A. The defendant is entitled to a hearing to determine issues of material fact, with the right to be present and to subpoena witnesses. If facilities are available, the court may, in its discretion, order the hearing to be held at the place of confinement, giving at least fifteen days' notice to the officer in charge of the confinement facility. A verbatim record of the hearing shall be made.
B. The rules of evidence applicable in criminal proceedings shall apply, except that the defendant may be called to testify at the hearing.
C. The defendant has the burden of proving the allegations of fact by a preponderance of the evidence. If a constitutional defect is proven, the state has the burden of proving that the defect was harmless beyond a reasonable doubt.
D. The court shall rule within ten days after the hearing ends. If the court finds in favor of the defendant, it shall enter an appropriate order with respect to the conviction, sentence or detention, any further proceedings, including a new trial and conditions of release, and other matters that may be necessary and proper. The court shall make specific findings of fact and state expressly its conclusions of law relating to each issue presented.
Notes of Decisions
State of Arizona v. Phil Gutierrez, 278 P.3d 1276 (Ariz. 2012).
“on those claims that present a material issue of fact or law ” (emphasis added), but § 13-4238(A) and Rule 32.8(a) provide for an evidentiary hearing only “to determine issues of material fact.”
State v. Spurling, No. 1 CA-CR 12-0788 (Ariz. Ct. App. Apr. 7, 2015).
· cites it 2× “These “findings” and “conclusions” may not fully comply with § 13-4238(D) and Rule 32.8(d). On this record, however, we need not remand for more specific findings and conclusions because the record is sufficient to allow us to perform an appropriate appellate review.”
Gwen v. Mascher, No. 3:20-cv-08327 (D. Ariz. Jan. 21, 2021).
“” 24 In Ground Six, Petitioner claims his Fourteenth Amendment due process rights 25 were violated because the trial court admitted “forged or fabricated evidence,” made 26 “incorrect legal conclusions,” and “deprived Petitioner of his right to hold an evidentiary 27 hearing…”
Ariz. Rev. Stat. § 13-4238(A): 1 case
State of Arizona v. Phil Gutierrez, 278 P.3d 1276 (Ariz. 2012).
“on those claims that present a material issue of fact or law ” (emphasis added), but § 13-4238(A) and Rule 32.8(a) provide for an evidentiary hearing only “to determine issues of material fact.”
Ariz. Rev. Stat. § 13-4238(D): 1 case
State v. Spurling, No. 1 CA-CR 12-0788 (Ariz. Ct. App. Apr. 7, 2015).
“These “findings” and “conclusions” may not fully comply with § 13-4238(D) and Rule 32.8(d). On this record, however, we need not remand for more specific findings and conclusions because the record is sufficient to allow us to perform an appropriate appellate review.”
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