Bill Text: IL HB2745 | 2021-2022 | 102nd General Assembly | Introduced
Bill Title: Amends the Code of Criminal Procedure of 1963. Provides that a person who has been convicted of an offense and sentenced to a term of imprisonment for a felony or misdemeanor and who is serving or has served his or her sentence of imprisonment (rather than imprisoned in the penitentiary) may institute a proceeding under the Post-Conviction Hearing Article of the Code.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-03-27 - Rule 19(a) / Re-referred to Rules Committee [HB2745 Detail]
Download: Illinois-2021-HB2745-Introduced.html
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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Criminal Procedure of 1963 is | |||||||||||||||||||||
5 | amended by changing Sections 122-1 and 122-2.1 as follows:
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6 | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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7 | Sec. 122-1. Petition in the trial court.
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8 | (a) Any person who has been convicted of an offense and | |||||||||||||||||||||
9 | sentenced to a term of imprisonment for a felony or | |||||||||||||||||||||
10 | misdemeanor and who is serving or has served his or her | |||||||||||||||||||||
11 | sentence of imprisonment imprisoned in the penitentiary may | |||||||||||||||||||||
12 | institute a proceeding under this Article if the person | |||||||||||||||||||||
13 | asserts that: | |||||||||||||||||||||
14 | (1) in the
proceedings which resulted in his or her | |||||||||||||||||||||
15 | conviction there was a substantial
denial of his or her | |||||||||||||||||||||
16 | rights under the Constitution of the United States or
of | |||||||||||||||||||||
17 | the State of Illinois or both;
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18 | (2) the death penalty was imposed and there is
newly | |||||||||||||||||||||
19 | discovered evidence not available to the person at
the | |||||||||||||||||||||
20 | time of the proceeding that resulted in his or her
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21 | conviction that establishes a substantial basis to believe | |||||||||||||||||||||
22 | that the defendant
is actually innocent by clear and | |||||||||||||||||||||
23 | convincing evidence; or
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1 | (3) (blank). | ||||||
2 | (a-5) A proceeding under paragraph (2) of subsection (a)
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3 | may be commenced within a reasonable period of time after the | ||||||
4 | person's
conviction
notwithstanding any other provisions of
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5 | this Article. In such a proceeding regarding
actual innocence, | ||||||
6 | if the court determines the petition is
frivolous or is | ||||||
7 | patently without merit, it shall dismiss the
petition in a | ||||||
8 | written order, specifying the findings of fact
and conclusions | ||||||
9 | of law it made in reaching its decision.
Such order of | ||||||
10 | dismissal is a final judgment and shall be
served upon the | ||||||
11 | petitioner by certified mail within 10 days
of its entry.
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12 | (b) The proceeding shall be commenced by filing with the | ||||||
13 | clerk of the court
in which the conviction took place a | ||||||
14 | petition (together with a copy thereof)
verified by affidavit. | ||||||
15 | Petitioner shall also serve another copy upon the
State's | ||||||
16 | Attorney by any of the methods provided in Rule 7 of the | ||||||
17 | Supreme
Court. The clerk shall docket the petition for | ||||||
18 | consideration by the court
pursuant to Section 122-2.1 upon | ||||||
19 | his or her receipt thereof and bring the same
promptly to the | ||||||
20 | attention of the court.
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21 | (c) Except as otherwise provided in subsection (a-5), if
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22 | the petitioner is under sentence of death and a petition for | ||||||
23 | writ of certiorari is filed,
no proceedings under this Article | ||||||
24 | shall be commenced more than 6 months after
the conclusion of | ||||||
25 | proceedings in the United States Supreme Court, unless the | ||||||
26 | petitioner alleges facts showing that the delay
was
not due to |
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1 | his or her culpable negligence. If a petition for certiorari | ||||||
2 | is not filed, no proceedings under this Article shall be | ||||||
3 | commenced more than 6 months from the date for filing a | ||||||
4 | certiorari petition, unless the petitioner alleges facts | ||||||
5 | showing that the delay was not due to his or her culpable | ||||||
6 | negligence.
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7 | When a defendant has a sentence other than death, no | ||||||
8 | proceedings under this
Article shall be commenced more than 6 | ||||||
9 | months after the conclusion of proceedings in the United | ||||||
10 | States Supreme Court, unless the petitioner
alleges facts | ||||||
11 | showing that the delay was not due to his or her culpable
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12 | negligence.
