Full Text of HB4070 101st General Assembly
HB4070 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 HB4070 Introduced 1/13/2020, by Rep. La Shawn K. Ford SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/122-1 | from Ch. 38, par. 122-1 |
725 ILCS 5/122-2.1 | from Ch. 38, par. 122-2.1 |
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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.
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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,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended 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 who has been convicted of an offense and | 9 | | sentenced to a term of imprisonment for a felony or misdemeanor | 10 | | and who is serving or has served his or her sentence of | 11 | | imprisonment imprisoned in the penitentiary may institute a | 12 | | proceeding under this Article if the person 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;
| 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; or
| 23 | | (3) (blank). |
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| 1 | | (a-5) A proceeding under paragraph (2) of subsection (a)
| 2 | | may be commenced within a reasonable period of time after the | 3 | | person's
conviction
notwithstanding any other provisions of
| 4 | | this Article. In such a proceeding regarding
actual innocence, | 5 | | if the court determines the petition is
frivolous or is | 6 | | patently without merit, it shall dismiss the
petition in a | 7 | | written order, specifying the findings of fact
and conclusions | 8 | | of law it made in reaching its decision.
Such order of | 9 | | dismissal is a final judgment and shall be
served upon the | 10 | | petitioner by certified mail within 10 days
of its entry.
| 11 | | (b) The proceeding shall be commenced by filing with the | 12 | | clerk of the court
in which the conviction took place a | 13 | | petition (together with a copy thereof)
verified by affidavit. | 14 | | Petitioner shall also serve another copy upon the
State's | 15 | | Attorney by any of the methods provided in Rule 7 of the | 16 | | Supreme
Court. The clerk shall docket the petition for | 17 | | consideration by the court
pursuant to Section 122-2.1 upon his | 18 | | or her receipt thereof and bring the same
promptly to the | 19 | | attention of the court.
| 20 | | (c) Except as otherwise provided in subsection (a-5), if
| 21 | | the petitioner is under sentence of death and a petition for | 22 | | writ of certiorari is filed,
no proceedings under this Article | 23 | | shall be commenced more than 6 months after
the conclusion of | 24 | | proceedings in the United States Supreme Court, unless the | 25 | | petitioner alleges facts showing that the delay
was
not due to | 26 | | his or her culpable negligence. If a petition for certiorari is |
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| 1 | | not filed, no proceedings under this Article shall be commenced | 2 | | more than 6 months from the date for filing a certiorari | 3 | | petition, unless the petitioner alleges facts showing that the | 4 | | delay was not due to his or her culpable negligence.
| 5 | | When a defendant has a sentence other than death, no | 6 | | proceedings under this
Article shall be commenced more than 6 | 7 | | months after the conclusion of proceedings in the United States | 8 | | Supreme Court, unless the petitioner
alleges facts showing that | 9 | | the delay was not due to his or her culpable
negligence.
If a | 10 | | petition for certiorari is not filed, no proceedings under this | 11 | | Article shall be commenced more than 6 months from the date for | 12 | | filing a certiorari petition, unless the petitioner alleges | 13 | | facts showing that the delay was not due to his or her culpable | 14 | | negligence. If a defendant does not file a direct appeal, the | 15 | | post-conviction petition shall be filed no later than 3 years | 16 | | from the date of conviction, unless the petitioner alleges | 17 | | facts showing that the delay was not due to his or her culpable | 18 | | negligence.
| 19 | | This limitation does not apply to a petition advancing a | 20 | | claim of actual
innocence. | 21 | | (d) A person seeking relief by filing a petition under this | 22 | | Section must
specify in the petition or its heading that it is | 23 | | filed under this Section.
A trial court that has received a | 24 | | petition complaining of a conviction or
sentence that fails to | 25 | | specify in the petition or its heading that it is
filed under | 26 | | this Section need not evaluate the petition to determine
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| 1 | | whether it could otherwise have stated some grounds for relief | 2 | | under
this Article.
| 3 | | (e) A proceeding under this Article may not be commenced on | 4 | | behalf of a
defendant who has been sentenced to death without | 5 | | the written consent of the
defendant, unless the defendant, | 6 | | because of a mental or physical condition, is
incapable of | 7 | | asserting his or her own claim.
| 8 | | (f) Only one petition may be filed by a petitioner under | 9 | | this Article
without leave of the court.
Leave of court may be | 10 | | granted only if a petitioner demonstrates
cause for his or her | 11 | | failure to bring the claim in his or her initial
| 12 | | post-conviction proceedings and prejudice results from that | 13 | | failure. For
purposes
of this subsection (f): (1) a prisoner | 14 | | shows cause by identifying an objective
factor that impeded his | 15 | | or her ability to raise a specific claim during his or
her | 16 | | initial post-conviction proceedings; and (2) a prisoner shows | 17 | | prejudice by
demonstrating that the claim not raised during his | 18 | | or her initial
post-conviction proceedings so infected the | 19 | | trial that the resulting conviction
or
sentence violated due | 20 | | process.
| 21 | | (Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
| 22 | | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
| 23 | | Sec. 122-2.1. (a) Within 90 days after the filing and | 24 | | docketing of each
petition, the court shall examine such | 25 | | petition and enter an order thereon
pursuant to this Section.
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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 or | 9 | | has served his or her sentence of imprisonment and the | 10 | | court
determines the petition is frivolous or is patently | 11 | | without merit, it shall
dismiss the petition in a written | 12 | | order, specifying the findings of fact and
conclusions of | 13 | | law it made in reaching its decision. Such order of
| 14 | | dismissal is a final judgment and shall be served upon the | 15 | | petitioner by
certified mail within 10 days of its entry.
| 16 | | (b) If the petition is not dismissed pursuant to this | 17 | | Section, the court
shall order the petition to be docketed for | 18 | | further consideration in accordance
with Sections 122-4 | 19 | | through 122-6.
If the petitioner is under sentence of death, | 20 | | the court shall order the
petition to be docketed for further | 21 | | consideration and hearing within one year
of the filing of the | 22 | | petition. Continuances may be granted as the court deems
| 23 | | appropriate.
| 24 | | (c) In considering a petition pursuant to this Section, the | 25 | | court may
examine the court file of the proceeding in which the | 26 | | petitioner was convicted,
any action taken by an appellate |
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| 1 | | court in such proceeding and any transcripts
of such | 2 | | proceeding.
| 3 | | (Source: P.A. 93-605, eff. 11-19-03.)
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