¶1concurring.
¶2[¶ 21] I concur in the majority’s opinion in this case. I write separately regarding part III of that opinion because I fear it may be read too broadly by some prosecutors and courts.
¶3[¶22] As I read it, part III of this opinion permits the State to use an unsupported motion for summary disposition to shift the pre-hearing evidentiary burden to the post-conviction applicant only in those cases in which the State would otherwise be required to prove the absence of any evidence supporting the applicant’s claims and allegations. This does not mean that in every post-conviction case the State can require the applicant to prove up his case prior to any hearing merely by moving for summary disposition and asserting there is no evidence to support the applicant’s claims. It applies only in those cases in which the State would be required to prove a negative — the absence of any supporting evidence in the record — in order to meet its initial burden as movant of showing there are no contested issues of fact. In all other cases, that initial burden must still be met by the movant before the burden can be shifted to the applicant to produce evidence prior to hearing to support his claims. With that understanding of part III, I concur in the majority opinion.