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60-1507. Prisoner in custody under sentence; motion attacking sentence, hearing and judgment; time limitations. (a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may, pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence.

(b) Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.

(c) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

(d) Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

(e) Exclusiveness of remedy. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced said applicant, or that such court has denied said applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of said applicant's detention.

(f) Time limitations. (1) Any action under this section must be brought within one year of:

(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction;

(B) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition; or

(C) the decision of the district court denying a prior motion under this section, the opinion of the last appellate court in this state to exercise jurisdiction on such prior motion or the denial of the petition for review on such prior motion, whichever is later.

(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.

(A) For purposes of finding manifest injustice under this section, the court's inquiry shall be limited to determining why the prisoner failed to file the motion within the one-year time limitation or whether the prisoner makes a colorable claim of actual innocence. As used herein, the term actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence.

(B) If the court makes a manifest-injustice finding, it must state the factual and legal basis for such finding in writing with service to the parties.

(3) If the court, upon its own inspection of the motions, files and records of the case, determines the time limitations under this section have been exceeded and that the dismissal of the motion would not equate with manifest injustice, the district court must dismiss the motion as untimely filed.

(g) The amendments made to subsection (f) by this act shall not bar actions under this section that are brought within one year of the effective date of this act.

History: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24; L. 2003, ch. 65, § 1; L. 2016, ch. 58, § 2; L. 2022, ch. 47, § 4; July 1.

Cross References to Related Sections:

Appeals, see 60-2103.

Law Review and Bar Journal References:

"Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 203 (1962).

"Some Comments on the New Code of Civil Procedure," Emmet A. Blaes, 12 K.L.R. 75, 78 (1963).

"Post Conviction Motions," J. Richard Foth, Arthur E. Palmer, 12 K.L.R. 493, 494, 496 (1964).

Case note on compensation of counsel for indigent defendant, James M. Whittier, 13 K.L.R. 423, 425 (1965).

Discussed in criticizing provision for appointment of counsel hereunder in Rule No. 121 of Kansas supreme court, Spencer A. Gard, 33 J.B.A.K. 273 (1964).

Case law concerning indigent's right to counsel, William M. Ferguson and Paul E. Wilson, 33 J.B.A.K. 16, 71, 72 (1964).

"Notes on Criminal Procedure in the State Courts," Frank R. Gray, 34 J.B.A.K. 316 (1965).

1963-65 survey of criminal law and procedure, Paul E. Wilson and George D. Blackwood, Jr., 14 K.L.R. 221, 231, 233, 238, 240 (1965).

"Appellate Counsel for the Indigent Accused," John F. Fontron, 6 W.L.J. 417, 419, 422 (1967).

"The Conflict Between Probation and the Right to Appeal in Kansas," Jerry L. Donnelly, 15 K.L.R. 569, 574 (1967).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 16 K.L.R. 125, 129 (1967).

"Reducing Post-Conviction Litigation," Richard H. Seaton, 36 J.B.A.K. 99 (1967).

Judicial diminution of state remedies before consideration of federal habeas corpus, 37 J.B.A.K. 109, 110 (1968).

"The Kansas Sexual Offender Act and Its Administration," Lawrence A. Dimmitt, 8 W.L.J. 21, 39 (1968).

Similarity to federal statutes and more expansive state post-conviction procedures discussed, Michael L. Maxwell, 8 W.L.J. 248, 256, 257 (1969).

"Competency of Jurors Who Have Conscientious Scruples Against Capital Punishment," Russell LaVingne, Jr., 8 W.L.J. 352, 359 (1969).

"Federal Habeas Corpus and the State Prisoner," Michael L. Maxwell, 8 W.L.J. 248, 256 (1970).

Right to appeal on jurisdictional or other grounds after plea of guilty, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 169 (1970).

Discussion of the duty of prosecution to disclose evidence, Michael A. Barbara, 10 W.L.J. 54, 57 (1970).

Comment concerning habitual criminal act and sentence increase upon second trial for same offense, John E. Caton, 11 W.L.J. 301 (1972).

Comment on indigent's right to a transcript of record, 20 K.L.R. 745, 755, 757, 766 (1972).

"Collateral Challenges to Criminal Convictions," Keith G. Meyer and Larry W. Yackle, 21 K.L.R. 259 (1973).

"Waiver of Juvenile Court Jurisdiction in Kansas," Fred N. Six and Kenneth W. Reeves, 22 K.L.R. 193, 202 (1974).

Survey of criminal procedure, Cynthia Hartman, 15 W.L.J. 350, 356, 357 (1976).

"Decisions, Decisions, Decisions," Terry L. Bullock, 17 W.L.J. 26, 28 (1977).

Comment on alibi statute, 17 W.L.J. 432, 436 (1978).

Effective assistance of counsel, 18 W.L.J. 635, 640, 641 (1978).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225 (1979).

"Survey of Kansas Law: Criminal Law and Procedure," Keith G. Meyer, 27 K.L.R. 391, 422, 428 (1979).

"Criminal Procedure: Sufficiency of Evidence Now Reviewable in Habeas Corpus Proceeding," Mark Andrew Shaiken, 19 W.L.J. 616 (1980).

"Prosecutorial Misconduct in Closing Argument," Alan V. Johnson and Jeffrey S. Southard, 49 J.B.A.K. 205, 250 (1980).

"Habeas Corpus in Kansas: How is the Great Writ Used Today?" Martha J. Coffman, 64 J.K.B.A. No. 1, 26, 27, 28, 30, 31 (1995).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

Survey of Recent Cases, 46 K.L.R. 922, 928, 929 (1998).

"Habeas Corpus in Kansas: The Great Writ Affords Postconviction Relief at K.S.A. 60-1507," Martha J. Coffman, 67 J.K.B.A. No. 1, 16 (1998).

"Writing to the Kansas appellate courts: a lesson in appellate jurisdiction," Autumn Fox, 69 J.K.B.A. No. 4, 32 (2000).

"Criminal Procedure Survey of Cases," 48 K.L.R. 895 (2000).

"Giving Credit when Credit is due, The Kansas law on jail time credit," Franklin R. Pierce, 69 J.K.B.A. No. 9, 22 (2000).

"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 759 (2003).

"What Should Lawyers Know from the 2003 Kansas Legislative Session?" Whitney B. Damron, 72 J.K.B.A. No. 7, 16 (2003).

"Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas," Carol A. Beier, 44 W.L.J. 275 (2005).

"A Criminal Defendant's Inability to Sue His Lawyer for Malpractice: The Other Side of the Exoneration Rule [Canaan v. Bartee, 72 P.3d 911 (Kan. 2003)]," Amy L. Leisinger, 44 W.L.J. 693 (2005).

"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 983 (2005).

"Making the Most Out of the Cap: Maximizing Non-Economic Damages," Bradley J. Prochaska, J.K.T.L.A. Vol. 29, No. 6, 8 (2006).

Criminal Procedure Survey, 55 K.L.R. 797 (2007).

Criminal Procedure Survey, 56 K.L.R. 745 (2008).

Attorney General's Opinions:

County attorney and county counselor; duties; juvenile matters. 92-67.

Criminal appeals from district court; duties of county attorney; supplemental payment. 94-63.

CASE ANNOTATIONS

1. Void sentence can be set aside even though prisoner not entitled to release as result. Veronee v. State, 193 K. 681, 682, 683, 396 P.2d 360.

2. Federal law which has developed under 28 U.S.C., sec. 2255, should be given great weight in construing Kansas statute. State v. Richardson, 194 K. 471, 472, 473, 474, 476, 494, 399 P.2d 799.

3. An irregular or erroneous sentence is the same as a void one and within the court's power to correct. State v. Felton, 194 K. 501, 502, 503, 399 P.2d 817.

4. Movant has burden of proof; uncorroborated statements insufficient. Ramsey v. State, 194 K. 508, 509, 513, 399 P.2d 881.

5. Irregularities in preliminary hearing waived by guilty plea. State v. Blacksmith, 194 K. 643, 644, 400 P.2d 743.

6. Files and records show conclusively movant not entitled to relief, no formal plenary hearing necessary. State v. Burnett, 194 K. 645, 400 P.2d 971.

7. Indigent defendant not entitled to appointed counsel at preliminary hearing. Bergin v. State, 194 K. 656, 400 P.2d 978.

8. Movant's substantial rights not violated or prejudicially affected by lack of counsel at preliminary examination. State v. Ross, 194 K. 692, 693, 401 P.2d 915.

9. Answer by state is neither necessary nor required where movant is afforded complete hearing. Tipton v. State, 194 K. 705, 711, 402 P.2d 310.

10. Defendant has no constitutional right to appointed counsel at preliminary hearing. Tarr v. State, 194 K. 798, 402 P.2d 309.

11. Indigent not presumed to be unable to intelligently waive counsel. Powers v. State, 194 K. 820, 402 P.2d 328.

12. Petition for habeas corpus treated as application hereunder. Brimer v. State, 195 K. 107, 402 P.2d 789.

13. Court appointed counsel presumed to have performed his duties absent contrary showing. Huston v. State, 195 K. 140, 403 P.2d 122.

14. Movant not entitled to different counsel on appeal as matter of right. State v. Talbert, 195 K. 149, 150, 151, 402 P.2d 810.

15. Mentioned; letter to district court treated as a motion hereunder. Portis v. State, 195 K. 313, 315, 403 P.2d 959.

16. Proceeding hereunder is civil in nature and movant is plaintiff. Thompson v. State, 195 K. 318, 403 P.2d 1009.

17. Failure to exhaust remedies under this section prevents habeas corpus in federal court. Bratt v. Crouse, 346 F.2d 146.

18. Successive motion considered and denied. State v. Folk, 195 K. 349, 350, 351, 404 P.2d 961.

19. Action hereunder premature; an attempt to join appeal hereunder with direct criminal appeal. State v. Lewis, 195 K. 389, 395, 405 P.2d 796.

20. A judgment of conviction carries presumption of regularity and defendant has the burden to prove otherwise by a preponderance of the evidence. Goodwin v. State, 195 K. 414, 415, 420, 407 P.2d 528.

21. Court is not required to entertain successive motions. Goodwin v. State, 195 K. 414, 415, 420, 407 P.2d 528.

22. Motion to vacate and set aside prior judgment denied; no constitutional right to court appointed counsel for preliminary hearing. Chance v. State, 195 K. 430, 407 P.2d 236.

23. Motion attacking judgment and sentence considered. Miles v. State, 195 K. 516, 518, 407 P.2d 507.

24. Cited in action to set aside conviction and sentencing under 21-107a. Zumalt v. State, 195 K. 520, 407 P.2d 234.

25. Where files and records of sentencing court conclusively show that petitioner not entitled to relief, formal plenary hearing, appointment of counsel for petitioner and production of petitioner for hearing not required. Blacksmith v. State, 195 K. 523, 524, 525, 526, 407 P.2d 486.

26. Failure to provide counsel at preliminary hearing or inquire if mental coercion or promises were made not error. Walsh v. State, 195 K. 527, 407 P.2d 516.

27. Indigent accused has no constitutional right to court-appointed counsel at preliminary hearing. Cleveland v. State, 195 K. 544, 407 P.2d 488.

28. Motion hereunder overruled; evidentiary hearing in the petitioner's presence at discretion of court. Call v. State, 195 K. 688, 689, 693, 408 P.2d 668.

29. No hearing required when records conclusively show petitioner not entitled to relief. Sanders v. State, 195 K. 701, 703, 408 P.2d 587.

30. Collateral attack hereunder precluded by acquiescence in sentence and judgment by seeking probation. Sanders v. State, 195 K. 701, 704, 408 P.2d 587. This portion of opinion deleted and withdrawn. Sanders v. State, 196 K. 181, 408 P.2d 587.

31. Defendant has no right to court appointed counsel at preliminary hearing; adequacy of counsel considered; use of pretrial conference. Shores v. State, 195 K. 705, 706, 707, 408 P.2d 608.

32. Denial of motion to vacate judgment upheld. Chance v. State, 195 K. 711, 712, 714, 408 P.2d 677.

33. Various elements discussed; hearing denied as records indicate petitioner entitled to no relief hereunder. Fields v. State, 195 K. 718, 722, 408 P.2d 674.

34. Evidentiary hearing denied; whether petitioner knowingly and intentionally entered plea of guilty considered. Webb v. State, 195 K. 728, 731, 734, 408 P.2d 662.

35. Remedy may not be invoked when petitioner is serving another sentence in addition to one challenged. King v. State, 195 K. 736, 737, 738, 408 P.2d 599.

36. Various matters considered and motion denied. Groene v. State, 195 K. 740, 408 P.2d 580.

37. In proceedings hereunder, petitioner is presumed to have listed all grounds upon which he is relying; second or successive motions considered. Smith v. State, 195 K. 745, 746, 747, 408 P.2d 647.

38. Record examined and held not to be second or successive motion; federal statute considered in construing act. Perrin v. State, 196 K. 228, 231, 232, 233, 234, 410 P.2d 298.

39. Petitioner should be present where claim found to be substantial and evidentiary hearing granted to ascertain facts as to events in which he participated; right to notice prior to sentencing under habitual criminal act. Brown v. State, 196 K. 236, 239, 241, 242, 243, 409 P.2d 772.

40. Appeal in proceeding to vacate sentence hereunder cannot be joined with direct appeal from judgment and sentence. State v. Back, 196 K. 308, 312, 411 P.2d 601.

41. Motion no substitute for direct appeal; assertion of innocence may not be considered hereunder; remedy is commensurate with that previously available by habeas corpus; illegal arrest no grounds for vacation. Hanes v. State, 196 K. 404, 406, 407, 408, 411 P.2d 643.

42. Motion denied as second or successive. Hanes v. State, 196 K. 409, 410, 411 P.2d 646.

43. Motion denied; determination if claim substantial before granting full evidentiary hearing. McCall v. State, 196 K. 411, 412, 416, 411 P.2d 647.

44. Various issues raised in motion; full hearing with appellant present and represented by counsel not required. McFarland v. State, 196 K. 417, 418, 420, 411 P.2d 658.

45. Uncorroborated statement of movant insufficient to sustain burden of proof; motion overruled. Cooper v. State, 196 K. 421, 422, 427, 411 P.2d 652.

46. Various alleged trial errors considered; formal plenary hearing not required. Kelly v. State, 196 K. 428, 430, 431, 433, 411 P.2d 611.

