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NJ Appellate Division Allows Late PCR Motion to Proceed


by in Criminal Appeals

State v. G.C., unpublished opinion, App. Div. Docket No. A-4485-07T4 (April 6, 2010) – Denial of PCR petition reversed, case remanded for evidentiary hearing. “We remand for further proceedings because relaxation of the five-year time bar is warranted under these extraordinary and unique facts. See R. 3:22-12(a). The parties assume that the petition was filed thirteen years after the entry of judgment….

While dated August 20, 1993, so as not to deprive defendant of institutional credits as of that day, defendant was resentenced on the second remand on February 13, 1998. The judgment which was ultimately sustained was entered that day. It constituted the judgment of conviction which defendant now attacks. See R. 3:21-5(b).

We affirmed that judgment, and that judgment only, on April 13, 1999, and the petition of January 31, 2000, was filed within five years of the 1998 judgment. Moreover, there was an earlier petition dated December 28, 1998, which defendant endeavored to file even before the proceedings on direct appeal concluded on April 13, 1999….

Under the totality of these circumstances in which defendant sought PCR even before the direct appellate process was complete, and given Dr. Greenfield’s report, [which opined that defendant’s “mental condition” was “excusable neglect” for his failure to file his petition within time] the petition should be considered on the merits, and we remand for further proceedings in the Law Division.”






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