Full Text of HB1587 098th General Assembly
HB1587 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB1587 Introduced , by Rep. La Shawn K. Ford SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/122-1 | from Ch. 38, par. 122-1 |
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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.
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| | A BILL FOR |
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| | | HB1587 | | LRB098 06369 RLC 36411 b |
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| 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 penitentiary or otherwise | 9 | | confined, or subject to being confined by the State, local, or | 10 | | federal government as a result of a State criminal conviction, | 11 | | may institute a proceeding under this Article if the person | 12 | | asserts 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)
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| 1 | | may be commenced within a reasonable period of time after the | 2 | | person's
conviction
notwithstanding any other provisions of
| 3 | | this Article. In such a proceeding regarding
actual innocence, | 4 | | if the court determines the petition is
frivolous or is | 5 | | patently without merit, it shall dismiss the
petition in a | 6 | | written order, specifying the findings of fact
and conclusions | 7 | | of law it made in reaching its decision.
Such order of | 8 | | dismissal is a final judgment and shall be
served upon the | 9 | | petitioner by certified mail within 10 days
of its entry.
| 10 | | (b) The proceeding shall be commenced by filing with the | 11 | | clerk of the court
in which the conviction took place a | 12 | | petition (together with a copy thereof)
verified by affidavit. | 13 | | Petitioner shall also serve another copy upon the
State's | 14 | | Attorney by any of the methods provided in Rule 7 of the | 15 | | Supreme
Court. The clerk shall docket the petition for | 16 | | consideration by the court
pursuant to Section 122-2.1 upon his | 17 | | or her receipt thereof and bring the same
promptly to the | 18 | | attention of the court.
| 19 | | (c) Except as otherwise provided in subsection (a-5), if
| 20 | | the petitioner is under sentence of death and a petition for | 21 | | writ of certiorari is filed,
no proceedings under this Article | 22 | | shall be commenced more than 6 months after
the conclusion of | 23 | | proceedings in the United States Supreme Court, unless the | 24 | | petitioner alleges facts showing that the delay
was
not due to | 25 | | his or her culpable negligence. If a petition for certiorari is | 26 | | not filed, no proceedings under this Article shall be commenced |
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| 1 | | more than 6 months from the date for filing a certiorari | 2 | | petition, unless the petitioner alleges facts showing that the | 3 | | delay was not due to his or her culpable negligence.
| 4 | | When a defendant has a sentence other than death, no | 5 | | proceedings under this
Article shall be commenced more than 6 | 6 | | months after the conclusion of proceedings in the United States | 7 | | Supreme Court, unless the petitioner
alleges facts showing that | 8 | | the delay was not due to his or her culpable
negligence.
If a | 9 | | petition for certiorari is not filed, no proceedings under this | 10 | | Article shall be commenced more than 6 months from the date for | 11 | | filing a certiorari petition, unless the petitioner alleges | 12 | | facts showing that the delay was not due to his or her culpable | 13 | | negligence. If a defendant does not file a direct appeal, the | 14 | | post-conviction petition shall be filed no later than 3 years | 15 | | from the date of conviction, unless the petitioner alleges | 16 | | facts showing that the delay was not due to his or her culpable | 17 | | negligence.
| 18 | | This limitation does not apply to a petition advancing a | 19 | | claim of actual
innocence. | 20 | | (d) A person seeking relief by filing a petition under this | 21 | | Section must
specify in the petition or its heading that it is | 22 | | filed under this Section.
A trial court that has received a | 23 | | petition complaining of a conviction or
sentence that fails to | 24 | | specify in the petition or its heading that it is
filed under | 25 | | this Section need not evaluate the petition to determine
| 26 | | whether it could otherwise have stated some grounds for relief |
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| 1 | | under
this Article.
| 2 | | (e) A proceeding under this Article may not be commenced on | 3 | | behalf of a
defendant who has been sentenced to death without | 4 | | the written consent of the
defendant, unless the defendant, | 5 | | because of a mental or physical condition, is
incapable of | 6 | | asserting his or her own claim.
| 7 | | (f) Only one petition may be filed by a petitioner under | 8 | | this Article
without leave of the court.
Leave of court may be | 9 | | granted only if a petitioner demonstrates
cause for his or her | 10 | | failure to bring the claim in his or her initial
| 11 | | post-conviction proceedings and prejudice results from that | 12 | | failure. For
purposes
of this subsection (f): (1) a prisoner | 13 | | shows cause by identifying an objective
factor that impeded his | 14 | | or her ability to raise a specific claim during his or
her | 15 | | initial post-conviction proceedings; and (2) a prisoner shows | 16 | | prejudice by
demonstrating that the claim not raised during his | 17 | | or her initial
post-conviction proceedings so infected the | 18 | | trial that the resulting conviction
or
sentence violated due | 19 | | process.
| 20 | | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 21 | | 93-972, eff. 8-20-04.)
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