47. No right to counsel at preliminary hearing; motion denied. Tate v. State, 196 K. 435, 436, 411 P.2d 661.

48. Various alleged trial errors considered; formal plenary hearing, appointment of counsel and production of petitioner for hearing not required. Smith v. State, 196 K. 438, 439, 440, 441, 444, 411 P.2d 663.

49. Various alleged trial errors considered; advice as to constitutional rights; assistance of counsel; motion denied. Case v. State, 196 K. 446, 447, 448, 411 P.2d 402.

50. Right to counsel at preliminary hearing; no objection made to evidence and not raised on motion for new trial, may not be raised hereunder; various alleged trial errors considered but motion denied. McCuan v. State, 196 K. 457, 458, 459, 460, 462, 463, 413 P.2d 69.

51. Appointment of counsel or representation at preliminary hearing; no plenary hearing required. Byrd v. State, 196 K. 466, 413 P.2d 61.

52. Remedy hereunder may not be invoked if prisoner would still be confined under the other sentences. Whiteaker v. State, 196 K. 583, 584, 585, 413 P.2d 122.

53. Motion hereunder denied; habitual criminal act (K.S.A. 21-107a) as administered not violative of due process and equal protection clauses of fourteenth amendment to U.S. Constitution. Gladen v. State, 196 K. 586, 413 P.2d 124.

54. When joining two different cases in motion hereunder permitted; evidentiary hearing not required; effective assistance of counsel at arraignment considered. Coats v. State, 196 K. 607, 609, 610, 413 P.2d 81.

55. Provisions of act provide for no inquiry into acts of board of probation and parole; petitioner properly charged and sentenced under "worthless check" act (K.S.A. 21-554). Foor v. State, 196 K. 618, 620, 413 P.2d 719.

56. Various alleged trial errors considered; motion denied. Fairbanks v. State, 196 K. 650, 651, 413 P.2d 985.

57. Appeal without counsel; treatment as affidavit for appointment of counsel under Rule No. 56. Porter v. State, 196 K. 732, 734, 414 P.2d 56.

58. Mental responsibility of accused may not be raised in proceeding hereunder. Kiser v. State, 196 K. 736, 737, 739, 413 P.2d 1002.

59. Judgment validity may be collaterally attacked on jurisdictional and constitutional grounds. State v. Minor, 197 K. 296, 300, 416 P.2d 724.

60. Denial of relief hereunder approved. Witt v. State, 197 K. 363, 366, 416 P.2d 717.

61. Provisions of this statute may not be invoked if petitioner if successful would still be confined. Lee v. State, 197 K. 371, 373, 416 P.2d 285.

62. Burden of proof is on movant and his uncorroborated testimony is insufficient. Miksell v. State, 197 K. 385, 388, 416 P.2d 780.

63. Assistance of counsel may be waived. Lloyd v. State, 197 K. 389, 390, 392, 416 P.2d 766.

64. Petitioner waives defense of former jeopardy by guilty plea. Cox v. State, 197 K. 395, 397, 416 P.2d 741.

65. Convictions had in a sister state may not be collaterally attacked. Chappell v. State, 197 K. 407, 416 P.2d 786.

66. Issue regarding voluntariness of guilty plea must be presented to state court. Daegele v. Crouse, 351 F.2d 306, 307.

67. Petitioner stated appeal being prosecuted; habeas corpus denied. Kelly v. Crouse, 352 F.2d 506.

68. Allegation in habeas corpus petition of denial of due process unsupported by record. Finan v. Crouse, 352 F.2d 507.

69. Detention lawful although sentence under 21-107a void; terms separable; habeas corpus denied. Browning v. Crouse, 356 F.2d 178, 179.

70. Judgment dismissing habeas corpus for failure to exhaust state remedies lacked specificity. Naillieux v. Crouse, 356 F.2d 499, 500.

71. Defendant entitled to seek federal habeas corpus where over year elapsed from time of filing hereunder and entry of order. Smith v. State of Kansas, 356 F.2d 654, 655, 656, 657.

72. Federal habeas corpus denied where appeal pending from denial of state remedy. Gordon v. Crouse, 357 F.2d 174.

73. Ample state remedies providing for post-conviction relief; federal habeas corpus denied. Blair v. Crouse, 360 F.2d 28, 29.

74. Court could not conclude prisoner's state remedies were adequate without facts concerning state appeal. Jones v. Crouse, 360 F.2d 157, 158.

75. No substantial issues raised which required petitioner's presence or appointment of counsel. Davis v. State, 197 K. 576, 577, 579, 419 P.2d 832.

76. A prisoner released on parole remains in "custody." Baier v. State, 197 K. 602, 603, 604, 606, 419 P.2d 865.

77. Court erred in determining in cursory proceeding that petitioner entitled to no relief. Rodgers v. State, 197 K. 622, 624, 625, 419 P.2d 828.

78. Prisoner cannot challenge sentence while confined under another sentence. Jackson v. State, 197 K. 627, 628, 629, 419 P.2d 937. Reversed due to amendment of supreme court rule; original appeal to be determined on merits. Jackson v. State, 202 K. 194, 195, 448 P.2d 18.

79. Judgment of conviction carries presumption of regularity; defendant has burden to establish violation of rights. Thompson v. State, 197 K. 630, 633, 634, 635, 419 P.2d 891.

80. Presence of petitioner at hearing not required under issues presented. Washington v. State, 197 K. 636, 637, 419 P.2d 639.

81. Correction of sentence; defendant must be present at time new sentence is pronounced. Roberts v. State, 197 K. 687, 421 P.2d 48.

82. Void sentence may be corrected; court in resentencing is limited to facts existing at time of original sentence. Bridges v. State, 197 K. 704, 421 P.2d 45.

83. Appellant failed to sustain burden of proving violation of rights at hearing. Williams v. State, 197 K. 708, 421 P.2d 194.

84. Defense of insanity not presented during trial cannot be considered; inquiry as to insanity rests in discretion of court. Van Dusen v. State, 197 K. 718, 719, 721, 722, 725, 726, 421 P.2d 197.

85. Invocation of habitual criminal act; motion denied; subsequent motion on grounds not presented not successive motion. Adair v. State, 198 K. 1, 2, 3, 422 P.2d 959.

86. Relief granted; waiver of right to counsel; no finding appointment not to advantage of accused; proceedings in court not imposing sentence. Chance v. State, 198 K. 16, 19, 20, 422 P.2d 868.

87. Various alleged irregularities considered and motion hereunder denied. Kenreck v. State, 198 K. 21, 22, 25, 422 P.2d 894.

88. Records indicate defendant not entitled to relief; not necessary to produce petitioner. Peterson v. State, 198 K. 26, 29, 422 P.2d 567.

89. Hearing not required if record indicates defendant not entitled to relief. Craig v. State, 198 K. 39, 422 P.2d 955.

90. Burden of proof; trial errors not reviewable; plenary hearing denied. Addington v. State, 198 K. 228, 229, 231, 234, 235, 238, 424 P.2d 871.

91. Petitioner not entitled to relief though sentence void due to confinement under another sentence. Davis v. State, 198 K. 271, 272, 273, 424 P.2d 471.

92. Motion may not be filed while appeal pending or may be perfected. State v. Washington, 198 K. 275, 280, 424 P.2d 478.

93. Notice to invoke Habitual Criminal Act; waiver; counsel at preliminary hearing. Brown v. State, 198 K. 345, 348, 424 P.2d 576.

94. Petitioner raised no questions of fact; hearing not required. Patterson v. State, 198 K. 507, 508, 426 P.2d 42.

95. Uncorroborated statement that counsel and court failed to advise of right of appeal; hearing not required. Ware v. State, 198 K. 523, 526, 426 P.2d 78.

96. Uncorroborated statement as to "effective assistance" of counsel insufficient to sustain burden of proof. Brown v. State, 198 K. 527, 530, 426 P.2d 49.

97. Proceeding hereunder not substitute for second appeal. Brown v. State, 198 K. 527, 528, 426 P.2d 49.

98. Defendant's uncorroborated statements insufficient to sustain burden of proof. Robinson v. State, 198 K. 543, 545, 426 P.2d 95.

99. Compensation of counsel appointed for indigent prisoner approved. Stahl v. Board of County Commissioners, 198 K. 623, 624, 625, 626, 627, 628, 426 P.2d 134.

100. Mental examination rests in discretion of court; evidentiary hearing not required. McQueeney v. State, 198 K. 642, 643, 644, 426 P.2d 114.

101. Findings of trial court supported by evidence. Perrin v. State, 198 K. 650, 426 P.2d 39.

102. Validity of judgment and sentence for escape; no evidentiary hearing required. Henderson v. State, 198 K. 655, 656, 426 P.2d 92.

103. Conviction under city ordinance and state statute; records show no plenary hearing required. Earwood v. State, 198 K. 659, 426 P.2d 151.

104. Notice of invocation of habitual criminal act; unnecessary to appoint counsel and produce petitioner for hearing. Robertson v. State, 198 K. 662, 426 P.2d 52.

105. Motion denied upon basis of hearing; petitioner advised as to rights. John v. State, 198 K. 685, 687, 426 P.2d 74.

106. Duty of federal court to determine if findings of fact by state court have factual basis. Tipton v. Crouse, 361 F.2d 817, 818.

107. Habeas corpus denied; failure to exhaust available state remedies. Carroll v. Crouse, 361 F.2d 903, 904.

108. Writ of habeas corpus denied; state remedies not exhausted. Davis v. Crouse, 363 F.2d 382, 383.

109. Motion to vacate judgment and sentence under habitual criminal act denied. Palmer v. State, 199 K. 73, 427 P.2d 492.

110. Hearing unnecessary; files and records indicate preliminary hearing waived and prisoner entitled to no relief. Alcorn v. State, 199 K. 112, 113, 427 P.2d 588.

111. At proceeding for increase in and resentencing of defendant it is mandatory that he be personally present. Aeby v. State, 199 K. 123, 127, 427 P.2d 453.

112. Petitioner failed to establish constitutional rights violated; representation by attorney of defendant's choice not licensed in state not ground for reversal. Blakesley v. State, 199 K. 128, 427 P.2d 497.

113. Section provides exclusive statutory remedy for prisoner in custody to make a collateral attack on a sentence. Smith v. State, 199 K. 132, 135, 427 P.2d 625.

114. Various alleged errors considered; petitioner failed to establish violation of rights. Wright v. State, 199 K. 136, 427 P.2d 611.

115. In absence of evidence other than petitioner's uncorroborated statement it is assumed counsel advised petitioner of rights. Allen v. State, 199 K. 147, 149, 427 P.2d 598.

116. Where petitioner failed to name witness or designate evidence to support allegations, summary denial of motion is proper; acceptance of plea of guilty considered. Wagner v. State, 199 K. 154, 427 P.2d 495.

117. Proceeding hereunder not substitute for second appeal; trial errors may be raised only if exceptional circumstances excuse failure to appeal. Minor v. State, 199 K. 189, 190, 429 P.2d 760.

118. Where no substantial questions of law or triable issues of fact presented, no requirement for evidentiary hearing, notice of hearing, presence of defendant or appointment of counsel; section not substitute for second appeal. Carter v. State, 199 K. 290, 291, 428 P.2d 758.

119. No error in trial court failing to appoint counsel, not holding evidentiary hearing or in finding petitioner represented by competent counsel. Smith v. State, 199 K. 293, 295, 296, 429 P.2d 103.

120. Trial court erred in failing to appoint attorney to assist petitioner in his appeal. Greer v. State, 199 K. 354, 429 P.2d 942.

121. Appointment of counsel and evidentiary hearing unnecessary as files and records show appellant not entitled to relief; waiver of notice of application of habitual criminal act and evidence of prior conviction considered. Burnett v. State, 199 K. 362, 429 P.2d 923.

122. No error found in trial court summarily overruling motion hereunder. Redd v. State, 199 K. 431, 432, 433, 429 P.2d 925.

123. Motion to vacate, set aside or correct sentence not available while appeal of conviction and sentence pending; prisoner serving valid sentence cannot challenge validity of another sentence. Thomas v. State, 199 K. 459, 461, 464, 465, 466, 430 P.2d 268.

124. Record examined and no error found; denial of second motion for relief upheld. Fairbanks v. State, 199 K. 501, 430 P.2d 293.

125. Uncorroborated testimony of movant hereunder insufficient to sustain burden of proof. Chambers v. State, 199 K. 483, 484, 485, 430 P.2d 241; Lieser v. State, 199 K. 503, 505, 430 P.2d 243.

126. Defendant's right to notice of intent to invoke habitual criminal act may be waived. Lieser v. State, 199 K. 503, 505, 506, 430 P.2d 243.

127. Contemporaneous objection rule applied; assistance of counsel and peremptory challenges considered. Mize v. State, 199 K. 666, 667, 433 P.2d 397.

128. Record examined; denial of motion to vacate judgment under 21-531 upheld. Hensley v. State, 199 K. 728, 730, 731, 433 P.2d 344.

129. Record examined; no error found in denying relief in proceeding hereunder. Cox v. State, 199 K. 797, 798, 799, 433 P.2d 470.

130. No error in denying relief hereunder; uncorroborated evidence of petitioner insufficient to sustain burden of proof. Metcalf v. State, 199 K. 800, 805, 433 P.2d 450.

131. Sentence cannot be challenged hereunder where, notwithstanding decision, confinement valid under another sentence. Peterson v. State, 200 K. 18, 19, 434 P.2d 542.

132. When judgment and sentence entered upon voluntary plea of guilty, no review of sufficiency of the evidence. Toland v. State, 200 K. 184, 434 P.2d 550.

133. Right of appeal not constitutionally guaranteed; no error in not appointing counsel where defendant indicated no desire to appeal. State v. McGee, 200 K. 188, 189, 434 P.2d 841.

134. Doctrine of abuse of remedy invoked. Cox v. State, 200 K. 198, 199, 200, 201, 434 P.2d 843.

135. Record of trial court denying relief examined; no error shown. Jolly v. State, 200 K. 202, 203, 434 P.2d 547.

136. Order denying relief in proceeding instituted hereunder upheld. Mann v. State, 200 K. 422, 423, 425, 436 P.2d 358.

137. Proceeding hereunder not ordinarily a substitute for a second appeal from conviction. King v. State, 200 K. 461, 462, 436 P.2d 855.

