Frausto v. State

BENCH, Court of Appeals Judge,

concurring in the result:

As recognized by the main opinion, Utah Code Ann. § 78-35a-107(l) (1996) provides a statute of limitations for post-conviction relief. “A petitioner is entitled to relief only if *852the petition is filed within one year after the cause of action has accrued.” Id. Subsection (3), however, provides for an exception: “If the court finds that the interests of justice require, a court may excuse a petitioner’s failure to file within the time limitations.” Utah Code Ann. § 78-35a-107(3). I believe this statutory scheme requires a trial court to consider the “interests of justice” exception whenever a petition is filed beyond the one-year limitation. Because the court did not even consider the statutory exception, I agree that the case must be remanded. See Provo City Corp. v. State, 795 P.2d 1120, 1125 (Utah 1990) (“We have a duty to construe statutes to avoid constitutional conflicts.”).

If on remand the trial court believes the interests of justice require it, the court must consider the merits of the petition. If, on the other hand, the court concludes that the interests of justice do not require consideration of the merits of the petition, I believe the trial court can properly dismiss the case based on Frausto’s failure to comply with the one-year statute of limitations. I therefore disagree with the main opinion’s holding that “a petitioner’s failure to comply with a statute of limitations may never be a proper ground upon which to dismiss a habeas corpus petition.”