Section 99-39-11 - Judicial examination of original motion; dismissal; filing answer; court ordered testing of biological evidence(1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.(3) If the motion is not dismissed under subsection (2) of this section, the judge shall order the state to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate and, in cases in which the petitioner's claim rests on the results of DNA testing of biological evidence, order the testing of the biological evidence.(4) To facilitate DNA testing of biological evidence, if granted under subsection (3) and if the interests of justice require, the judge may order: (a) The state to locate and provide the petitioner with any document, note, log or report relating to items of physical evidence collected in connection with the case, or to otherwise assist the petitioner in locating items of biological evidence that the state contends have been lost or destroyed;(b) The state to take reasonable measures to locate biological evidence that may be in its custody and to prepare an itemized inventory of such evidence;(c) The state to assist the petitioner in locating evidence that may be in the custody of a public or private hospital, public or private laboratory or other facility;(d) Both parties to reveal whether any DNA or other biological evidence testing was previously conducted without knowledge of the other party; and(e) Both parties to produce laboratory reports prepared in connection with DNA testing, as well as the underlying data and the laboratory notes, if evidence had previously been subjected to DNA testing.(5) If the court orders DNA testing of biological evidence under subsection (3) and evidence for such testing is located in accordance with subsection (4), such testing shall be conducted by a facility mutually agreed upon by the petitioner and the state and approved by the court, or, if the parties cannot agree, the court shall designate the testing facility and provide parties with a reasonable opportunity to be heard on the choice of laboratory issue. The court shall impose reasonable conditions on the testing to protect the parties' interests in the integrity of the evidence and the testing process.(6) If a state or county forensics laboratory performs DNA testing of biological evidence under this article, the state shall bear the costs of such testing upon a finding of the petitioner's indigence.(7) If testing is performed at a private laboratory, the court may require either the petitioner or the state to pay for the testing, as the interests of justice require.(8) If the state or county forensics laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory that has such capabilities.(9) The court, in its discretion, may make such other orders as may be appropriate in connection with a granting of testing under subsection (3). These include, but are not limited to, designating: (a) The type of DNA analysis to be used;(b) The testing procedures to be followed;(c) The preservation of some portion of the sample for testing replication;(d) Additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis;(e) The collection and DNA testing of elimination samples from third parties; or(f) Any combination of these.(10) The court may order additional testing, paid for in accordance with subsections (6) through (8), upon a showing by the petitioner that the comparison of a DNA profile derived from the biological evidence at the scene of the crime for which he was convicted could, when compared to the DNA profiles in the SDIS or CODIS database systems, provide evidence that raises a reasonable probability that the trier of fact would have come to a different outcome by virtue of that comparison demonstrating the possible guilt of a third party or parties.(11) This section shall not be applicable where an application for leave to proceed is granted by the Supreme Court under Section 99-39-27.(12) Proceedings under this section shall be subject to the provisions of Section 99-19-42.Laws, 1984, ch. 378, § 6; Laws, 1995, ch. 566, § 4; Laws, 2009, ch. 339, § 5, eff. 3/16/2009.Amended by Laws, 2015, ch. 452, SB 2159, 19, eff. 7/1/2015.