138. Presence of defendant required at hearing of evidence on motion for relief hereunder only if there is involved a substantial issue of fact concerning events in which defendant personally participated. King v. State, 200 K. 461, 463, 436 P.2d 855.

139. Order denying motion to vacate sentence upheld; appeal had "no merit." Perry v. State, 200 K. 690, 691, 693, 694, 438 P.2d 83.

140. No error in denying motion hereunder; evidence taken by trial court pursuant to 21-403 upon petitioner's plea of guilty held sufficient. Rollins v. State, 200 K. 695, 696, 697, 438 P.2d 99.

141. Conditions of probation amounted to restraint on petitioner's freedom sufficient to constitute being in "custody," entitling petitioner to maintain action hereunder; order denying motion for relief upheld. Miller v. State, 200 K. 700, 703, 704, 706, 438 P.2d 87.

142. Confinement in state security hospital for "safekeeping and treatment" does not constitute "in custody under sentence" as required herein; petitioner not entitled to institute proceedings hereunder. Johnson v. State, 200 K. 708, 709, 710, 711, 438 P.2d 96.

143. Writ of habeas corpus denied; no showing that remedy hereunder is inadequate. Carpenter v. Crouse, 279 F.Supp. 275, 280.

144. Writ of habeas corpus denied; state remedies not exhausted. Kinnell v. Crouse, 384 F.2d 811, 812, 813.

145. Uncorroborated statement as to incompetency of counsel insufficient to sustain burden of showing incompetency; trial court did not err in failing to grant evidentiary hearing. Wisely v. State, 201 K. 377, 378, 440 P.2d 632.

146. Trial court did not err in denying motion to vacate sentences; plea of guilty not coerced; statements of petitioner were uncorroborated. Stiles v. State, 201 K. 387, 440 P.2d 592.

147. Record examined; full evidentiary hearing; order denying relief proper. Rodgers v. State, 201 K. 766, 443 P.2d 252.

148. Motion to vacate sentence; record examined; no evidence justifying relief. Yoho v. State, 201 K. 775, 776, 442 P.2d 1012.

149. Conviction of 1 st degree robbery; defendants absence; waiver of right; record reviewed; no error. State v. Chuning, 201 K. 784, 443 P.2d 248.

150. Conviction of murder; record reviewed; no error. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

151. Guilt or innocence of convicted person not properly justiciable under this section. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

152. Mere conclusionary contentions not sufficient basis for relief. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

153. Evidentiary hearing not required in proceeding hereunder. Bundy v. State, 201 K. 793, 794, 443 P.2d 259.

154. Supreme Court Rule No. 121 (60-2701) adopted to supplement procedure hereunder; purpose; effect of noncompliance. White v. State, 201 K. 801, 803, 804, 805, 443 P.2d 182.

155. Conviction of felonious assault; no error in overruling motion to vacate sentence. Wheeler v. State, 202 K. 134, 446 P.2d 777.

156. Conviction of burglary and larceny; motion to vacate sentence; record examined; relief denied. Huncovsky v. State, 202 K. 138, 446 P.2d 772.

157. District court did not err in refusing evidentiary hearing and denying relief. Chritton v. State, 202 K. 140, 446 P.2d 398.

158. Trial court's findings at evidentiary hearing reviewed and no error disclosed. Angle v. State, 202 K. 142, 446 P.2d 832.

159. Formal defect in journal entry did not void sentence. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

160. No constitutional right to counsel at preliminary hearing. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

161. Where evidentiary hearing granted, movant entitled to plenary hearing held in his presence. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

162. No error in denial of evidentiary hearing; possibility of invoking 21-107a did not impair constitutional rights. Whaley v. State, 202 K. 175, 446 P.2d 397.

163. Appellant not deprived of speedy trial; requirement of 62-1431 met. Basker v. State, 202 K. 177, 446 P.2d 780.

164. Under supreme court rule No. 120 (60-2702), as amended in 1968, petitioner granted new hearing. Davis v. State, 202 K. 192, 193, 446 P.2d 830.

165. Considered in denying relief on writ of habeas corpus. Moore v. Crouse, 393 F.2d 489, 490.

166. Importance of proceeding under section considered; prisoner failing to file hereunder had not exhausted state remedies. Brown v. Crouse, 395 F.2d 755, 756; Omo v. Crouse, 395 F.2d 757.

167. Cited in reviewing procedure for handling petitions, by state prisoners, for federal writ of habeas corpus. Brown v. Crouse, 399 F.2d 311, 312.

168. Petitioner must pursue post-conviction remedies prior to federal habeas corpus though issues were considered on direct appeal; federal court should hold evidentiary hearing if state court declines. Eldridge v. Crouse, 400 F.2d 94, 95.

169. In exceptional circumstances and where constitutional rights are affected, review may be obtained under supreme court rule No. 121 (60-2702). Holt v. State, 202 K. 759, 763, 451 P.2d 221.

170. Motion to vacate judgment and sentence; record examined; full evidentiary hearing; no error. Wippel v. State, 203 K. 207, 210, 453 P.2d 43.

171. Proceeding for post-conviction relief must be filed in court imposing sentence. Williams v. State, 203 K. 246, 247, 248, 452 P.2d 856.

172. Voluntary statement taken after advising of rights not inadmissible solely because of lack of counsel. Morris v. State, 203 K. 249, 250, 452 P.2d 840.

173. Burden of proving bad faith on prosecutor rests on person alleging it. Scoggins v. State, 203 K. 480, 490, 454 P.2d 550.

174. Various alleged errors reviewed and conviction under 21-549 upheld. Bush v. State, 203 K. 494, 496, 499, 454 P.2d 429.

175. Record reviewed; no error in conviction for murder. Knight v. State, 203 K. 652, 653, 455 P.2d 578.

176. Question of whether plea of guilty was voluntary is question of fact; burden of proving involuntariness is upon movant. White v. State, 203 K. 687, 688, 690, 455 P.2d 562.

177. Uncorroborated statements not sufficient to show guilty pleas the result of coercion of counsel. Sharp v. State, 203 K. 937, 940, 941, 945, 457 P.2d 14.

178. Relief hereunder denied; findings of the district court at an evidentiary hearing fully supported by record. Johnson v. State, 203 K. 947, 949, 952, 953, 457 P.2d 181.

179. Relief hereunder denied; endorsement of additional names on information, even during trial, is discretionary; receipt of verdict by substitute judge, without objection by defendant, is not reversible error. Peterson v. State, 203 K. 959, 960, 961, 962, 457 P.2d 6.

180. Notice of appeal from denial of motion hereunder treated as request for appointment of counsel. State v. Clark, 204 K. 38, 41, 460 P.2d 586.

181. Appeal from evidentiary hearing held hereunder without merit; defendant's plea of guilty was knowingly, understandingly and voluntarily made; defendant had effective assistance of counsel. Mathues v. State, 204 K. 204, 209, 460 P.2d 545.

182. Points raised on appeal from denial of motion hereunder fully considered and decided in direct appeal from conviction. Eaton v. State, 204 K. 222, 460 P.2d 447.

183. Motion for relief hereunder properly denied; no evidence of hostile or invidious discrimination. Miller v. State, 204 K. 223, 224, 460 P.2d 501.

184. No error in denying evidentiary hearing on motion to vacate and set aside sentence. Griffin v. State, 204 K. 340, 343, 461 P.2d 814.

185. Case remanded and further proceedings directed; limited collateral proceeding conducted by trial court to determine voluntariness of confession violated appellant's constitutional rights. Barnes v. State, 204 K. 344, 347, 348, 360, 461 P.2d 782.

186. Failure to appeal conviction excused; exceptional circumstances found pursuant to Rule No. 121. Barnes v. State, 204 K. 344, 345, 346, 348, 350, 351, 352, 360, 461 P.2d 782.

187. No waiver of fundamental constitutional rights by appellant; state failed to show the intentional relinquishment or abandonment of a known right or privilege. Barnes v. State, 204 K. 344, 352, 357, 360, 461 P.2d 782.

188. Uncorroborated testimony insufficient to establish right to relief; collateral attack on judgment not a substitute for second appeal. Lee v. State, 204 K. 361, 362, 461 P.2d 743.

189. Petitioner's pleas of guilty were freely and voluntarily entered; no denial of effective assistance of counsel; relief hereunder denied. Davis v. State, 204 K. 372, 373, 461 P.2d 812.

190. Relief hereunder denied; when files and records show conclusively the movant is entitled to no relief it is not error to conclude the proceedings by summary hearing, in absence of movant and without appointing counsel to represent him. Daugherty v. State, 204 K. 604, 606, 464 P.2d 221.

191. The burden of establishing incompetency of an attorney or the ineffective assistance of counsel, to the extent necessary to overcome the presumption of regularity of a conviction, is upon the petitioner. Baker v. State, 204 K. 607, 608, 612, 613, 618, 464 P.2d 212.

192. Failure to determine if confession was freely and voluntarily made; case remanded. Baker v. State, 204 K. 607, 615, 464 P.2d 212.

193. Proceeding hereunder not a substitute for direct appeal involving mere trial errors. Baker v. State, 204 K. 607, 609, 610, 611, 464 P.2d 212.

194. Appeal from order denying relief hereunder without merit; judgment affirmed. Collins v. State, 204 K. 619, 620, 622, 464 P.2d 1018.

195. Relief denied; conviction of felony, not sentence imposed, controls application of 21-107a. Nelson v. State, 204 K. 623, 464 P.2d 7.

196. Relief denied; no error shown. Nall v. State, 204 K. 636, 465 P.2d 957.

197. Proceeding hereunder not substitute for direct appeal, but "exceptional circumstances" pursuant to Rule No. 121 permit review of alleged trial errors having constitutional basis. Davis v. State, 204 K. 816, 817, 819, 466 P.2d 311.

198. Denial of motion to set aside judgment and sentence upheld; no corroborating evidence to support contention of error in denying motion to change venue. Davis v. State, 204 K. 816, 817, 819, 466 P.2d 311.

199. No appeal from conviction taken; proceeding hereunder not substitute for direct appeal; no error in denying continuance of evidentiary hearing for purpose of obtaining unavailable transcript of trial. Jackson v. State, 204 K. 823, 824, 825, 826, 827, 828, 829, 465 P.2d 927.

200. No error in denying motion to vacate sentence; uncorroborated statements insufficient to sustain burden of proof; issue of double jeopardy not properly raised for first time in proceeding hereunder. Jackson v. State, 204 K. 823, 824, 825, 826, 827, 828, 829, 465 P.2d 927.

201. Juror may not impeach verdict in which he himself joined by testifying at a proceeding hereunder as to reasoning employed by jury in reaching its decision or the influences on mental processes of jury in reaching its verdict; proceeding not substitute for second appeal. Ingram v. State, 204 K. 836, 837, 838, 465 P.2d 925.

202. Proceeding hereunder which collaterally attacks judgment may not be used as substitute for second appeal. Jones v. State, 204 K. 839, 840, 466 P.2d 353.

203. Proceeding hereunder not substitute for direct appeal involving trial errors, but if errors affect constitutional rights and exceptional circumstances excuse failure to appeal, they may be raised in said proceeding. Jackson v. State, 204 K. 841, 842, 843, 846, 466 P.2d 305.

204. Cited in discussion of exhaustion of state remedies. Smith v. Crouse, 298 F.Supp. 1029, 1032, 1036 (1968).

205. Petitioner did not learn of denial by Kansas court of motion to vacate sentence in time to appeal; failure to appeal not a bar to federal habeas corpus relief. Oswald v. Crouse, 420 F.2d 373, 374.

206. Petitioner failed to exhaust state court remedies before seeking federal habeas corpus relief. Hudson v. Crouse, 420 F.2d 416, 417, 419.

207. In action brought hereunder, it is held an illegal arrest and detention do not, standing alone, invalidate a subsequent conviction. Kinnell v. State, 205 K. 445, 469 P.2d 348.

208. Proceeding hereunder does not provide a method of inquiry into priority of acts of Kansas board of probation and parole. Prescher v. State, 205 K. 636, 638, 639, 471 P.2d 349.

209. Exercise of discretion to invoke the habitual criminal act under supervision and control of county attorney. Bruffett v. State, 205 K. 863, 866, 472 P.2d 206.

210. In proceeding hereunder, the petitioner did not establish coercion in his plea of guilty. Cox v. State, 205 K. 867, 868, 870, 876, 473 P.2d 106.

211. No constitutional right to be furnished counsel at preliminary examination on felony charge. Stewart v. State, 206 K. 147, 476 P.2d 652.

212. Trial errors will be considered in proceedings hereunder only where constitutional rights have been impaired. Tuscano v. State, 206 K. 260, 263, 478 P.2d 213; Zimmer v. State, 206 K. 304, 316, 477 P.2d 791.

213. Plenary hearing and appointment of counsel unnecessary where motion fails to present a substantial question of law or a triable issue of fact. Robertson v. State, 206 K. 320, 322, 478 P.2d 196.

214. Section not substitute for direct appeal involving mere trial errors. Hannon v. State, 206 K. 518, 519, 520, 479 P.2d 852.

215. Where prosecution pending against inmate of penal institution, definition of speedy trial and procedure for relief governed by uniform mandatory disposition of detainers act (22-4301 et seq.). Thomas v. State, 206 K. 529, 530, 531, 479 P.2d 897.

216. Question of guilt or innocence not justiciable hereunder; no showing made of exceptional circumstances which would allow consideration of trial errors. Wood v. State, 206 K. 540, 541, 479 P.2d 889.

217. Motion to vacate, set aside or correct sentence cannot be maintained while appeal from conviction is pending. State v. Hamrick, 206 K. 543, 550, 479 P.2d 854.

218. In action brought hereunder, the trial court erred in vacating the increased sentence imposed on retrial and in resentencing the petitioner to the term originally imposed prior to the new trial. Young v. State, 207 K. 166, 167, 168, 483 P.2d 1020.

219. Petitioner's writ of habeas corpus treated as action hereunder for purpose of appeal. Paige v. Gaffney, 207 K. 170, 483 P.2d 494.

220. A third motion hereunder, alleging grounds different from those set forth in any previous motion, constitutes an abuse of the remedy and was properly dismissed by the sentencing court. Lee v. State, 207 K. 185, 186, 483 P.2d 1100.

221. A proceeding instituted hereunder which collaterally attacks a judgment of conviction should not be used as a substitute for a second appeal. Hacker v. State, 207 K. 195, 196, 197, 483 P.2d 484.

