093_HB3337

                                     LRB093 09644 RLC 09882 b

 1        AN ACT in relation to criminal law.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5. The Code of  Criminal  Procedure  of  1963  is
 5    amended by changing Section 122-1 as follows:

 6        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
 7        Sec. 122-1. Petition in the trial court.
 8        (a)  Any   person  imprisoned  in  the  penitentiary  may
 9    institute a proceeding under this Article if the  person  who
10    asserts that:
11             (1)  in the proceedings which resulted in his or her
12        conviction  there  was a substantial denial of his or her
13        rights under the Constitution of the United States or  of
14        the State of Illinois or both; or
15             (2)  the  death  penalty  was  imposed  and there is
16        newly discovered evidence not available to the person  at
17        the  time  of  the proceeding that resulted in his or her
18        conviction that establishes the person's innocence.
19        (a-5)  A proceeding under paragraph (2) of subsection (a)
20    may be commenced at any time after the  person's   conviction
21    notwithstanding  any  other  provisions  of   may institute a
22    proceeding under this Article. In such a proceeding regarding
23    actual innocence, if the court  determines  the  petition  is
24    frivolous  or is patently without merit, it shall dismiss the
25    petition in a written order, specifying the findings of  fact
26    and  conclusions  of  law  it  made in reaching its decision.
27    Such order of dismissal is a  final  judgment  and  shall  be
28    served  upon  the petitioner by certified mail within 10 days
29    of its entry.
30        (b)  The proceeding shall be commenced by filing with the
31    clerk of the court in  which  the  conviction  took  place  a
 
                            -2-      LRB093 09644 RLC 09882 b
 1    petition   (together   with   a  copy  thereof)  verified  by
 2    affidavit.  Petitioner shall also serve another copy upon the
 3    State's Attorney by any of the methods provided in Rule 7  of
 4    the  Supreme  Court.  The clerk shall docket the petition for
 5    consideration by the court pursuant to Section  122-2.1  upon
 6    his or her receipt thereof and bring the same promptly to the
 7    attention of the court.
 8        (c)  Except as otherwise provided in subsection (a-5), if
 9    the  petitioner  is  under  sentence of death, no proceedings
10    under this Article shall be  commenced  more  than  6  months
11    after  the  issuance  of  the  mandate  by  the Supreme Court
12    following affirmance of the defendant's direct appeal of  the
13    trial  court  verdict.   In  all  other cases, no proceedings
14    under this Article shall be  commenced  more  than  6  months
15    after  the  denial  of a petition for leave  to appeal or the
16    date for filing such a petition if none is filed or more than
17    45 days after the defendant files his or  her  brief  in  the
18    appeal  of the sentence before the Illinois Supreme Court (or
19    more than 45 days after the deadline for the  filing  of  the
20    defendant's brief with the Illinois Supreme Court if no brief
21    is  filed)  or 3 years from the date of conviction, whichever
22    is sooner, unless the petitioner alleges facts  showing  that
23    the delay was not due to his or her culpable negligence.
24        (d)  A  person  seeking relief by filing a petition under
25    this Section must specify in the petition or its heading that
26    it is filed under this Section.    A  trial  court  that  has
27    received  a  petition complaining of a conviction or sentence
28    that fails to specify in the petition or its heading that  it
29    is filed under this Section need not evaluate the petition to
30    determine whether it could otherwise have stated some grounds
31    for relief under this Article.
32        (e)  A proceeding under this Article may not be commenced
33    on  behalf  of  a  defendant  who has been sentenced to death
34    without the written consent  of  the  defendant,  unless  the
 
                            -3-      LRB093 09644 RLC 09882 b
 1    defendant,  because  of  a  mental  or physical condition, is
 2    incapable of asserting his or her own claim.
 3    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
 4    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)