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Rule RCr 11.42 – Motion to vacate, set aside or correct sentence

May 13, 2021 | Criminal Procedure, Kentucky

(1) A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it.
(2) The motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion.
(3) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.
(4) The clerk of the court shall notify the attorney general and the Commonwealth’s attorney in writing that such motion (whether it be styled a motion, petition or otherwise) has been filed, and the Commonwealth’s attorney shall have 20 days after the date of mailing of notice by the clerk to the Commonwealth’s attorney in which to serve an answer on the movant.
(5) Affirmative allegations contained in the answer shall be treated as controverted or avoided of record. If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal.
(6) At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02.
(7) Either the movant or the Commonwealth may appeal from the final order or judgment of the trial court on a motion brought under this rule. If the trial court finds the movant received ineffective assistance of appellate counsel and the Commonwealth fails to pursue a timely appeal, the movant may appeal the trial court’s order by filing a notice of appeal within sixty (60) days after the date of notation of service of the judgment or order under Criminal Rule 12.06(2). If neither party has filed a notice of appeal within this sixty (60) day period, the trial court shall issue to the movant an order to show cause within ten (10) days why the judgment vacated on his behalf should not be reinstated. If the movant fails to respond within ten (10) days or fails to show cause, the trial court shall reinstate the vacated judgment. If upon the movant’s showing the trial court is satisfied that the movant’s failure to appeal should not be deemed a waiver of his right to do so, it shall grant the movant an additional thirty (30) days in which to file notice of his appeal.
(8) The final order of the trial court on the motion shall not be effective until expiration of time for notice of appeal under RCr 12.04 and shall remain suspended until final disposition of an appeal duly taken and perfected.
(9) Original applications for relief of the nature described in this Rule 11.42 that are addressed directly to a court other than the one in which the sentence was imposed shall be transmitted to the court in which the sentence was imposed for further disposition in the manner above set forth.
(10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:

(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

If the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth’s opportunity to present relevant evidence to contradict or impeach the movant’s evidence.

Ky. R. Crim. P. RCr 11.42

Amended by Order 2012-09, eff. 9-12-12; prior amendments eff. 3-1-99 (Order 98-3), 10-1-94 (Order 94-1), 1-1-86, 1-1-85, 9-1-81 (Order 81-5), 11-1-78, 1-1-78, 7-1-76, 9-1-70, 1-1-70, 1-1-65; adopted eff. 1-1-63 .