Full Text of HB3452 95th General Assembly
HB3452eng 95TH GENERAL ASSEMBLY
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HB3452 Engrossed |
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LRB095 08532 RLC 28713 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Criminal Procedure of 1963 is | 5 |
| amended by changing Section 122-1 as follows:
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| (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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| Sec. 122-1. Petition in the trial court.
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| (a) Any person imprisoned in the penitentiary may institute | 9 |
| a proceeding under this Article if the person asserts that: | 10 |
| (1) in the
proceedings which resulted in his or her | 11 |
| conviction there was a substantial
denial of his or her | 12 |
| rights under the Constitution of the United States or
of | 13 |
| the State of Illinois or both; or
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| (2) the death penalty was imposed and there is
newly | 15 |
| discovered evidence not available to the person at
the time | 16 |
| of the proceeding that resulted in his or her
conviction | 17 |
| that establishes a substantial basis to believe that the | 18 |
| defendant
is actually innocent by clear and convincing | 19 |
| evidence.
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| (a-5) A proceeding under paragraph (2) of subsection (a)
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| may be commenced within a reasonable period of time after the | 22 |
| person's
conviction
notwithstanding any other provisions of
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| this Article. In such a proceeding regarding
actual innocence, |
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LRB095 08532 RLC 28713 b |
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| if the court determines the petition is
frivolous or is | 2 |
| patently without merit, it shall dismiss the
petition in a | 3 |
| written order, specifying the findings of fact
and conclusions | 4 |
| of law it made in reaching its decision.
Such order of | 5 |
| dismissal is a final judgment and shall be
served upon the | 6 |
| petitioner by certified mail within 10 days
of its entry.
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| (b) The proceeding shall be commenced by filing with the | 8 |
| clerk of the court
in which the conviction took place a | 9 |
| petition (together with a copy thereof)
verified by affidavit. | 10 |
| Petitioner shall also serve another copy upon the
State's | 11 |
| Attorney by any of the methods provided in Rule 7 of the | 12 |
| Supreme
Court. The clerk shall docket the petition for | 13 |
| consideration by the court
pursuant to Section 122-2.1 upon his | 14 |
| or her receipt thereof and bring the same
promptly to the | 15 |
| attention of the court.
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| (c) Except as otherwise provided in subsection (a-5), if
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| the petitioner is under sentence of death and a petition for | 18 |
| writ of certiorari is filed,
no proceedings under this Article | 19 |
| shall be commenced more than 6 months after
the conclusion of | 20 |
| proceedings in the United States Supreme Court, unless the | 21 |
| petitioner alleges facts showing that the delay
was
not due to | 22 |
| his or her culpable negligence. If a petition for certiorari is | 23 |
| not filed, no proceedings under this Article shall be commenced | 24 |
| more than 6 months from the date for filing a certiorari | 25 |
| petition, unless the petitioner alleges facts showing that the | 26 |
| delay was not due to his or her culpable negligence.
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| When a defendant has a sentence other than death, no | 2 |
| proceedings under this
Article shall be commenced more than 6 | 3 |
| months after the conclusion of proceedings in the United States | 4 |
| Supreme Court, unless the petitioner
alleges facts showing that | 5 |
| the delay was not due to his or her culpable
negligence.
If a | 6 |
| petition for certiorari is not filed, no proceedings under this | 7 |
| Article shall be commenced more than 6 months from the date for | 8 |
| filing a certiorari petition, unless the petitioner alleges | 9 |
| facts showing that the delay was not due to his or her culpable | 10 |
| negligence. If a defendant does not file a direct appeal, the | 11 |
| post-conviction petition shall be filed no later than 3 years | 12 |
| from the date of conviction, unless the petitioner alleges | 13 |
| facts showing that the delay was not due to his or her culpable | 14 |
| negligence.
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| This limitation does not apply to a petition advancing a | 16 |
| claim of actual
innocence. | 17 |
| (d) A person seeking relief by filing a petition under this | 18 |
| Section must
specify in the petition or its heading that it is | 19 |
| filed under this Section.
A trial court that has received a | 20 |
| petition complaining of a conviction or
sentence that fails to | 21 |
| specify in the petition or its heading that it is
filed under | 22 |
| this Section need not evaluate the petition to determine
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| whether it could otherwise have stated some grounds for relief | 24 |
| under
this Article.
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| (e) A proceeding under this Article may not be commenced on | 26 |
| behalf of a
defendant who has been sentenced to death without |
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| the written consent of the
defendant, unless the defendant, | 2 |
| because of a mental or physical condition, is
incapable of | 3 |
| asserting his or her own claim.
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| (f) Only one petition may be filed by a petitioner under | 5 |
| this Article
without leave of the court.
A petitioner must seek | 6 |
| leave of the court by filing a motion when he or she sends his | 7 |
| or her proposed subsequent petition. The circuit court must | 8 |
| review the motion within 30 days of its receipt by the Circuit | 9 |
| Court Clerk. If the court grants the motion for leave to file | 10 |
| the petition, the Circuit Court Clerk shall docket it, and the | 11 |
| petition shall proceed under Section 122-2.1 of this Article. | 12 |
| If the court denies the motion, the Circuit Court Clerk shall | 13 |
| notify the petitioner by certified mail within 10 days of the | 14 |
| entry of the order. Leave of court may be granted only if a | 15 |
| petitioner demonstrates
cause for his or her failure to bring | 16 |
| the claim in his or her initial
post-conviction proceedings and | 17 |
| prejudice results from that failure. For
purposes
of this | 18 |
| subsection (f): (1) a prisoner shows cause by identifying an | 19 |
| objective
factor that impeded his or her ability to raise a | 20 |
| specific claim during his or
her initial post-conviction | 21 |
| proceedings; and (2) a prisoner shows prejudice by
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| demonstrating that the claim not raised during his or her | 23 |
| initial
post-conviction proceedings so infected the trial that | 24 |
| the resulting conviction
or
sentence violated due process.
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| (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 26 |
| 93-972, eff. 8-20-04.)
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