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08/23/89 the People of the State of v. Graciella Farias

August 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GRACIELLA FARIAS, DEFENDANT-APPELLANT

IN REMANDING THE CAUSE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS ON A SEPARATE ISSUE, THE COURT IN PEOPLE

v.

NEBER (1968), 41 ILL. 2D 126, 128, 242 N.E.2D 179, STATED:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 886, 187 Ill. App. 3d 879, 135 Ill. Dec. 318 1989.IL.1287

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

On November 15, 1984, defendant, Graciella Farias, pleaded guilty to a felony charge of possession of a controlled substance. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(b).) The trial court sentenced her to 13 months' probation and imposed a fine. The trial court terminated defendant's probation on January 13, 1986. On August 18, 1987, defendant filed a petition for post-conviction relief under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). The State filed a motion to dismiss the petition and the trial court granted the motion. Defendant appeals.

In her petition for post-conviction relief, defendant alleged that she had not knowingly, intelligently or voluntarily entered her guilty plea and that she had not received effective assistance of counsel. She based those contentions on the allegation that her trial counsel had failed to inform her that, as an alien, she could be denied both permanent resident alien and U.S. citizenship status based on a felony narcotics conviction. The State based its motion to dismiss solely on defendant's failure to file the petition during the period of her probation. The State argued that, to qualify for post-conviction relief, a petitioner must be "under sentence," viz., incarcerated or on conditional discharge, probation or parole.

"Any person imprisoned in the penitentiary" who asserts a substantial denial of his State or Federal constitutional rights in the proceeding resulting in his conviction may file a petition for post-conviction relief. (Ill. Rev. Stat. 1987, ch. 38, par. 122-1.) The issue presented in this appeal is thus whether a person who has successfully completed probation is "imprisoned in the penitentiary" for purposes of seeking post-conviction relief. Determination of the issue is controlled by the construction placed on that language by our supreme court.

In People v. Dale (1950), 406 Ill. 238, 92 N.E.2d 761, the supreme court rejected a challenge to the constitutionality of the Act. The court reasoned that the legislature intended to distinguish between convictions for minor offenses and for serious crimes "and to make the remedy available only to persons actually being deprived of their liberty and not to persons who had served their sentences and who might wish to purge their records of past convictions." The court also concluded that "[t]he words 'persons imprisoned in the penitentiary' were no doubt intended to describe persons convicted of serious crimes and imprisoned at the time of their invocation of the [Act]." Dale, 406 Ill. at 246-47.

The language "imprisoned in the penitentiary" was thus interpreted narrowly in Dale as describing only those persons actually deprived of their liberty by imprisonment. Subsequently, and notwithstanding the language in Dale to the contrary, this interpretation was broadened in People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634 (Davis I).

In Davis I, the defendant filed a petition for post-conviction relief but the cause was not heard until almost two years later. "By that time Davis was no longer imprisoned in the penitentiary." (Davis, 39 Ill. 2d at 327.) Relying on the express wording of section 122 -- 1 and Dale, the State argued that the defendant's petition should be dismissed because he was not incarcerated at the time the cause was heard. The court noted that some jurisdictions made post-conviction relief available to persons who had fully served their sentences while others restricted it to those actually imprisoned at the time of the hearing. The court then rejected the State's argument by stating:

"As there are obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction, we see no reason to so narrowly construe this remedial statute as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends." Davis, 39 Ill. 2d at 329.

The supreme court adhered to the Davis I court's broadened interpretation of the Act in three later cases.

"That a petitioner may have completed . . . his sentence and may be no longer incarcerated . . . will not render remandment unnecessary. We have observed that because of the stigma and disabilities which attend conviction of a crime we will not in every case deny a post-conviction remedy simply because the post-conviction proceedings had not been ...


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