Appeal from the Circuit Court of Menard County; the Hon.
Robert L. Welch, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 7, 1985.
Defendant appeals from an order of the circuit court of Menard County which dismissed his post-conviction petition without an evidentiary hearing.
Defendant entered a plea of guilty to nine counts of residential burglary and one count of possession of burglary tools before Judge Lipe in the circuit court of Menard County. After denial of a motion to withdraw the plea, he was sentenced to 15 years' imprisonment on each count of residential burglary and one year's imprisonment for possession of burglary tools, all sentences to run concurrently. On direct appeal, the plea and sentences were affirmed. People v. Ramsey (1985), 135 Ill. App.3d 1159 (Rule 23 order).
While the direct appeal was pending in this court, notice of appeal having been filed June 21, 1984, defendant filed pro se a petition for post-conviction relief (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-1) on December 18, 1984. The petition was accompanied by motions for the appointment of counsel and for leave to proceed in forma pauperis. On the following day, December 19, 1984, Judge Lipe allowed the motions by separate written orders. As will be explained below, we find that these orders were erroneously entered.
On December 21, 1984, the chief judge of the circuit entered an order in accordance with section 122-8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-8) (Code) assigning the cause to Judge Welch. Next, on December 28, 1984, the State's Attorney of Menard County filed a motion to dismiss the petition. As will also be explained, we find that this motion was erroneously filed.
Finally, on January 17, 1985, Judge Welch entered two orders: (1) finding that he must still proceed under section 122-2.1 of the Code (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-2.1) notwithstanding the appointment of counsel by Judge Lipe; and (2) dismissing the petition under the same section as being patently without merit.
Our disposition of this case requires a brief resume of the substantial overhaul made in post-conviction proceedings by Public Act No. 83-942. Under the prior procedure (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.), upon the filing of a petition with the circuit clerk, the cause was routinely docketed and counsel appointed if requested by petitioner; thereafter, the State was required either to move to dismiss or answer; if a motion to dismiss were denied, the State was then required to answer and the cause proceeded to hearing.
Public Act 83-942 added a significant section to the Code; viz., section 122-2.1 (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-2.1), which provides:
"(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6.
(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding."
Other sections were amended to conform to the new procedure. Section 122-1 was amended to provide: "The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his receipt thereof and bring the same promptly to the attention of the court." Unlike the prior procedure where the clerk docketed the petition generally, he now dockets for the limited purpose set forth above, and does not docket generally unless so ordered by the court pursuant to section 122-2.1(b).
Section 122-4 (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-4) was amended to provide that if the petition were not dismissed under section 122-2.1, then the court shall appoint counsel if requested and may allow the petitioner to proceed in forma pauperis. Section 122-5 (Ill. Rev. Stat. 1983, ch. 38, par. 122-5) was amended to provide that if the petition were docketed under section 122-2.1(b), then the State should either move to dismiss or answer.
Another significant section was added by Public Act 83-942, viz., section 122-8 (Ill. Rev. Stat. 1983, ch. 38, ...