If a petition for certiorari is not filed, no | ||||||
13 | proceedings under this Article shall be commenced more than 6 | ||||||
14 | months from the date for filing a certiorari petition, unless | ||||||
15 | the petitioner alleges facts showing that the delay was not | ||||||
16 | due to his or her culpable negligence. If a defendant does not | ||||||
17 | file a direct appeal, the post-conviction petition shall be | ||||||
18 | filed no later than 3 years from the date of conviction, unless | ||||||
19 | the petitioner alleges facts showing that the delay was not | ||||||
20 | due to his or her culpable negligence.
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21 | This limitation does not apply to a petition advancing a | ||||||
22 | claim of actual
innocence. | ||||||
23 | (d) A person seeking relief by filing a petition under | ||||||
24 | this Section must
specify in the petition or its heading that | ||||||
25 | it is filed under this Section.
A trial court that has received | ||||||
26 | a petition complaining of a conviction or
sentence that fails |
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1 | to specify in the petition or its heading that it is
filed | ||||||
2 | under this Section need not evaluate the petition to determine
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3 | whether it could otherwise have stated some grounds for relief | ||||||
4 | under
this Article.
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5 | (e) A proceeding under this Article may not be commenced | ||||||
6 | on behalf of a
defendant who has been sentenced to death | ||||||
7 | without the written consent of the
defendant, unless the | ||||||
8 | defendant, because of a mental or physical condition, is
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9 | incapable of asserting his or her own claim.
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10 | (f) Only one petition may be filed by a petitioner under | ||||||
11 | this Article
without leave of the court.
Leave of court may be | ||||||
12 | granted only if a petitioner demonstrates
cause for his or her | ||||||
13 | failure to bring the claim in his or her initial
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14 | post-conviction proceedings and prejudice results from that | ||||||
15 | failure. For
purposes
of this subsection (f): (1) a prisoner | ||||||
16 | shows cause by identifying an objective
factor that impeded | ||||||
17 | his or her ability to raise a specific claim during his or
her | ||||||
18 | initial post-conviction proceedings; and (2) a prisoner shows | ||||||
19 | prejudice by
demonstrating that the claim not raised during | ||||||
20 | his or her initial
post-conviction proceedings so infected the | ||||||
21 | trial that the resulting conviction
or
sentence violated due | ||||||
22 | process.
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23 | (Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
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24 | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
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25 | Sec. 122-2.1. (a) Within 90 days after the filing and |
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1 | docketing of each
petition, the court shall examine such | ||||||
2 | petition and enter an order thereon
pursuant to this Section.
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3 | (1) If the petitioner is under sentence of death and | ||||||
4 | is without
counsel and alleges that he is without means to | ||||||
5 | procure counsel, he shall
state whether or not he wishes | ||||||
6 | counsel to be appointed to represent him.
If appointment | ||||||
7 | of counsel is so requested, the court shall appoint | ||||||
8 | counsel
if satisfied that the petitioner has no means to | ||||||
9 | procure counsel.
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10 | (2) If the petitioner is sentenced to imprisonment or | ||||||
11 | has served his or her sentence of imprisonment and the | ||||||
12 | court
determines the petition is frivolous or is patently | ||||||
13 | without merit, it shall
dismiss the petition in a written | ||||||
14 | order, specifying the findings of fact and
conclusions of | ||||||
15 | law it made in reaching its decision. Such order of
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16 | dismissal is a final judgment and shall be served upon the | ||||||
17 | petitioner by
certified mail within 10 days of its entry.
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18 | (b) If the petition is not dismissed pursuant to this | ||||||
19 | Section, the court
shall order the petition to be docketed for | ||||||
20 | further consideration in accordance
with Sections 122-4 | ||||||
21 | through 122-6.
If the petitioner is under sentence of death, | ||||||
22 | the court shall order the
petition to be docketed for further | ||||||
23 | consideration and hearing within one year
of the filing of the | ||||||
24 | petition. Continuances may be granted as the court deems
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25 | appropriate.
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26 | (c) In considering a petition pursuant to this Section, |
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1 | the court may
examine the court file of the proceeding in which | ||||||
2 | the petitioner was convicted,
any action taken by an appellate | ||||||
3 | court in such proceeding and any transcripts
of such | ||||||
4 | proceeding.
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5 | (Source: P.A. 93-605, eff. 11-19-03.)
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