222. A proceeding hereunder cannot ordinarily be used as a substitute for a second appeal from a conviction. Neil v. State, 207 K. 212, 213, 483 P.2d 1117.

223. In proceeding hereunder there is substantial competent evidence to support finding oral confession was freely made. Baker v. State, 207 K. 214, 483 P.2d 1039.

224. Proceeding hereunder considered; court did not err in denying evidentiary hearing and denying relief. Greathouse v. State, 207 K. 216, 217, 483 P.2d 486.

225. In an appeal from order summarily dismissing a fourth motion hereunder, the trial court properly disposed of proceeding as an abuse of remedy. Lee v. State, 207 K. 220, 221, 483 P.2d 1100.

226. Federal courts will defer from ruling on merits of habeas corpus petitions by state prisoners until state courts have had reasonable opportunity to decide the claims hereunder. Prescher v. Crouse, 431 F.2d 209, 210, 211 (1970).

227. Exhaustion of state remedies is prerequisite to federal habeas corpus for state prisoner. Sanders v. Crouse, 313 F.Supp. 1031, 1032 (1970).

228. Failure to exhaust available state remedies; petition hereunder dismissed. Leigh v. Gaffney, 318 F.Supp. 85, 86 (1970).

229. Mentioned in connection with state's nunc pro tunc motion to correct journal entry to conform with sentence. State v. Lyon, 207 K. 378, 379, 382, 485 P.2d 332.

230. Sufficiency of information charging second degree burglary considered and upheld. Carithers v. State, 207 K. 607, 485 P.2d 1368.

231. Defendant's right to plead innocent and stand trial before jury not infringed. Weigel v. State, 207 K. 614, 485 P.2d 1347.

232. Petitioner's plea of guilty held to be understandingly, knowingly and voluntarily made. Voluntary plea of guilty waives irregularities which may have occurred in prior proceedings. Jones v. State, 207 K. 622, 623, 625, 485 P.2d 1349.

233. Post conviction remedy cannot be used as a second appeal to reexamine questions raised on direct appeal. Cipolla v. State, 207 K. 822, 823, 486 P.2d 1391.

234. Cited in an appeal raising issue that a commission was not appointed to determine sanity of defendant; conviction upheld. Taylor v. State, 208 K. 189, 490 P.2d 363.

235. Appeal based on double jeopardy where defendant convicted in city court and state court when crimes arose from single incident; conviction upheld. Cox v. State, 208 K. 190, 490 P.2d 381.

236. Where no substantial question of law or triable fact issue, relief properly denied. Preston v. State, 208 K. 648, 493 P.2d 187.

237. Court may appoint counsel even though no substantial question of law or triable fact are presented. Kowlec v. State, 208 K. 651, 493 P.2d 244.

238. Unless it fails to state a public offense, sufficiency of information may not be challenged in post-conviction proceeding. Weathers v. State, 208 K. 653, 493 P.2d 270.

239. Where two separate offenses grow out of same situation, trial on one does not bar prosecution on other, on grounds of double jeopardy. Coverly v. State, 208 K. 670, 493 P.2d 261.

240. Standards for validity of guilty plea discussed. Johnson v. State, 208 K. 862, 494 P.2d 1078.

241. In capital case, exclusion of jurors opposed to capital punishment not presumed to increase risk of conviction. Turner v. State, 208 K. 865, 866, 867, 494 P.2d 1130.

242. Where motion alleged facts requiring relief but not appearing in original record, petitioner entitled to evidentiary hearing. Floyd v. State, 208 K. 874, 875, 877, 495 P.2d 92.

243. Allegations of incompetency of counsel reviewed and gauged by totality of representation; denial of effective counsel not presumed. Bruffett v. State, 208 K. 942, 943, 945, 494 P.2d 1160.

244. Post conviction proceeding may not be used as second appeal. Yurk v. State, 208 K. 946, 947, 495 P.2d 87.

245. Federal application dismissed where state post-conviction remedies not exhausted. Leigh v. State of Kansas, 321 F.Supp. 195, 197.

246. Testimony of jurors not competent for purpose of impugning verdict. Ingram v. Crouse, 322 F.Supp. 1328, 1329.

247. Federal Civil Rights Act of 1871 does not authorize by-passing state post-conviction remedies. Davis v. State of Kansas, 327 F.Supp. 963, 966.

248. Petition for habeas corpus dismissed where state post-conviction remedies not exhausted. Davis v. State of Kansas, 327 F.Supp. 963, 966.

249. State prisoner cannot use the Federal Civil Rights Act to circumvent federal Habeas Corpus requirement that available state remedies must first be exhausted. Hamrick v. Morton, 436 F.2d 940.

250. Order denying relief affirmed; issue raised on direct appeal. Sagebiel v. State, 209 K. 209, 495 P.2d 530.

251. Under 21-2611 it does not matter whether burglary was punishable as a felony or as a misdemeanor. Sanders v. State, 209 K. 505, 496 P.2d 1394.

252. Post-conviction proceeding may not be used as a second appeal. Kirtdoll v. State, 209 K. 508, 509, 510, 496 P.2d 1396.

253. Successive motions hereunder on same grounds construed as abuse of remedy; remanded with direction to dismiss. Robinson v. State, 209 K. 667, 668, 498 P.2d 35.

254. Appeal hereunder; motion failed to present substantial questions of law or triable issues of fact; summary denial affirmed. Delano v. State, 209 K. 670, 672, 675, 498 P.2d 18.

255. Proceeding hereunder; defendant given timely notice of state's intention to invoke habitual criminal act. Wasson v. State, 210 K. 205, 206, 499 P.2d 1128.

256. Forgery complaint filed during petitioner's confinement in penitentiary; no apparent compliance with uniform mandatory disposition of detainers act. Hayes v. State, 210 K. 231, 499 P.2d 515.

257. Constitutional right to assistance of counsel not violated; guilty plea voluntarily entered; factual basis for plea. Widener v. State, 210 K. 234, 235, 240, 499 P.2d 1123.

258. Appeal from burglary conviction not perfected; out-of-time appeal opportunity refused; right to speedy trial not violated. Brizendine v. State, 210 K. 241, 242, 243, 244, 499 P.2d 525.

259. Petitioner hereunder made proper demand for speedy trial (62-2901 et seq.); conviction vacated, lack of jurisdiction. Pierson v. State, 210 K. 367, 368, 369, 370, 375, 502 P.2d 721.

260. Appeal of guilty plea conviction under 21-734 dismissed for lack of jurisdiction; proper remedy hereunder. State v. Mitchell, 210 K. 470, 471, 502 P.2d 850.

261. Question of whether trial court abused discretion in not allowing continuance to be raised on direct appeal. Johnson v. State, 210 K. 498, 502 P.2d 838.

262. Subsection (c) mentioned; sentencing court may deny successive motion for relief by same prisoner. Cantrell v. State, 210 K. 528, 502 P.2d 840.

263. Double jeopardy issue cannot be raised for first time in proceeding hereunder; adequate representation by counsel. Miller v. State, 210 K. 542, 502 P.2d 833.

264. Failure to advise of right to appeal; right not constitutionally granted or guaranteed; guilty plea voluntarily entered. Collins v. State, 210 K. 577, 578, 502 P.2d 851.

265. Trial counsel privately employed; appointed attorney perfected appeal; contention both counsel incompetent; no evidentiary basis; relief denied. Winter v. State, 210 K. 597, 598, 600, 601, 604, 502 P.2d 733.

266. Plea of guilty; motion to vacate judgment after release; alleged coercion and denial of due process; record reviewed; no error. McCarther v. State, 211 K. 152, 154, 505 P.2d 773.

267. Motion to vacate sentence; irregularities prior to guilty plea waived. Rhone v. State, 211 K. 206, 207, 505 P.2d 673.

268. Motion to vacate sentence enhanced under 21-107a; claim of no valid proof of prior felony; no error found. Brooks v. State, 211 K. 210, 505 P.2d 766.

269. Denial of effective assistance of counsel issue examined by trial court; order denying relief affirmed. Griffin v. State, 211 K. 514, 507 P.2d 363.

270. Motion to vacate sentence; constitutionality of alibi notice requirement considered on direct appeal not reconsidered hereunder. Jenkins v. State, 211 K. 593, 506 P.2d 1111.

271. Modification reducing sentence; hearing not required; defendant's presence or representation by counsel not required. Daegele v. State, 211 K. 612, 506 P.2d 1134.

272. Convictions on two of four counts set aside; arose from the same transaction and were duplicitous. Jarrell v. State, 212 K. 171, 510 P.2d 127.

273. Proceeding hereunder; no denial of due process, invasion of any constitutional right or double jeopardy found. Lynch v. State, 212 K. 177, 509 P.2d 1125.

274. Evidentiary hearing and appointment of counsel not required where record conclusively shows petitioner's pleas of guilty were voluntary. Ames v. State, 212 K. 409, 511 P.2d 219.

275. Defendant has no constitutional right to be placed in a pretrial lineup. Dunlap v. State, 212 K. 822, 512 P.2d 484.

276. Post-conviction remedy not a substitute for second appeal unless alleged errors affect constitutional rights and circumstances excuse failure to raise errors on direct appeal. Roy v. State, 213 K. 30, 31, 32, 33, 514 P.2d 832.

277. Mentioned in review of prior post-conviction action by defendant alleging constitutional errors in resentencing order under 21-107a. State v. Eaton, 213 K. 86, 87, 515 P.2d 807.

278. Appeal from denial of relief hereunder properly overruled; dismissal of direct appeal provides no basis for relief hereunder. Mayberry v. State, 213 K. 199, 200, 515 P.2d 819.

279. Post-conviction remedy cannot be used as second appeal to reexamine questions determined on direct appeal. Jones v. State, 213 K. 248, 515 P.2d 745.

280. Burden on accused to establish inadequacy of counsel; confinement in isolation insufficient of itself to sustain finding of coerced confession. Reid v. State, 213 K. 298, 299, 305, 306, 515 P.2d 1040.

281. Judgment and sentence imposed after voluntary guilty plea not subject to collateral attack hereunder on ground there was no factual basis for plea. State v. Dunham, 213 K. 469, 471, 476, 477, 517 P.2d 150.

282. Denial of motion without appointment of counsel or evidentiary hearing affirmed; guilty plea understandingly made; counsel effective. State v. Komarek, 213 K. 532, 533, 516 P.2d 912.

283. Evidentiary hearing on motion contesting voluntariness of guilty plea properly denied. Rice v. State, 213 K. 591, 592, 500 P.2d 400.

284. Cited; proceeding to revoke probation not reviewable by motion hereunder absent constitutional irregularities. Toman v. State, 213 K. 857, 859, 518 P.2d 502.

285. Motion hereunder; habitual criminal act (21-107a) not an unconstitutional delegation of judicial power. Baker v. State, 213 K. 874, 518 P.2d 537.

286. Motion hereunder; claims fully presented on appeal not reviewable by motion. Henderson v. State, 213 K. 890, 518 P.2d 392.

287. Petitioner deprived of effective assistance of counsel; abuse of discretion. Oswald v. State, 214 K. 162, 165, 519 P.2d 624.

288. Uniform mandatory dispositions of detainers act (22-4301 et seq.) inapplicable to petitioner when absent from institution. Taylor v. State, 214 K. 285, 519 P.2d 1398.

289. Conviction of escaping from boys' industrial school; prior felony conviction within meaning of habitual criminal act. LaVier v. State, 214 K. 287, 520 P.2d 1325.

290. Conclusory allegations insufficient to present justiciable issue hereunder. Potts v. State, 214 K. 369, 520 P.2d 1259.

291. Motion to vacate sentence and conviction; alleged errors reviewed and judgment affirmed. Underwood v. State, 214 K. 633, 522 P.2d 457.

292. Successive use of post conviction remedy justified where new constitutional issue involved. Cox v. State, 214 K. 652, 653, 654, 522 P.2d 173.

293. Federal sentence running consecutively with state sentence; credit on federal sentence; no entitlement to credit on state sentence. Cox v. State, 214 K. 652, 653, 654, 522 P.2d 173.

294. Constitutionality of habitual criminal act (21-107a) upheld. Kowalec v. State, 214 K. 779, 522 P.2d 173.

295. Voluntary plea to complaint charging violation of 21-608 and 21-609; no grounds to vacate sentence. Peterson v. State, 215 K. 253, 254, 524 P.2d 740.

296. Post conviction relief could not be used as substitute for appeal; supreme court rule no. 121 applied. Caldrone v. State, 215 K. 351, 524 P.2d 228.

297. Section not ordinarily used as substitute for appeal; exception; application of supreme court rule no. 121. Tillman v. State, 215 K. 365, 524 P.2d 772.

298. Denial of post-conviction relief; out of time appeal from original conviction authorized. Troy v. State, 215 K. 368, 524 P.2d 1127.

299. Conviction of second degree murder; review of adverse judgment for post-conviction relief; no denial of due process or equal protection. Martin v. State, 215 K. 387, 524 P.2d 220.

300. Filing of second successive motion constituted abuse of remedy under section; denial of relief. Yurk v. State, 215 K. 389, 524 P.2d 223.

301. Burglary conviction; affirmed on appeal; second motion; record examined; no error. Brizendine v. State, 215 K. 433, 434, 435, 436, 524 P.2d 718.

302. Inmate tried within one year after charges filed not denied speedy trial; no effective request under 22-4301 et seq. Townsend v. White, 215 K. 485, 486, 524 P.2d 758.

303. Prosecution for escape not double jeopardy; due process not denied. Collins v. State, 215 K. 489, 490, 524 P.2d 715.

304. Burden of proof on movant to establish incompetency of counsel; facts supported by evidence; sentencing proper. Burns v. State, 215 K. 497, 498, 499, 524 P.2d 737.

305. Second motion hereunder constituted abuse of remedy; dismissed. Walker v. State, 216 K. 1, 2, 3, 4, 530 P.2d 1235.

306. Motion hereunder; issues not presented in trial not considered on appeal. Churchill v. State, 216 K. 399, 532 P.2d 1070.

307. Motion hereunder; appellant cannot predicate error on actions taken by him in his own defense. Bloomer v. State, 216 K. 469, 533 P.2d 278.

308. Motion hereunder; rape is not a lesser included offense of aggravated kidnapping. Wisner v. State, 216 K. 523, 532 P.2d 1051.

