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03/08/89 the People of the State of v. Gregory Jones


March 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GREGORY JONES, DEFENDANT-APPELLANT

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

535 N.E.2d 1103, 180 Ill. App. 3d 37, 129 Ill. Dec. 338 1989.IL.287

Appeal from the Circuit Court of Lake County; the Hon. Harry D. Hartel, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. DUNN and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, Gregory Jones, appeals from a judgment of the circuit court of Lake County dismissing his post-conviction petition. On appeal, defendant contends that the trial court's order of dismissal is void because it was entered more than 30 days after the petition was filed. For the reasons set forth below, we vacate the judgment and remand the cause for further proceedings.

In July 1977, defendant was found guilty of robbery, rape and murder after a jury trial in the circuit court of Lake County. On September 27, 1977, judgment was entered, and defendant was sentenced on all three counts. This court affirmed defendant's conviction on direct appeal. People v. Jones (1980), 81 Ill. App. 3d 1201 (unpublished Rule 23 order).

On September 9, 1987, defendant filed a pro se post-conviction petition alleging that his conviction should be overturned due to the ineffective assistance of counsel. A second petition was filed on defendant's behalf by retained counsel on September 14, 1987. This petition basically restated the allegations made in the pro se petition. On December 10, 1987, the public defender was appointed to represent defendant, and the case was set for status on December 30. At the status hearing, the court dismissed the petition, finding that it was frivolous and that the issue was waived because it was not raised on direct appeal. This appeal ensued.

The sole issue raised on appeal is whether the trial court's dismissal order is void because it was not entered within 30 days of the filing of the post-conviction petition. Section 122-2.1 of the Code of Criminal Procedure of 1963 states that within 30 days after a post-conviction petition is filed, the court shall enter an order either dismissing the petition as frivolous or setting the matter for consideration. (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1.) In People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, the Illinois Supreme Court ruled that the 30-day rule of section 122-2.1 was mandatory and noncompliance with the rule rendered a later order of dismissal void. Porter, 122 Ill. 2d at 84-87, 521 N.E.2d at 1166-67.

The State argues that even though the trial court's dismissal of the petition took place more than 30 days after the petition was filed, Porter does not apply because the court ordered counsel to be appointed and an amended petition was filed before dismissal occurred. This argument exhibits both a misunderstanding of Porter and a mischaracterization of the facts of the present case.

Only two petitions were filed in the present case, and both petitions were filed more than two months before the trial court appointed the public defender. Porter and section 122-2.1 are very clear in their requirements. Within 30 days after the filing of a petition the court must either enter an order dismissing the petition or order the petition to be set for further consideration. Some order must be entered within that 30-day period. If no order is entered, then Porter requires that any later dismissal must be vacated and the petition must be set for further consideration in accordance with sections 122-4 through 122-6. (Ill. Rev. Stat. 1987, ch. 38, pars. 122-4 through 122-6.) Since no order was entered within the 30-day period, the order of dismissal was improper and must be vacated. Furthermore, the record does not reflect that the court docketed and further considered the matter in accordance with sections 122-4 through 122-6 pursuant to section 122-2.1(b) as it was required to do under Porter. 122 Ill. 2d at 86.

The judgment of the circuit court of Lake County is vacated, and the cause is remanded for further proceedings consistent with this order.

Vacated and remanded.

CASE RESOLUTION

Judgment vacated and cause remanded.

19890308

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