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Rule 4-706 – Answer; Motion to Transfer

May 13, 2021 | Criminal Prodcedure, Maryland

(a) Duty to File. The State’s Attorney shall file an answer to the petition or a motion to transfer based on improper venue.
(b) Motion to Transfer.

(1)Time for Filing. A motion to transfer shall be filed no later than 30 days after the State’s Attorney receives notice of the petition.
(2)Content. A statement of facts establishing proper venue, including the case number of the case in which the judgment of conviction was entered, shall be attached to the motion to transfer.
(3)Determination; Transfer. The court promptly shall grant or deny the motion to transfer. If the court grants the motion, the court shall transfer the action to the circuit court of the county where the petition should have been filed.
(4)Notice of Transfer. If an action is transferred pursuant to subsection (b)(3) of this Rule, the clerk of the receiving court promptly shall comply with the notice requirements of Rule 4-705.
(c) Answer.

(1)Time for Filing. The answer shall be filed no later than the later of 60 days after the State’s Attorney receives notice of the filing or transfer of the petition or 60 days after the court denies a motion to transfer. If an answer is not filed within the time required by this Rule or an extended time allowed by the court, the court shall take such action as it deems appropriate.

Cross reference: For extension of time requirements, see Rule 1-204.

(2)Content. The answer shall state or contain:

(A) whether the specific scientific identification evidence that the petitioner desires to have tested exists and, if so, the location of the evidence, the name and business address of the custodian of the evidence, whether the evidence is appropriate for DNA testing, and if not, the reasons why it is not appropriate for DNA testing;
(B) if the State asserts that it has been unable to locate the evidence, an affidavit containing a detailed description of all steps it took to locate the evidence, including (i) a description of all law enforcement records, databases, and logs that were searched, (ii) a description and documentation of when and how the searches were conducted, and (iii) the names and business addresses of the persons who conducted them;
(C) if the State asserts that the evidence has been destroyed, an affidavit (i) containing a description and documentation of all relevant protocols and legal requirements pertaining to the destruction of the evidence, and (ii) stating whether the evidence was destroyed in conformance with those protocols and legal requirements and, (a) if so, providing documentation of that fact, and, (b) if not, stating the reasons for non-compliance with the protocols or legal requirements; and
(D) a response to each allegation in the petition.
(d) Service. The State’s Attorney shall serve a copy of the answer or motion to transfer on the petitioner and, if the petitioner alleges an inability to pay the costs of testing or to employ counsel, on the Collateral Review Division of the Office of the Public Defender.

Md. Crim. Causes. 4-706

This Rule is new.

Adopted Sept. 10, 2009, eff. Oct. 1, 2009. Amended June 7, 2011, eff. July 1, 2011.

HISTORICAL NOTES

2011 Orders

The June 7, 2011, order replaced “Public Defender’s Inmate Services Division” with “Office of the Public Defender” in the last sentence of section (d).

The Sept. 8, 2011, order, in section (d), inserted “Collateral Review Division of the”.