309. Evidence insufficient to support contention of failure to abide by plea bargaining agreement. State v. Szopenske, 217 K. 536, 538 P.2d 722.

310. Allegations of not knowingly or intelligently making voluntary plea of guilty not supported by facts. Robinson v. State, 218 K. 1, 2, 4, 5, 542 P.2d 305.

311. Various alleged errors examined on appeal from order denying relief hereunder; guilty plea; judgment affirmed. Trotter v. State, 218 K. 266, 268, 543 P.2d 1023.

312. Conduct of defense counsel did not constitute inadequate counsel as matter of law; factor for consideration. Schoonover v. State, 218 K. 377, 378, 381, 543 P.2d 881.

313. Jury impanelled under 43-102; United States Supreme Court decision concerning essential components in selection not applied retroactively; relief denied. Roth v. State, 218 K. 413, 543 P.2d 931.

314. Analogically discussed; waiver hearing under 38-808 is quasi-criminal in nature; order appealable; appointment of counsel constitutionally required. In re Harris, 218 K. 625, 629, 544 P.2d 1403.

315. Allegations of improper certification as adult in juvenile court proceeding insufficient to sustain motion for relief. Decker v. State, 219 K. 416, 417, 548 P.2d 489.

316. Where allegation not conclusively refuted by record, evidentiary hearing required. Morrow v. State, 219 K. 442, 443, 444, 445, 447, 448, 548 P.2d 727.

317. Motion raised issue of fact as to petitioner's competency to plead guilty; evidentiary hearing ordered. Outland v. State, 219 K. 547, 548 P.2d 725.

318. Failure to grant full evidentiary hearing not error where no grounds for relief substantiated. Van Bebber v. State, 220 K. 3, 4, 5, 551 P.2d 878.

319. Denial of transcript at public expense not constitutional infringement. Van Bebber v. State, 220 K. 3, 4, 5, 551 P.2d 878.

320. Alleged errors in prosecution for second degree burglary rejected; summary denial of motion to vacate sentence. Lee v. State, 220 K. 221, 552 P.2d 626.

321. Alleged grounds for relief hereunder denied; conviction of marihuana sale. Cook v. State, 220 K. 223, 552 P.2d 985.

322. Proceeding hereunder may not be used as a substitute for a second appeal. Kirk v. State, 220 K. 278, 552 P.2d 633.

323. Court in accepting nolo contendere plea of first degree murder not required to advise as to parole eligibility; relief denied. Hicks v. State, 220 K. 279, 283, 552 P.2d 889.

324. Mere conclusionary contention without evidentiary basis not sufficient to require evidentiary hearing for relief hereunder. Hicks v. State, 220 K. 279, 283, 552 P.2d 889.

325. Denial of evidentiary hearing affirmed; legality of convictions in other states upheld. James v. State, 220 K. 284, 553 P.2d 345.

326. Proceedings hereunder cannot be used as a substitute for second appeal; S.Ct. Rule 121 (c) applied. Melton v. State, 220 K. 516, 517, 552 P.2d 969.

327. Referred to; no abuse of discretion in striking testimony of prosecution witness; lost statements. State v. Wilkins, 220 K. 735, 740, 556 P.2d 424.

328. Alleged errors in conviction of first degree murder reviewed; judgment denying motion affirmed. Green v. State, 221 K. 75, 558 P.2d 110.

329. Filing of second successive motion hereunder constituted abuse of remedy authorized by section and supreme court rule. Dunlap v. State, 221 K. 268, 269, 270, 559 P.2d 788.

330. Petition for relief involved appealable question; no trial errors affecting constitutional rights or exceptional circumstances excusing appeal; motion denied. Estes v. State, 221 K. 412, 414, 559 P.2d 392.

331. Burden of proof upon petitioner where conviction challenged on grounds of inadequate counsel. Oswald v. State, 221 K. 625, 626, 627, 628, 631, 632, 561 P.2d 838.

332. Section applied; new trial granted. Bey v. State, 1 K.A.2d 429, 566 P.2d 88.

333. Order entered on a motion filed pursuant to this section may be appealed as from a final judgment. Esters v. State, 1 K.A.2d 503, 504, 506, 571 P.2d 32.

334. Trial court did not err in refusing to hold evidentiary hearing based on alleged newly discovered evidence. Jackson v. State, 1 K.A.2d 744, 745, 746, 747, 573 P.2d 637.

335. Plea entered in judge's office while court in session, with court officials and defendant present and public not excluded entered "in open court." Morris v. State, 2 K.A.2d 34, 573 P.2d 1130.

336. Prosecution of defendant on felony charge by state contemporaneously with misdemeanor prosecution by city based on same conduct did not violate due process under facts. Cox v. State, 2 K.A.2d 121, 122, 575 P.2d 905.

337. Refusal to set aside convictions upheld; harmless error. Lassley v. State, 2 K.A.2d 158, 576 P.2d 1094.

338. Conclusionary contention that petitioner entitled to relief not sufficient to require evidentiary hearing for post-conviction relief. Sullivan v. State, 222 K. 222, 223, 564 P.2d 455.

339. Section applied; appeal from a judgment denying relief on a motion to vacate. White v. State, 222 K. 709, 712, 568 P.2d 112.

340. Trial judge erred in disqualifying another trial judge; order granting petitioner's motion hereunder reversed. Carpenter v. State, 223 K. 523, 524, 525, 527, 575 P.2d 26.

341. Defendant not entitled under 21-4614 to credit for time spent in jail on another unrelated charge. Campbell v. State, 223 K. 528, 575 P.2d 524.

342. Section had no application where petitioner was not attacking sentence in court in which sentence imposed. Beard v. Maynard, 223 K. 631, 634, 576 P.2d 611.

343. Petition to vacate sentence on conviction of second degree murder denied; dismissal of action on direct appeal by trial court upheld. Weser v. State, 224 K. 272, 273, 274, 579 P.2d 1214.

344. Right to assistance of counsel not denied by counsel suspended for failure to pay registration fee. Johnson v. State, 225 K. 458, 461, 465, 590 P.2d 1082.

345. Denial of motion hereunder affirmed; trial court's refusal to allow guilty plea withdrawal held proper. Burden v. State, 225 K. 549, 592 P.2d 451.

346. Second proceeding under section held properly dismissed; abuse of remedy. Schoonover v. State, 2 K.A.2d 481, 482, 484, 489, 490, 582 P.2d 292.

347. Petition alleging violation of constitutional rights by inmate of penitentiary dismissed; no abuse of discretion. Griffin v. Raines, 2 K.A.2d 596, 585 P.2d 620.

348. Cited; conviction for battery under 21-3413 reversed; inadequacy of waiver of counsel. State v. Daniels, 2 K.A.2d 603, 606, 586 P.2d 50.

349. Defendant who plea bargained could not change plea after sentence; motion to vacate hereunder without merit. Burden v. State, 2 K.A.2d 640, 641, 586 P.2d 65.

350. Case remanded for hearing on voluntariness of confession; appeal from conviction of aggravated assault. State v. Shuckahosee, 2 K.A.2d 717, 720, 587 P.2d 923.

351. Cited in action for libel by former counsel. Steere v. Cupp, 226 K. 566, 568, 602 P.2d 1267.

352. Where issue not raised at trial, remedy, if any, is under this section rather than on appeal. State v. Roberts, 226 K. 740, 745, 602 P.2d 1355.

353. Cited in holding presence of convicted defendant not required at hearing on post-verdict motion for new trial. State v. Bryant, 227 K. 385, 391, 607 P.2d 66.

354. Effect of failure to raise lack of preliminary hearing transcript and court's failure to advise of appeal right on direct appeal. Jones v. State, 3 K.A.2d 578, 579, 580, 581, 583, 601 P.2d 1135.

355. Cited as inapplicable; no appeal from denial of sentence modification motion filed more than 130 days after sentencing. State v. Henning, 3 K.A.2d 607, 608, 599 P.2d 318.

356. Mentioned in review of Kansas double jeopardy law; prosecution based on acts proved in former prosecution barred by 21-3108(2)(a). In re Berkowitz, 3 K.A.2d 726, 740, 602 P.2d 99.

357. Section provides relief only when person is in present custody under sentence. Johnson v. State, 4 K.A.2d 573, 574, 575, 608 P.2d 1044.

358. Under facts of case nolo contendere plea same as guilty plea; no jurisdictional grounds found to attack the proceedings. Lill v. State, 4 K.A.2d 40, 602 P.2d 129.

359. No statutory or constitutional requirement that counsel be appointed at each and every post-trial motion seeking new trial on grounds of newly discovered evidence. State v. Andrews, 228 K. 368, 373, 374, 375, 614 P.2d 447.

360. Where defendant knows and understands nature of charge, failure to furnish defendant with copy of indictment of information at arraignment does not vitiate plea. Poore v. State, 5 K.A.2d 210, 212, 613 P.2d 963.

361. Applied in holding denial of an evidentiary hearing not improper. Wright v. State, 5 K.A.2d 494, 495, 619 P.2d 155.

362. Denial of motion made hereunder improper; guilty plea to second degree murder not knowingly made. Clinkingbeard v. State, 6 K.A.2d 716, 718, 634 P.2d 159 (1981).

363. Defendant filed motion to modify sentence imposed under 21-4618 for conviction under 21-3301; 21-4618 applies only to article 34 crimes. Sutton v. State, 6 K.A.2d 831, 636 P.2d 187 (1981).

364. Post-conviction remedy hereunder must be exhausted prior to federal habeas corpus. Hernandez v. Atkins, 524 F.Supp. 707, 708 (1981).

365. Motion to take appeal out of time from conviction granted by district court; appeal dismissed for lack of jurisdiction. State v. Ortiz, 230 K. 733, 734, 735, 736, 640 P.2d 1255 (1982).

366. Rules applicable to constitutional guarantees in actions hereunder not applicable to appeals from dismissal of habitual violator of traffic laws action. State v. Boos, 232 K. 864, 872, 659 P.2d 224 (1983).

367. Cited; burglary held to be inherently dangerous to human life and supports felony murder rule. Smith v. State, 8 K.A.2d 684, 688, 666 P.2d 730 (1983).

368. Section provides alternative remedy to direct appeal from sentence; if direct appeal taken identical issue may not be raised hereunder. State v. Green, 233 K. 1007, 1011, 666 P.2d 716 (1983).

369. Trial court must have opportunity to rule on question of ineffective counsel before presented on appeal. State v. Chamberlain, 234 K. 422, 425, 672 P.2d 604 (1983).

370. Where motions not susceptible of resolution by motion for new trial, matter considered hereunder. State v. Logan, 9 K.A.2d 353, 354, 678 P.2d 181 (1984).

371. Relief denied; PIK Crim. 54.01 does not impermissibly shift burden of proof from state to accused. Kirtdoll v. State, 9 K.A.2d 711, 687 P.2d 35 (1984).

372. Defendant must be present in court for resentencing. State v. Turbeville, 235 K. 993, 1002, 686 P.2d 138 (1984).

373. Time for filing motion to modify sentence under 21-4603(3) not extended by collateral proceeding hereunder. State v. Timmerman, 236 K. 414, 416, 691 P.2d 33 (1984).

374. Yardstick to be used in measuring effective assistance of counsel stated; new two-pronged standard adopted in addition to present guidelines. Chamberlain v. State, 236 K. 650, 651, 656, 694 P.2d 468 (1985).

375. Failure to forthwith transcribe recorded oral testimony supporting search warrant (22-2502(a)) technical irregularity only (22-2511); failure to challenge not deficient representation. Hearron v. State, 10 K.A.2d 229, 230, 234, 696 P.2d 418 (1985).

376. Motion for transcripts did not comply with requirements for habeas corpus motion. State v. McKinney, 10 K.A.2d 459, 701 P.2d 701 (1985).

377. Hearing denied where facts previously determined in post-conviction hearing from which no appeal taken. Palmer v. State, 10 K.A.2d 656, 657, 707 P.2d 1091 (1985).

378. Generally held if constitutional rights are at issue, habeas corpus is available even though no direct appeal taken. In re Habeas Corpus Application of Gilchrist, 238 K. 202, 205, 708 P.2d 977 (1985).

379. Cited; intent of sentencing judge when one of multiple sentences vacated; propriety of judge's ex parte communication with penitentiary discussed. Niblock v. State, 11 K.A.2d 30, 711 P.2d 771 (1985).

380. Sentencing court's specifying amount of restitution owed for parole or probation purposes (22-3717) examined. Tucker v. State, 11 K.A.2d 51, 54, 711 P.2d 1343 (1986).

381. Cited; remand procedure on ineffective counsel question permissible as alternative hereto when new counsel enters after appeal filed. State v. Van Cleave, 239 K. 117, 119, 120, 121, 716 P.2d 580 (1986).

382. Probation may be summarily revoked when based on misrepresentations made at sentencing; new sentence cannot be increased. Andrews v. State, 11 K.A.2d 322, 323, 325, 720 P.2d 227 (1986).

383. Failure to advise about expungement rights (21-4619) and appeal rights (38-1681(a)(1)(A)) when defendant no longer "juvenile offender" (38-1602 (b)(3)) examined. Reubke v. State, 11 K.A.2d 353, 720 P.2d 1141 (1986).

384. Court of appeals lacks jurisdiction of habeas corpus issue also on direct appeal to supreme court. In re Habeas Corpus Application of Maas, 11 K.A.2d 597, 598, 599, 730 P.2d 368 (1986).

385. Noted; requirement of written evidence in record regarding right to counsel (22-3426) examined. State v. Turner, 239 K. 360, 364, 721 P.2d 255 (1986).

386. Differences with 22-3504 examined; sole purpose of 22-3504(2) is to minimize difficulties encountered in a 60-1507 action. State v. Thomas, 239 K. 457, 459, 460, 720 P.2d 1059 (1986).

387. Cited; any defendant, whether convicted by plea or trial, may challenge sentence on appeal (22-3602); (State v. Haines, 238 K. 478, 712 P.2d 1211 (1986) overruled). State v. Harrold, 239 K. 645, 646, 649, 722 P.2d 563 (1986).

388. Where court permits extensive additional discovery and hearings after plea and before sentencing, appeal considered proceeding hereunder. State v. Alsup, 239 K. 673, 674, 722 P.2d 1100 (1986).

389. Cited; statutory guidelines for acceptance of guilty plea (22-3210) examined. Noble v. State 240 K. 162, 163, 727 P.2d 473 (1986).

