sentence was imposed, in violation of the United States or Arizona constitutions;
(b) the court did not have subject matter jurisdiction to render a judgment or to impose a sentence on the defendant;
(c) the sentence as imposed is not authorized by law or by the plea agreement;
(d) the defendant continues to be or will continue to be in custody after his or her sentence expired;
(e) newly discovered material facts probably exist, and those facts probably would have changed the judgment or sentence. Newly discovered material facts exist if:

(1) the facts were discovered after sentencing;
(2) the defendant exercised due diligence in discovering these facts; and
(3) the newly discovered facts are material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of such critical significance that the impeachment evidence probably would have changed the judgment or sentence.
(f) the failure to timely file a notice of post-conviction relief was not the defendant’s fault;
(g) there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence; or
(h) the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt.

Ariz. R. Crim. P. 33.1

Added by August 31, 2017, effective January 1, 2018; amended August 29, 2019, effective January 1, 2020.

COMMENT Rule 33. 1(a). This provision encompasses most traditional post-conviction claims, such as the denial of counsel, incompetent or ineffective counsel, or violations of other rights based on the United States or Arizona constitutions.

Rule 33.1(d). This provision is intended to include claims such as miscalculation of sentence or computation of sentence credits that result in the defendant remaining in custody when he or she should be free. It is not intended to include challenges to the conditions of imprisonment or correctional practices.

Rule 33.1(h). This claim is independent of a claim under Rule 33.1(e) concerning newly discovered evidence. A defendant who establishes a claim of newly discovered evidence need not comply with the requirements of Rule 33.1(h).