Full Text of SB2737 095th General Assembly
SB2737 95TH GENERAL ASSEMBLY
|
|
|
95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB2737
Introduced 2/15/2008, by Sen. A. J. Wilhelmi SYNOPSIS AS INTRODUCED: |
|
725 ILCS 5/122-1 |
from Ch. 38, par. 122-1 |
|
Amends the Code of Criminal Procedure of 1963. Makes a technical change in a Section concerning filing a petition for post-conviction relief.
|
| |
|
|
A BILL FOR
|
|
|
|
|
SB2737 |
|
LRB095 19896 RLC 46310 b |
|
| 1 |
| AN ACT concerning 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 the penitentiary may | 9 |
| institute a proceeding under this Article if the person asserts | 10 |
| 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
newly | 16 |
| discovered evidence not available to the person at
the time | 17 |
| of the proceeding that resulted in his or her
conviction | 18 |
| that establishes a substantial basis to believe that the | 19 |
| defendant
is actually innocent by clear and convincing | 20 |
| evidence.
| 21 |
| (a-5) A proceeding under paragraph (2) of subsection (a)
| 22 |
| may be commenced within a reasonable period of time after the | 23 |
| person's
conviction
notwithstanding any other provisions of
|
|
|
|
SB2737 |
- 2 - |
LRB095 19896 RLC 46310 b |
|
| 1 |
| this Article. In such a proceeding regarding
actual innocence, | 2 |
| if the court determines the petition is
frivolous or is | 3 |
| patently without merit, it shall dismiss the
petition in a | 4 |
| written order, specifying the findings of fact
and conclusions | 5 |
| of law it made in reaching its decision.
Such order of | 6 |
| dismissal is a final judgment and shall be
served upon the | 7 |
| petitioner by certified mail within 10 days
of its entry.
| 8 |
| (b) The proceeding shall be commenced by filing with the | 9 |
| clerk of the court
in which the conviction took place a | 10 |
| petition (together with a copy thereof)
verified by affidavit. | 11 |
| Petitioner shall also serve another copy upon the
State's | 12 |
| Attorney by any of the methods provided in Rule 7 of the | 13 |
| Supreme
Court. The clerk shall docket the petition for | 14 |
| consideration by the court
pursuant to Section 122-2.1 upon his | 15 |
| or her receipt thereof and bring the same
promptly to the | 16 |
| attention of the court.
| 17 |
| (c) Except as otherwise provided in subsection (a-5), if
| 18 |
| the petitioner is under sentence of death and a petition for | 19 |
| writ of certiorari is filed,
no proceedings under this Article | 20 |
| shall be commenced more than 6 months after
the conclusion of | 21 |
| proceedings in the United States Supreme Court, unless the | 22 |
| petitioner alleges facts showing that the delay
was
not due to | 23 |
| his or her culpable negligence. If a petition for certiorari is | 24 |
| not filed, no proceedings under this Article shall be commenced | 25 |
| more than 6 months from the date for filing a certiorari | 26 |
| petition, unless the petitioner alleges facts showing that the |
|
|
|
SB2737 |
- 3 - |
LRB095 19896 RLC 46310 b |
|
| 1 |
| delay was not due to his or her culpable negligence.
| 2 |
| When a defendant has a sentence other than death, no | 3 |
| proceedings under this
Article shall be commenced more than 6 | 4 |
| months after the conclusion of proceedings in the United States | 5 |
| Supreme Court, unless the petitioner
alleges facts showing that | 6 |
| the delay was not due to his or her culpable
negligence.
If a | 7 |
| petition for certiorari is not filed, no proceedings under this | 8 |
| Article shall be commenced more than 6 months from the date for | 9 |
| filing a certiorari petition, unless the petitioner alleges | 10 |
| facts showing that the delay was not due to his or her culpable | 11 |
| negligence. If a defendant does not file a direct appeal, the | 12 |
| post-conviction petition shall be filed no later than 3 years | 13 |
| from the date of conviction, unless the petitioner alleges | 14 |
| facts showing that the delay was not due to his or her culpable | 15 |
| negligence.
| 16 |
| This limitation does not apply to a petition advancing a | 17 |
| claim of actual
innocence. | 18 |
| (d) A person seeking relief by filing a petition under this | 19 |
| Section must
specify in the petition or its heading that it is | 20 |
| filed under this Section.
A trial court that has received a | 21 |
| petition complaining of a conviction or
sentence that fails to | 22 |
| specify in the petition or its heading that it is
filed under | 23 |
| this Section need not evaluate the petition to determine
| 24 |
| whether it could otherwise have stated some grounds for relief | 25 |
| under
this Article.
| 26 |
| (e) A proceeding under this Article may not be commenced on |
|
|
|
SB2737 |
- 4 - |
LRB095 19896 RLC 46310 b |
|
| 1 |
| behalf of a
defendant who has been sentenced to death without | 2 |
| the written consent of the
defendant, unless the defendant, | 3 |
| because of a mental or physical condition, is
incapable of | 4 |
| asserting his or her own claim.
| 5 |
| (f) Only one petition may be filed by a petitioner under | 6 |
| this Article
without leave of the court.
Leave of court may be | 7 |
| granted only if a petitioner demonstrates
cause for his or her | 8 |
| failure to bring the claim in his or her initial
| 9 |
| post-conviction proceedings and prejudice results from that | 10 |
| failure. For
purposes
of this subsection (f): (1) a prisoner | 11 |
| shows cause by identifying an objective
factor that impeded his | 12 |
| or her ability to raise a specific claim during his or
her | 13 |
| initial post-conviction proceedings; and (2) a prisoner shows | 14 |
| prejudice by
demonstrating that the claim not raised during his | 15 |
| or her initial
post-conviction proceedings so infected the | 16 |
| trial that the resulting conviction
or
sentence violated due | 17 |
| process.
| 18 |
| (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 19 |
| 93-972, eff. 8-20-04.)
|
|