390. Cited; court's dismissal of charge on own motion after state's case, then reinstatement with further proceedings as double jeopardy examined. Lowe v. State, 242 K. 64, 744 P.2d 856 (1987).

391. Cited; effective assistance of appellate counsel, issues not raised on appeal, discretion in sentencing examined. Baker v. State, 243 K. 1, 4, 755 P.2d 493 (1988).

392. Cited; jurisdiction to convict of aggravated sexual battery (21-3518) on information charging rape (21-3502) examined. Patterson v. State, 12 K.A.2d 731, 754 P.2d 1207 (1988).

393. Cited; legality of preliminary inquiry on motion regarding new evidence before requiring witnesses to appear examined. State v. Dunn, 243 K. 414, 436, 758 P.2d 718 (1988).

394. Cited; procedures by which defendant may attack imprisonment conditions or constitutionality or legality of sentence examined. State ex rel. Stephan v. Clark, 243 K. 561, 569, 759 P.2d 119 (1988).

395. Absence of constitutional right to counsel when mounting collateral attack on conviction examined. Robinson v. State, 13 K.A.2d 244, 767 P.2d 851 (1989).

396. Time for filing motion to modify sentence (21-4603(3)) not extended by filing collateral proceeding. State v. Saft, 244 K. 517, 520, 769 P.2d 675 (1989).

397. Distinction between civil proceeding determining habitual violator status (8-286) and criminal conviction noted. State v. Whitehurst, 13 K.A.2d 411, 772 P.2d 1251 (1988).

398. Assessing filing fee cost permitted after adverse determination in 60-1507 motion filed under poverty affidavit. Fought v. State, 14 K.A.2d 17, 18 (1989).

399. Failure to allege essential elements of offense in information as voiding conviction thereof noted. Zapata v. State, 14 K.A.2d 94, 782 P.2d 1251 (1989).

400. Appeal from probation denial following guilty plea where statutory presumption of probation applies (21-4606a) examined. State v. VanReed, 245 K. 213, 216, 777 P.2d 794 (1989).

401. Untimely notice of appeal as constituting ineffective assistance of counsel and granting right to appeal determined. State v. Smith, 245 K. 381, 383, 781 P.2d 666 (1989).

402. Nolo contendere plea to underlying charge as constituting waiver of statute of limitations defense (21-3106) determined. Lowe v. State, 14 K.A.2d 119, 122, 783 P.2d 1313 (1990).

403. Conscientious counsel should not undertake appeal where, in exercise of reasonable professional judgment, no meritorious issues exist. State v. Requena, 14 K.A.2d 234, 235, 788 P.2d 287 (1990).

404. Defendant's right to counsel at hearing on motion to modify sentence (21-4603(3)) determined. State v. Pierce, 246 K. 183, 188, 787 P.2d 1189 (1990).

405. Criminal statutes of limitations as procedural noted. State v. Noah, 246 K. 291, 292, 788 P.2d 257 (1990).

406. Aggravated sexual battery (21-3518) as not lesser included crime of rape, (21-3502) examined; holdings to the contrary disapproved. State v. Gibson, 246 K. 298, 300, 787 P.2d 1176 (1990).

407. 60-1507 provides method to request new trial for newly discovered evidence after limitation in 22-3501 has run. State v. Bradley, 246 K. 316, 318, 787 P.2d 706 (1990).

408. Petition for certiorari with U.S. Supreme Court as not extending filing time for motion to modify sentence examined. State v. Miller, 246 K. 445, 448, 790 P.2d 419 (1990).

409. Reversal of aggravated robbery (21-3427) conviction where threat of bodily harm or force not alleged determined. McLain v. State, 14 K.A.2d 329, 330, 789 P.2d 1201 (1990).

410. Attack upon conditions and treatment in confinement, when relief hereby inadequate examined. Shepherd v. Davies, 14 K.A.2d 333, 335, 789 P.2d 1190 (1990).

411. Relief available where petitioner establishes delay in holding parole revocation unreasonable and prejudicial. Parker v. State, 247 K. 214, 216, 795 P.2d 68 (1990).

412. Situations requiring appointment of counsel for postconviction proceedings in addition to statutory requirements examined. State v. Nunn, 247 K. 576, 583, 802 P.2d 547 (1990).

413. When counsel required for hearings on postconviction motions examined. State v. Carmichael, 247 K. 619, 623, 801 P.2d 1315 (1990).

414. Fact that petitioner's codefendants not as severely punished did not show constitutional error; sentence within statutory limits. Edwards v. State of Kan., 751 F.Supp. 197, 199 (1990).

415. New trial motion (22-3501) and 60-1507 motion attacking sentence can proceed simultaneously. State v. Harris, 249 K. 410, 413, 819 P.2d 1169 (1991).

416. Petitioner's motion to withdraw guilty plea on grounds he was not informed of certain collateral consequences denied. Cox v. State, 16 K.A.2d 128, 819 P.2d 1241 (1991).

417. Rules governing abuse of discretion in trial court's refusal to grant a new trial under 22-3501 applicable to appellate review hereunder. Taylor v. State, 251 K. 272, 834 P.2d 1325 (1992).

418. Assistance of counsel examined regarding defendant's right to testify and guarantee against self-incrimination. Taylor v. State, 252 K. 98, 99, 843 P.2d 682 (1992).

419. Issues raised on appeal not moot where defendant paroled from Kansas sentence and returned to Wyoming on detainer. State v. Aleman, 16 K.A.2d 784, 785, 830 P.2d 64 (1992).

420. Failure to follow state procedures for postconviction relief barred inmate from presenting claim to state courts. Jamesion v. Roberts, 788 F.Supp. 507, 508, 509 (1992).

421. Jury instruction containing presumption one intends consequence of voluntary action was new rule not to be applied retroactively. Goodwin v. McQuen, 809 F.Supp. 853, 854 (1992).

422. Ex parte communication between judge and juror held to be harmless error under facts presented. Crease v. State, 252 K. 326, 333, 845 P.2d 27 (1993).

423. Ex parte communication between judge and juror violated defendant's right of presence at all critical stages of trial. State v. Bowser, 252 K. 582, 586, 588, 847 P.2d 1231 (1993).

424. Defendant not deprived of effective counsel when defendant has no constitutional right to counsel to pursue a discretionary appeal. Foy v. State, 17 K.A.2d 775, 776, 844 P.2d 744 (1993).

425. Terms sentencing court and trial court refer to the district court and not to a specific judge. Morrow v. State, 18 K.A.2d 236, 243, 849 P.2d 1004 (1993).

426. Trial court lacked jurisdiction to convict father of rape of 15 year-old daughter where father also convicted of aggravated kidnapping. Carmichael v. State, 18 K.A.2d 435, 438, 856 P.2d 934 (1993).

427. Cited in disciplinary proceeding regarding ineffective assistance by attorney who represented three Korean nationals in kidnapping case. In re Docking, 254 K. 921, 922, 869 P.2d 237 (1994).

428. Whether Supreme Court Rule 183(c)(3) applies only to trial errors affecting constitutional rights examined. Carmichael v. State, 255 K. 10, 11, 14, 872 P.2d 240 (1994).

429. Whether defendant's guilty plea waived challenge to failure of state to charge specific over general offense examined. Labona v. State, 255 K. 66, 67, 69, 872 P.2d 271 (1994).

430. Whether prosecutor's breach of immunity agreement prejudiced defendant's substantial rights requiring resentencing examined. Cabral v. State, 19 K.A.2d 456, 457, 459, 464, 871 P.2d 1285 (1994).

431. Review of procedures governing hearings under section as guidance for hearings on 22-3210 motions. State v. Jackson, 255 K. 455, 458, 461, 463, 874 P.2d 1138 (1994).

432. When appellate courts have jurisdiction to hear appeal of denial of motion to withdraw guilty plea discussed. State v. McDaniel, 255 K. 756, 759, 877 P.2d 961 (1994).

433. Defendant precluded from appealing guilty plea may use section as remedy to collaterally attack. State v. Flowers, 19 K.A.2d 563, 565, 567, 873 P.2d 226 (1994).

434. Whether petitioner defendant may ask in county of confinement to convert sentence examined. Safarik v. Bruce, 20 K.A.2d 61, 66, 883 P.2d 1211 (1994).

435. Whether court erred by considering defendant's prior criminal activity which did not result in conviction in sentencing examined. State v. O'Neal, 256 K. 909, 910, 889 P.2d 128 (1995).

436. Whether mislabeled pro se motions for sentence conversion should be reviewed as petitions for habeas corpus examined. State v. Randall, 257 K. 482, 483, 893 P.2d 196 (1995).

437. Whether guilty plea based on ineffective assistance of counsel may be challenged under section examined. Garret v. State, 20 K.A.2d 513, 514, 889 P.2d 795 (1995).

438. Whether defendant who voluntarily entered into plea agreement was denied effective assistance of counsel examined. Baker v. State, 20 K.A.2d 807, 808, 815, 894 P.2d 221 (1995).

439. Whether inmate's mislabeled challenge to KDOC severity classification should be reviewed as habeas petition examined. State v. Mejia, 20 K.A.2d 890, 892, 894 P.2d 202 (1995).

440. Evidence insufficient to show trial counsel's performance ineffective on claim raised for first time on appeal. State v. Johnson, 258 K. 475, 489, 905 P.2d 94 (1995).

441. No error in trial court's denial of defendant's motion to file out of time appeal. State v. Thomas, 21 K.A.2d 504, 506, 900 P.2d 874 (1995).

442. Right of defendant to postconviction discovery of DNA evidence is in discretion of trial court. Mebane v. State, 21 K.A.2d 533, 534, 902 P.2d 494 (1995).

443. Intervening change in law filed after defendant's appeal finalized cannot be retroactively applied. Alires v. State, 21 K.A.2d 676, 906 P.2d 172 (1995).

444. Defendant may challenge KDOC information used to retroactively convert offense to guidelines offense before sentencing court. Farris v. McKune, 259 K. 181, 188, 194, 911 P.2d 177 (1996).

445. An inmate's time on parole cannot be used to satisfy converted KSGA postrelease supervision period. Faulkner v. State, 22 K.A.2d 80, 81, 911 P.2d 203 (1996).

446. A motion filed under section may be voluntarily dismissed under 60-241(a)(1). Smith v. State, 22 K.A.2d 922, 923, 924 P.2d 662 (1996).

447. Failure of counsel to object to testimony of lawyer who defendant confessed to not prejudicial. Nickel v. Hannigan, 97 F.3d 403, 406 (1996).

448. No abuse of discretion in imposing same sentence as originally imposed; appellant not eligible for retroactive application of sentencing guidelines. State v. Goodwin, 261 K. 961, 933 P.2d 689 (1997).

449. Enhanced sentence under 21-4504 presumed regular and valid absent showing defendant did not have benefit of counsel at prior conviction. State v. Patterson, 262 K. 481, 483, 939 P.2d 909 (1997).

450. Action hereunder seeking conversion under 21-4701 et seq. not appropriate procedure to challenge decisions of parole board or sentencing commission. State v. Bookless, 23 K.A.2d 730, 935 P.2d 231 (1997).

451. Untimely motion to convert under 21-4724(d)(1) improperly dismissed; should have been construed as motion hereunder. State v. Harlin, 23 K.A.2d 800, 936 P.2d 292 (1997).

452. Untimely pro se motion for sentence conversion pursuant to 21-4724(d) should be considered as motion under this section. State v. Standifer, 24 K.A.2d 441, 442, 946 P.2d 637 (1997).

453. Trial court not required to hold evidentiary hearing if petition does not allege substantial issues of fact. Doolin v. State, 24 K.A.2d 500, 501, 947 P.2d 454 (1997).

454. Appellate standard of review for motion filed under section identical to other civil proceedings; evidentiary inferences discussed. Graham v. State, 263 K. 742, 743, 745, 952 P.2d 1266 (1998).

455. Trial court summary dismissal of constitutional challenge to KSGA (21-4701 et seq.) retroactivity provision and denial of appointment of counsel upheld. State v. Jones, 24 K.A.2d 669, 674, 951 P.2d 1302 (1998).

456. An action filed under section is rendered moot by appealing prisoner's death. Kirkland v. State, 25 K.A.2d 359, 360, 965 P.2d 227 (1998).

457. Summary denial of petitioner's second motion for similar relief upheld; exceptional circumstances not proven. Brooks v. State, 25 K.A.2d 466, 467, 966 P.2d 686 (1998).

458. Trial court cannot order habeas corpus petitioner to reimburse attorney fees of court-appointed counsel. Walker v. State, 26 K.A.2d 410, 411, 988 P.2d 283 (1999).

459. Trial error claim involving admission of evidence should be raised on direct appeal, not in habeas corpus motion. Sanders v. State, 26 K.A.2d 826, 827, 995 P.2d 397 (1999).

460. Trial court not required to conduct evidentiary hearing on habeas corpus motion where no factual basis for post conviction relief exists. Gourley v. McKune, 44 F.Supp.2d 1158, 1168 (1999).

461. Habeas petitioner is precluded from introducing evidence of communication breakdown with attorney without first moving for state post conviction relief. Ferguson v. McKune, 55 F.Supp.2d 1189, 1195 (1999).

462. Habeas corpus petition may not be used as a substitute for a second appeal. Zimmer v. McKune, 87 F.Supp.2d 1153, 1154 (2000).

463. Petitioner must be present at full evidentiary hearing when substantial issues of fact exist regarding events in which petitioner participated. Lujan v. State, 270 K. 163, 14 P.3d 424 (2000).

464. Trial court had jurisdiction over criminal prosecution where evidence supported crime of indecent liberties as well as later offense of aggravated indecent liberties; retrial not double jeopardy. Seaton v. State, 27 K.A.2d 104, 998 P.2d 131 (2000).

465. Section provides collateral attack on claim of cruel and unusual punishment. State v. Lewis, 27 K.A.2d 134, 998 P.2d 1141 (2000).

466. Proceeding hereunder is civil action in which doctrine of laches may apply; information challenged for first time will be upheld unless so defective that by any reasonable construction, does not charge an offense for which defendant convicted. Roach v. State, 27 K.A.2d 561, 7 P.3d 319 (2000).

467. Court has jurisdiction to consider habeas corpus appeal of inmate in Missouri jail under detainer to serve subsequent time in Kansas. Maggard v. State, 27 K.A.2d 1060, 11 P.3d 89 (2000).

