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Full Text of HB0219  100th General Assembly

HB0219 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB0219

 

Introduced , by Rep. La Shawn K. Ford

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/122-1  from Ch. 38, par. 122-1

    Amends the Code of Criminal Procedure of 1963. Authorizes persons who are subject to being confined by the State, local, or federal government as a result of a State criminal conviction to seek a post-conviction hearing in the trial court.


LRB100 04141 SLF 14146 b

 

 

A BILL FOR

 

HB0219LRB100 04141 SLF 14146 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended 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 or otherwise
9confined, or subject to being confined by the State, local, or
10federal government as a result of a State criminal conviction,
11may institute a proceeding under this Article if the person
12asserts that:
13        (1) in the proceedings which resulted in his or her
14    conviction there was a substantial denial of his or her
15    rights under the Constitution of the United States or of
16    the State of Illinois or both; or
17        (2) the death penalty was imposed and there is newly
18    discovered evidence not available to the person at the time
19    of the proceeding that resulted in his or her conviction
20    that establishes a substantial basis to believe that the
21    defendant is actually innocent by clear and convincing
22    evidence.
23    (a-5) A proceeding under paragraph (2) of subsection (a)

 

 

HB0219- 2 -LRB100 04141 SLF 14146 b

1may be commenced within a reasonable period of time after the
2person's conviction notwithstanding any other provisions of
3this Article. In such a proceeding regarding actual innocence,
4if the court determines the petition is frivolous or is
5patently without merit, it shall dismiss the petition in a
6written order, specifying the findings of fact and conclusions
7of law it made in reaching its decision. Such order of
8dismissal is a final judgment and shall be served upon the
9petitioner by certified mail within 10 days of its entry.
10    (b) The proceeding shall be commenced by filing with the
11clerk of the court in which the conviction took place a
12petition (together with a copy thereof) verified by affidavit.
13Petitioner shall also serve another copy upon the State's
14Attorney by any of the methods provided in Rule 7 of the
15Supreme Court. The clerk shall docket the petition for
16consideration by the court pursuant to Section 122-2.1 upon his
17or her receipt thereof and bring the same promptly to the
18attention of the court.
19    (c) Except as otherwise provided in subsection (a-5), if
20the petitioner is under sentence of death and a petition for
21writ of certiorari is filed, no proceedings under this Article
22shall be commenced more than 6 months after the conclusion of
23proceedings in the United States Supreme Court, unless the
24petitioner alleges facts showing that the delay was not due to
25his or her culpable negligence. If a petition for certiorari is
26not filed, no proceedings under this Article shall be commenced

 

 

HB0219- 3 -LRB100 04141 SLF 14146 b

1more than 6 months from the date for filing a certiorari
2petition, unless the petitioner alleges facts showing that the
3delay was not due to his or her culpable negligence.
4    When a defendant has a sentence other than death, no
5proceedings under this Article shall be commenced more than 6
6months after the conclusion of proceedings in the United States
7Supreme Court, unless the petitioner alleges facts showing that
8the delay was not due to his or her culpable negligence. If a
9petition for certiorari is not filed, no proceedings under this
10Article shall be commenced more than 6 months from the date for
11filing a certiorari petition, unless the petitioner alleges
12facts showing that the delay was not due to his or her culpable
13negligence. If a defendant does not file a direct appeal, the
14post-conviction petition shall be filed no later than 3 years
15from the date of conviction, unless the petitioner alleges
16facts showing that the delay was not due to his or her culpable
17negligence.
18    This limitation does not apply to a petition advancing a
19claim of actual innocence.
20    (d) A person seeking relief by filing a petition under this
21Section must specify in the petition or its heading that it is
22filed under this Section. A trial court that has received a
23petition complaining of a conviction or sentence that fails to
24specify in the petition or its heading that it is filed under
25this Section need not evaluate the petition to determine
26whether it could otherwise have stated some grounds for relief

 

 

HB0219- 4 -LRB100 04141 SLF 14146 b

1under this Article.
2    (e) A proceeding under this Article may not be commenced on
3behalf of a defendant who has been sentenced to death without
4the written consent of the defendant, unless the defendant,
5because of a mental or physical condition, is incapable of
6asserting his or her own claim.
7    (f) Only one petition may be filed by a petitioner under
8this Article without leave of the court. Leave of court may be
9granted only if a petitioner demonstrates cause for his or her
10failure to bring the claim in his or her initial
11post-conviction proceedings and prejudice results from that
12failure. For purposes of this subsection (f): (1) a prisoner
13shows cause by identifying an objective factor that impeded his
14or her ability to raise a specific claim during his or her
15initial post-conviction proceedings; and (2) a prisoner shows
16prejudice by demonstrating that the claim not raised during his
17or her initial post-conviction proceedings so infected the
18trial that the resulting conviction or sentence violated due
19process.
20(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
2193-972, eff. 8-20-04.)