Illinois General Assembly - Full Text of HB2961
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Full Text of HB2961  98th General Assembly

HB2961 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2961

 

Introduced , by Rep. Scott Drury

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/122-1  from Ch. 38, par. 122-1
725 ILCS 5/122-2.1  from Ch. 38, par. 122-2.1

    Amends the Code of Criminal Procedure of 1963. Allows any defendant convicted of a criminal offense (rather than only those imprisoned on a felony offense) to file a post conviction petition challenging his or her conviction on the grounds there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois. Allows any defendant convicted of a criminal offense (rather than only those under sentence of death) to file a post conviction petition on the basis of newly discovered evidence (rather than newly discovered evidence not available at the time of the proceeding in which he or she was convicted) that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence. Allows a post conviction petition to be commenced on behalf of any defendant (rather than only a defendant sentenced to death), without the written consent of the defendant, if the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim. Makes conforming changes in the statute on court dismissals of post conviction petitions.


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A BILL FOR

 

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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 Sections 122-1 and 122-2.1 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 convicted of an offense imprisoned in the
9penitentiary may institute a proceeding under this Article if
10the person 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 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)
22may be commenced within a reasonable period of time after the
23person's conviction notwithstanding any other provisions of

 

 

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

 

 

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

 

 

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1    (e) A proceeding under this Article may not be commenced on
2behalf of a defendant who has been sentenced to death without
3the written consent of the defendant, unless the defendant,
4because of a mental or physical condition, is incapable of
5asserting his or her own claim.
6    (f) Only one petition may be filed by a petitioner under
7this Article without leave of the court. Leave of court may be
8granted only if a petitioner demonstrates cause for his or her
9failure to bring the claim in his or her initial
10post-conviction proceedings and prejudice results from that
11failure. For purposes of this subsection (f): (1) a petitioner
12prisoner shows cause by identifying an objective factor that
13impeded his or her ability to raise a specific claim during his
14or her initial post-conviction proceedings; and (2) a
15petitioner prisoner shows prejudice by demonstrating that the
16claim not raised during his or her initial post-conviction
17proceedings so infected the trial that the resulting conviction
18or sentence violated due process.
19(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
2093-972, eff. 8-20-04.)
 
21    (725 ILCS 5/122-2.1)  (from Ch. 38, par. 122-2.1)
22    Sec. 122-2.1. (a) Within 90 days after the filing and
23docketing of each petition, the court shall examine the such
24petition and enter an order thereon under pursuant to this
25Section.

 

 

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1        (1) If the petitioner is under sentence of death and is
2    without counsel and alleges that he is without means to
3    procure counsel, he shall state whether or not he wishes
4    counsel to be appointed to represent him. If appointment of
5    counsel is so requested, the court shall appoint counsel if
6    satisfied that the petitioner has no means to procure
7    counsel.
8        (2) If the petitioner is sentenced to imprisonment and
9    the court determines the petition is frivolous or is
10    patently without merit, it shall dismiss the petition in a
11    written order, specifying the findings of fact and
12    conclusions of law it made in reaching its decision. This
13    Such order of dismissal is a final judgment and shall be
14    served upon the petitioner by certified mail within 10 days
15    of its entry.
16    (b) If the petition is not dismissed under pursuant to this
17Section, the court shall order the petition to be docketed for
18further consideration in accordance with Sections 122-4
19through 122-6. If the petitioner is under sentence of death,
20the court shall order the petition to be docketed for further
21consideration and hearing within one year of the filing of the
22petition. Continuances may be granted as the court deems
23appropriate.
24    (c) In considering a petition under pursuant to this
25Section, the court may examine the court file of the proceeding
26in which the petitioner was convicted, any action taken by an

 

 

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1appellate court in that such proceeding and any transcripts of
2that such proceeding.
3(Source: P.A. 93-605, eff. 11-19-03.)