468. Section is not proper basis for seeking sanctions for malicious or discriminatory prosecution. Miller v. State, 28 K.A.2d 39, 13 P.3d 13 (2000).

469. No error in court summarily denying movant's motion. Johnson v. State, 271 K. 534, 24 P.3d 92 (2001).

470. Petition based on five ineffective allegations of ineffective assistance of counsel denied. Cellier v. State, 28 K.A.2d 508, 18 P.3d 259 (2001).

471. After January 1, 1996, could raise defense based on mental disease or defect if condition could negate mens rea of offense. State v. Bolden, 28 K.A.2d 879, 24 P.3d 163 (2001).

472. 60-1507 motion denied; plea bargain with accomplice to use in this case is not compounding a crime. Edwards v. State, 29 K.A.2d 75, 25 P.3d 142 (2001).

473. Requirement of Apprendi does not apply retroactively to cases on collateral review. Whisler v. State, 272 K. 864, 36 P.3d 290 (2001).

474. Defendant may not claim ineffective appellate counsel on matter not preserved for appeal at trial. Littlejohn v. State, 29 K.A.2d 506, 28 P.3d 448 (2001).

475. Failure to request instruction on lesser included offenses not ineffective counsel. Lumley v. State, 29 K.A.2d 911, 34 P.3d 467 (2001).

476. Court's findings of fact and conclusions of law, as required by Supreme Court Rule 180(j), held adequate (contra, same defendant, another case, see 31 K.A.2d 84). Gilkey v. State, 31 K.A.2d 77, 60 P.3d 351 (2003).

477. Trial court's findings of facts and conclusions of law, as required under Supreme Court Rule 183(j), found to be inadequate (found adequate, same defendant, in separate case, see 31 K.A.2d 77). Gilkey v. State, 31 K.A.2d 84, 60 P.3d 347 (2003).

478. Failure to file motion for arrest of judgment following conviction for arson, which complaint was defective for failure to plead essential elements, is ineffective assistance of counsel. Ferguson v. State, 31 K.A.2d 102, 61 P.3d 108 (2003).

479. Supreme Court Rule 183(j) requires judge hearing motion to make findings of fact and conclusions of law on all issues presented, either on record or by written journal entry. Harris v. State, 31 K.A.2d 237, 62 P.3d 672 (2003).

480. Remanded with instructions to make findings of fact and conclusions of law as required by Supreme Court Rule 183(j). Stewart v. State, 30 K.A.2d 380, 42 P.3d 205 (2002).

481. 60-1507 motion granted because of ineffective trial counsel. Mullins v. State, 30 K.A.2d 711, 46 P.3d 1222 (2002).

482. Remanded to trial court with instructions to enter findings of facts and conclusions of law as required by Supreme Court Rule 183(j). Littrice v. State, 30 K.A.2d 800, 48 P.3d 690 (2002).

483. Trial court improperly dismissed petition as untimely because record does not show date petition was delivered to prison officials. Brull v. State, 31 K.A.2d 584, 69 P.3d 201 (2003).

484. Court's holding in Frazier, 30 K.A.2d 398, will not be applied retroactively to collateral attack on unappealed sentence. Wilson v. State, 31 K.A.2d 728, 71 P.3d 1180 (2003).

485. District court not barred by appellate court mandate from permitting an amended 1507 motion. Edwards v. State, 31 K.A.2d 778, 73 P.3d 772 (2003).

486. Requirements of 60-1502 apply to petitions filed under 60-1501 but not to motions filed under 60-1507. Avriett v. State, 31 K.A.2d 916, 75 P.3d 766 (2003).

487. Ineffective assistance claim not pursued on direct appeal did not constitute grounds for procedural default. Anderson v. Attorney General of State of Kansas, 342 F.3d 1140, 1141 (2003).

488. No constitutional right to counsel in 1507 proceeding; therefore, appellant can't claim ineffective assistance of counsel. McCarty v. State, 32 K.A.2d 402, 83 P.3d 249 (2004).

489. 60-1507 motion to be liberally construed to include request for DNA testing if request complies with provisions of 21-2512. Bruner v. State, 277 K. 603, 88 P.3d 216 (2004).

490. Trial court required to make findings of fact and conclusions of law on all of movant's issues. Gaudina v. State, 278 K. 103, 92 P.3d 574 (2004).

491. Motion to correct sentence filed more than 10 days after sentencing is treated as a motion hereunder, which ordinarily cannot be used as substitute for direct appeal. State v. Mebane, 278 K. 131, 91 P.3d 1175 (2004).

492. Failure of appointed counsel to notify defendant of denial of his motion and right to appeal results in denial of statutory right to counsel. Brown v. State, 278 K. 481, 101 P.3d 1201 (2004).

493. Procedure when acting on motion for new trial is similar to procedure for 60-1507 motion. State v. Holmes, 278 K. 603, 102 P.3d 406 (2004).

494. Criminal history score was correct; trial and appellate counsel not ineffective. Jenkins v. State, 32 K.A.2d 702, 87 P.3d 983 (2004).

495. Doctrine of laches applied to claim of ineffective counsel made 22 years after conviction. Woodberry v. State, 33 K.A.2d 171, 101 P.3d 727 (2004).

496. Decision in McAdam, 277 K. 136, will not be retroactively applied in collateral attack of unappealed sentence. Collins v. State, 33 K.A.2d 460, 103 P.3d 988 (2005).

497. Court not bound by plea agreement; imposition of concurrent sentences affirmed. McGoldrick v. State, 33 K.A.2d 466, 104 P.3d 416 (2005).

498. McAdam, 277 K. 136, will not be applied retroactively but case returned to trial court for determination whether defendant was advised of right to appeal and ever requested appeal be filed. State v. Singleton, 33 K.A.2d 478, 104 P.3d 424 (2005).

499. Failure of appellate defense counsel to foresee change in law in pending case of State v. McAdam, 277 K. 136, and to pursue argument of case was objectively unreasonable and prejudices appellant. Laymon v. State, 280 K. 430, 122 P.3d 326 (2005).

500. In ruling on K.S.A. 60-1507 motion, trial court required by Supreme Court Rule 183(j) to make findings of fact and conclusions of law on all issues presented. Campbell v. State, 34 K.A.2d 8, 114 P.3d 162 (2005).

501. One-year statute of limitation begins to run for preexisting claims on date statute became effective. Hayes v. State, 34 K.A.2d 157, 115 P.3d 162 (2005).

502. Defendant must show exceptional circumstances for not raising State v. Frazier arguments on direct appeal. State v. Swisher, 281 K. 447, 450, 132 P.3d 1274 (2006).

503. Defendant's motion not substitute for second appeal. Drach v. Bruce, 281 K. 1058, 1080, 136 P.3d 390 (2006).

504. Counsel's inexperience by itself does not establish a presumption of ineffective assistance of counsel. Flynn v. State, 281 K. 1154, 1161, 136 P.3d 909 (2006).

505. Court did not err in ruling on defendant's motion without full hearing. State v. Chesbro, 35 K.A.2d 662, 676, 134 P.3d 1 (2006).

506. Defendant entitled to evidentiary hearing regarding trial counsel's failure to investigate exculpatory witness. Swenson v. State, 35 K.A.2d 709, 721, 135 P.3d 157 (2006).

507. Ineffective assistance of counsel claim fails where defendant unilaterally changes theory of defense at end of trial. Alderson v. State, 36 K.A.2d 29, 38, 138 P.3d 330 (2006).

508. District court erred in denying relief, federal court's reversal of conviction and determination of ineffective counsel res judicata. Upchurch v. State, 36 K.A.2d 489, 492, 141 P.3d 1175 (2006).

509. Sentence pronounced from the bench in probation revocation hearing is controlling when trial court made no mention of original longer sentence. Abasolo v. State, 36 K.A.2d 802, 804, 145 P.3d 928 (2006).

510. Prosecutorial misconduct is not properly raised in a collateral proceeding unless it affected constitutional rights and exceptional circumstances excuse the failure to appeal on that issue. Bledsoe v. State, 283 K. 81, 88, 89, 150 P.3d 868 (2007).

511. A defendant may not pursue an action while a direct appeal is pending, but the court does not lose jurisdiction while an appeal is pending from a prior collateral motion. State v. Barnes, 37 K.A.2d 136, 149 P.3d 543 (2007).

512. Absent a withdrawal of a plea agreement, the alleged failure of a court appointed attorney to file a timely appeal is outweighed by a valid written waiver of rights to appeal. State v. Patton, 37 K.A.2d 166, 174, 150 P.3d 328 (2007).

513. One-year limitation does not procedurally bar the bringing of a motion to correct an illegal sentence. State v. Flores, 283 K. 380, 384, 153 P.3d 506 (2007).

514. Motion fails for failure of defendant to overcome procedural hurdles. State v. Harp, 283 K. 740, 745, 156 P.3d 1268 (2007).

515. Court, upon revoking probation, may impose defendant's original sentence or any lesser sentence. Abasolo v. State, 284 K. 299, 303, 305, 160 P.3d 471 (2007).

516. Court does not have jurisdiction under K.S.A. 22-3504 to address constitutional challenges to sentencing. State v. Mitchell, 284 K. 374, 377, 162 P.3d 18 (2007).

517. Allegation of ineffective assistance of counsel, when out-of-time petition for review permissible. Kargus v. State, 284 K. 625, 626, 642, 162 P.3d 818 (2007).

518. Petition for supreme court review filed one day late is ineffective assistance of counsel. Swenson v. State, 284 K. 648, 650, 654, 162 P.3d 808 (2007).

519. Standard of review for denial of a K.S.A. 60-1507 motion discussed and applied. Swenson v. State, 284 K. 657, 162 P.3d 808 (2007).

520. Defendant's rights to effective assistance of counsel in direct appeals and petition for review discussed. Kargus v. State, 284 K. 908, 169 P.3d 307 (2007).

521. Test for ineffective assistance of counsel discussed and applied. Swenson v. State, 284 K. 931, 169 P.3d 298 (2007).

522. Three options of court in K.S.A. 60-1507 discussed in appeals pursuant to K.S.A. 60-2103. Guillary v. State, 285 K. 223, 170 P.3d 403 (2007).

523. Standard for review for summary dismissal of K.S.A. 60-1507 motions is de novo; preliminary and full evidentiary hearings discussed; hearing required under K.S.A. 60-1507 unless case shows conclusively petitioner not entitled to relief. Bellamy v. State, 285 K. 346, 354, 357, 172 P.3d 10 (2007).

524. No abuse of discretion shown in denying defendant's motion. Porter v. State, 37 K.A.2d 220, 224, 152 P.3d 89 (2007).

525. Trial court erred in denying motion, deficient performance of counsel denied inmate direct appeal, prejudice is presumed. King v. State, 37 K.A.2d 449, 453, 154 P.3d 545 (2007).

526. Failure to assert particular allegation of trial counsel's deficient performance not exceptional circumstance permitting relitigation. Rice v. State, 37 K.A.2d 456, 465, 154 P.3d 537 (2007).

527. Denial of motion to file appeal out of time does not bar relitigation of issues in subsequent K.S.A. 60-1507 motion. Fowler v. State, 37 K.A.2d 477, 481, 154 P.3d 550 (2007).

528. Motion denied; cannot be applied retroactively to collaterally attack a favorable plea agreement. Casner v. State, 37 K.A.2d 667, 669, 155 P.3d 1202 (2007).

529. Section discussed regarding exculpatory evidence, timely claims and standard for ineffective assistance of counsel. Ludlow v. State, 37 K.A.2d 676, 677, 678, 681, 682, 683, 684, 686, 692, 157 P.3d 631 (2007).

530. Mentioned; defendant pled to attempted second degree unintentional murder, now a nonexistent crime; test discussed. McPherson v. State, 38 K.A.2d 276, 284, 163 P.3d 1257 (2007).

531. Petitioner's K.S.A. 60-1507 motion denied alleging ineffective assistance of counsel relating to jury trial waiver, DNA testing and jurisdiction. Scott v. Werholtz, 38 K.A.2d 667, 669, 670, 672, 673, 171 P.3d 646 (2007).

532. Time limit for K.S.A. 60-1507 motion is one year from final order of appellate court on direct appeal or termination of appellate jurisdiction. Wilkerson v. State, 38 K.A.2d 732, 733, 734, 172 P.3d 671 (2007).

533. Mentioned; inmate seeking certificate of appealability of federal district court's denial of habeas petition; COA denied. Davis v. McKune, 241 Fed. Appx. 507, 509 (2007).

534. Mentioned; inmate seeking certificate of appealability of federal district dismissal of a habeas petition denied. Williams v. Kansas, 241 Fed. Appx. 510 (2007).

535. Before defense counsel's assistance is determined so defective as to require reversal, defendant must establish performance was deficient. Silvers v. State, 38 K.A.2d 886, 887, 889, 173 P.3d 1167 (2008).

536. When appellate counsel files untimely petition for review, court finds movant denied effective assistance of counsel. Penn v. State, 38 K.A.2d 943-948, 173 P.3d 1172 (2008).

537. Legislature's adoption of one-year time limit for filing motions under K.S.A. 60-1507 put all persons on notice of new provisions. Tolen v. State, 285 K. 672, 673, 675, 676, 176 P.3d 170 (2008).

538. District court abused its discretion in denying a hearing on defendant's newly discovered evidence claims. Moncla v. State, 285 K. 826, 827, 830, 831, 837, 839, 840, 176 P.3d 954 (2008).

539. Cited in case remanded for hearings on motion to withdraw plea and to appeal sentence out of time. State v. Hemphill, 286 K. 583, 592-594, 186 P.3d 777 (2008).

540. Cited; ineffective assistance of counsel claim; supreme court rules defendant not entitled to reversal or new trial. Wilkins v. State, 286 K. 971, 980, 983-985, 990, 190 P.3d 957 (2008).

541. Cited; state did not cross appeal adverse ruling; appellate review precluded. McCracken v. Kohl, 286 K. 1114, 1116, 1120, 191 P.3d 313 (2008).

542. Cited; mandatory imprisonment for sex crime, mitigating circumstances insufficient for downward departure sentence. State v. Ortega-Cadelan, 287 K. 157, 161, 194 P.3d 1195 (2008).

543. Cited; trial court had jurisdiction to correct illegal sentence that favored defendant. State v. McCarley, 287 K. 167, 172, 195 P.3d 230 (2008).

544. Cited; appeal right is statutory; timely filing of notice of appeal is jurisdictional. Barr v. State, 287 K. 190, 191, 192, 196, 196 P.3d 357 (2008).

545. Cited; timely notice of criminal appeals; three Ortiz exceptions discussed and applied. State v. Patton, 287 K. 200, 204, 207, 208, 215, 217, 195 P.3d 753 (2008).

546. Cited; defendant required to prove timely appeal would have been sought had defendant been properly informed of appeal right. State v. Gill, 287 K. 289, 291, 292, 297, 196 P.3d 369 (2008).

547. Cited; motion to correct alleged illegal sentence denied summarily is upheld; issue res judicata. State v. Howard, 287 K. 686, 690, 691, 198 P.3d 146 (2008).

548. Cited; motion to correct alleged illegal sentence denied summarily is upheld; issue res judicata. State v. Conley, 287 K. 696, 698, 197 P.3d 837 (2008).

549. Motion hereunder dismissed; motion time barred by K.S.A. 60-1507(f). Cranford v. State, 39 K.A.2d 12-16, 176 P.3d 972 (2008).

550. State's appeal of K.S.A. 60-1507 action ordering new trial because of ineffective assistance of counsel, standard of review discussed. McHenry v. State, 39 K.A.2d 117-121, 124, 177 P.3d 981 (2008).

551. There is no tolling of K.S.A. 60-1507 statute of limitation; only a one-year grace period for manifest injustice. Clemons v. State, 39 K.A.2d 561, 567, 182 P.3d 730 (2008).

552. If defendant files K.S.A. 60-1507 motion while "in custody", court does not lose jurisdiction upon release if collateral consequences applicable. Rawlins v. State, 39 K.A.2d 666, 668, 670, 672-675, 182 P.3d 1271 (2008).

553. Defendant failed to file K.S.A. 60-1507 action, instead files appeal of order in criminal case; appeal dismissed. Hickson v. State, 39 K.A.2d 678, 681, 182 P.3d 1269 (2008).

554. Motion under K.S.A. 60-1507 held to be untimely, successive and no evidentiary hearing required on ineffective assistance of counsel claim. Toney v. State, 39 K.A.2d 944-949, 187 P.3d 122 (2008).

555. Cited; court on appeal is forbidden from reviewing presumptive sentences; K.S.A. 60-1507 motions may raise constitutional claims. State v. Hawkins, 40 K.A.2d 10, 20, 188 P.3d 965 (2008).

556. Cited; movant's failure to pay docket fee or include cover sheet not barrier to otherwise timely filing of motion. Wilson v. State, 40 K.A.2d 170- 176, 178-181, 192 P.3d 1121 (2008).

557. Cited; defendant's attorney must advise if statutes preclude judge from making concurrent sentence without finding manifest injustice. Wilkinson v. State, 40 K.A.2d 741, 742, 743, 195 P.3d 278 (2008).

558. Cited; prison regulation constitutional that keeps sexually explicit material from being received by inmates. Washington v. Werholtz, 40 K.A.2d 860, 861, 197 P.3d 843 (2008).

559. Cited; federal habeas corpus relief denied in kidnapping case. Loggins v. Cline, 568 F.Supp.2d 1265, 1270 (2008).

560. Defense counsel's action in sodomy and sexual battery held not to be ineffective assistance of counsel. Boyle v. McKune, 544 F.3d 1132, 1136, 1137 (2008).

561. Double homicide convictions for capital murder under K.S.A. 21-3439(a)(6) and for first-degree premeditated murder held improperly duplicitous. Trotter v. State, 288 K. 112, 200 P.3d 1236 (2009).

562. Movant failed to show legal prejudice in ineffective assistance of counsel claim. Robertson v. State, 288 K. 217, 201 P.3d 691 (2009).

563. Principles of ineffective assistance of counsel burden reviewed in K.S.A. 60-1507 motion. Harris v. State, 288 K. 414, 204 P.3d 557 (2009).

564. In criminal trial the performance of trial counsel fell within the wide range of reasonable professional assistance. State v. Gonzales, 289 K. 351, 212 P.3d 215 (2009).

565. District court erroneously excluded evidence of defendant's counsel's legal advice; evidence not hearsay. Boldridge v. State, 289 K. 618, 215 P.3d 585 (2009).

566. Discovery rules of K.S.A. 60-226(b)(6) not applicable in context of K.S.A. 60-1507 proceeding. Moll v. State, 41 K.A.2d 677, 204 P.3d 659 (2009).

567. Under facts of case, movant in K.S.A. 60-1507 entitled to be physically present at evidentiary hearing; telephonic participation inadequate. Fischer v. State, 41 K.A.2d 764, 206 P.3d 13 (2009).

568. No ineffective assistance of counsel found; defendant failed to show he suffered legal prejudice by counsel's conduct. Alford v. State, 42 K.A.2d 392, 212 P.3d 250 (2009).

569. Denial of ineffective assistance of counsel motion; reversed and remanded for evidentiary hearing. LaPointe v. State, 42 K.A.2d 522, 214 P.3d 684 (2009).

570. Movant has statutory right to be present during an evidentiary hearing; district court's refusal to allow movant to be present not invited or harmless. State v. Webber, 42 K.A.2d 823, 218 P.3d 1191 (2009).

571. Case remanded to the district court to consider the merits of the ineffective assistance of counsel claim. Rowland v. State, 289 K. 1076, 219 P.3d 1212 (2009).

572. One-year period to file a motion accrues after a period for direct appeal has expired. Baker v. State, 42 K.A.2d 949, 219 P.3d 827 (2009).

573. Dismissal of 1507 motion proper; district court exceeded its authority by banning any future 1507 motions and similar avenues of relief. Holt v. State, 290 K. 491, 232 P.3d 848 (2010).

574. Amended 1507 motion held to relate back to the original motion under facts of the case. Rice v. State, 43 K.A.2d 428, 225 P.3d 1200 (2010).

575. If defendant's post-sentencing motion can be construed as both a motion to withdraw a plea and a habeas corpus motion, summary denial of the motion is subject to de novo review. State v. Atteberry, 44 K.A.2d 478, 239 P.3d 857 (2010).

576. A trial court does not have authority to grant a second direct appeal. State v. Howard, 44 K.A.2d 508, 238 P.3d 752 (2010).

577. One-year time limitation bars prisoner's claims. State v. Kelly, 291 K. 868, 248 P.3d 1282 (2011).

578. Movant failed to show manifest injustice in application of one-year time limitation. Vontress v. State, 45 K.A.2d 430, 249 P.3d 452 (2011).

579. District court's denial of claimant's second and successive 1507 motion is affirmed; ineffective assistance of counsel claim not properly before the court. Wimbley v. State, 292 K. 796, 257 P.3d 328 (2011).

580. Movant's claim of ineffective assistance of counsel based on untimely notice of appeal discussed. Albright v. State, 292 K. 193, 251 P.3d 52 (2011).

581. A 1507 motion was properly amended with leave of court to add claims of the same time and type as those advanced in the original motion. Thompson v. State, 293 K. 704, 270 P.3d 1089 (2011).

582. One-year period of limitations within to file a motion to withdraw guilty plea after sentencing begins to run for preexisting claims on the date the amended statute became effective. State v. Benavides, 46 K.A.2d 563, 263 P.3d 863 (2011).

583. Court did not err in denying ineffective assistance of counsel motion based on conclusory allegations that failed to establish a reasonable probability that but for counsel's errors, a different result would have occurred. Edgar v. State, 294 K. 828, 283 P.3d 152 (2012).

584. A 1507 motion filed outside the one-year time limitation without asserting manifest injustice is barred. State v. Trotter, 296 K. 898, 295 P.3d 1039 (2013).

585. A motion under K.S.A. 60-260(b)(4) does not provide a procedure to obtain post-conviction relief. State v. Mitchell, 297 K. 118, 298 P.3d 349 (2013).

586. Mislabeled pro se motions for new trial under K.S.A. 22-3501 may be considered as 1507 motions. State v. Holt, 298 K. 469, 313 P.3d 826 (2013).

587. One-year period governing motion began to run from date when time for filing appeal from sentence on remand expired in case where conviction was affirmed on direct appeal but sentence was vacated and remanded for resentencing. Baker v. State, 297 K. 486, 303 P.3d 675 (2013).

588. An action under this section is a separate civil action that is generally governed by the rules of civil procedure, but those rules do not apply if they are displaced by a more specific provision. Vontress v. State, 299 K. 607, 325 P.3d 1114 (2014).

589. When movant satisfies burden of proof warranting an evidentiary hearing, the court is required to grant such hearing unless the motion is second or successive and seeks similar relief. Sola-Morales v. State, 300 K. 875, 335 P.3d 1162 (2014).

590. When movant satisfies burden of proof warranting an evidentiary hearing, the court is required to grant such hearing unless the motion is second or successive and seeks similar relief. Grossman v. State, 300 K. 1058, 337 P.3d 687 (2014).

591. Alleyne rule requiring that any fact increasing a mandatory minimum sentence be submitted to a jury and found beyond a reasonable doubt does not apply retroactively to cases on collateral review. Verge v. State, 50 K.A.2d 591, 598, 335 P.3d 679 (2014).

592. Appellate courts have jurisdiction to determine whether exceptions to section exist. State v. Sellers, 301 K. 540, 545, 344 P.3d 950 (2015).

593. Panel erred in affirming dismissal where district court granted 30 days to file supporting memorandum to prisoner's pro se motion, but later treated as an untimely amendment. Wahl v. State, 301 K. 610, 616, 344 P.3d 385 (2015).

594. A motion to correct an illegal sentence is foreclosed as a mechanism for correcting a procedural competency claim. State v. Ford, 302 K. 455, 458, 353 P.3d 1143 (2015).

595. A criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding due to ineffective assistance of counsel, does not need to first demonstrate actual innocence to pursue a civil legal malpractice claim against criminal defense counsel. Mahaney v. Bd. of Indigents' Def. Servs., 302 K. 625, 652, 355 P.3d 667 (2015).

596. Motion to correct illegal sentence not proper vehicle to challenge trial court's alleged failure to comply with K.S.A. 22-3302. State v. Donaldson, 302 K. 731, 737, 355 P.3d 689 (2015).

597. Defense counsel's questioning of defendant did not constitute deficient performance. Fuller v. State, 303 K. 478, 491, 363 P.3d 373 (2015).

598. Section's limit on successive motions does not unconstitutionally suspend the writ of habeas corpus. Manco v. State, 51 K.A.2d 733, 737, 354 P.3d 551 (2015).

599. Lower court ordered to determine if defendant's failure to file motion alleging ineffective assistance of counsel by the deadline should be extended to prevent a manifest injustice. McIntyre v. State, 305 K. 616, 617, 385 P.3d 930 (2016).

600. When a 6 th amendment ineffective assistance of counsel claim does not receive complete review during a direct appeal, the claim is not barred by res judicata during a subsequent collateral action proceeding. Bogguess v. State, 306 K. 574, 583, 395 P.3d 447 (2017).

601. The legislature's 2016 amendments to statute do not apply retroactively to motions filed before July 1, 2016. White v. State, 308 K. 491, 503, 421 P.3d 718 (2018).

602. A district court is not required to appoint counsel to an indigent movant held pursuant to K.S.A. 60-1507 where no substantial question of law or triable issue of fact was presented, no hearing was conducted and the movant failed to show manifest injustice. State v. Roberts, 310 K. 5, 11, 13, 444 P.3d 982 (2019).

603. A movant failed to establish exceptional circumstances to permit a review of a successive motion because the movant must establish some causal connection between alleged ineffective assistance of counsel and a delay in asserting postconviction claims. Dawson v. State, 310 K. 26, 37-38, 444 P.3d 974 (2019).

604. A movant has the right to be represented by counsel at hearings where the state will be represented by counsel unless the movant waives the right to counsel, but a court's consideration of the state's written response to a K.S.A. 60-1507 motion, standing alone, does not constitute a hearing. Stewart v. State, 310 K. 39, 52-53, 444 P.3d 955 (2019).

605. Where a motion is untimely, the movant has the burden to establish manifest injustice by a preponderance of evidence. Thuko v. State, 310 K. 74, 81, 444 P.3d 927 (2019).

606. A judicial council form that did not mention the one-year time limitation or manifest injustice exception did not deprive a movant of due process. Sherwood v. State, 310 K. 93, 97-98, 444 P.3d 966 (2019).

607. Fact-findings are unnecessary to resolve sovereign citizen claims, which is a question of law and meritless. Requena v. State, 310 K. 105, 110, 444 P.3d 918 (2019).

608. A defendant failed to establish manifest injustice in a capital murder case where the defendant pled guilty to avoid the death penalty. Noyce v. State, 310 K. 394, 447 P.3d 355 (2019).

609. When a movant files a second or successive motion, the correct standard is whether the movant presented exceptional circumstances to justify reaching the merits of the motion. Littlejohn v. State, 310 K. 439, 447 P.3d 375 (2019).

610. Alleged prosecutorial error in an ineffective assistance of counsel claim is analyzed using the reversibility test in effect at the time of trial when both the alleged error occurred and the direct appeals were final before State v. Sherman, 305 K. 88, 378 P.3d 1060 (2016). Brown v. State, 58 K.A.2d 808, 832, 475 P.3d 689 (2020).

611. Mandatory and discretionary life sentences for juvenile defendants are disproportionate and violate the 8 th amendment under Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), unless the sentencing court considers youth and its attendant characteristics, and the hard 50 sentence is the functional equivalent to life without parole; juvenile defendant established exceptional circumstances to justify an untimely and successive filing. Williams v. State, 58 K.A.2d 947, 476 P.3d 805 (2020), rev. granted (Jan. 22, 2021).

612. One-year period for filing a K.S.A. 60-1507 motion to challenge counsel's representation in a prior K.S.A. 60-1507 proceeding begins when the mandate is issued on prior proceeding. Rowell v. State, 60 K.A.2d 235, 241, 490 P.3d 78 (2021).

613. The time to file a motion under K.S.A. 60-1507 begins from the date of the decision denying review, not the date the appellate court issues the mandate. Quinn v. State, 62 Kan. App. 2d 640, 644, 646, 522 P.3d 282 (2022).

614. District court erred when it dismissed K.S.A. 60-1507 motion based on letter of death-sentenced inmate without notifying counsel of record and holding a hearing. Kleypas v. State. 62 Kan. App. 2d 654, 655, 522 P.3d 304.


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