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09/06/89 the People of the State of v. Luis Magdaleno

September 6, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LUIS MAGDALENO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 1104, 188 Ill. App. 3d 384, 135 Ill. Dec. 536 1989.IL.1387

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, Luis Magdaleno, appeals from an order of the circuit court dismissing his petition for post-conviction relief. Defendant raises one issue on appeal: whether he is entitled to a new hearing on the petition because the State wrongly filed a motion to strike on which the trial court relied when it dismissed the petition. We reverse and remand.

After a jury trial, defendant was convicted of three counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 9-1(a)(1)). This court, in an unpublished order, affirmed defendant's conviction and sentence. People v. Magdaleno (1987), 153 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23).

On May 18, 1987, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). On May 26, 1987, the State's Attorney's office filed a motion to strike the petition for post-conviction relief. On the same day, the court held a hearing without appointing counsel for petitioner. The court stated that it read the motion to strike and the Rule 23 order of this court. The court gave reasons addressing the merits of the State's motion to dismiss and dismissed the petition on its merits. The court never entered a written order.

Defendant contends that it was error for the court to consider the motion to strike without first having made a determination of frivolity or appointing counsel for defendant and, therefore, the cause should be remanded for further proceedings under the Act. Section 122--2.1 of the Act 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. . . .

(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." (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1.)

Within 30 days of the court finding that the petition was not frivolous or patently without merit, the State shall then answer or move to dismiss. Ill. Rev. Stat. 1987, ch. 38, par. 122-5.

Defendant argues that the trial court did not comply with the statutory procedure when it reviewed and relied on the State's motion to strike the petition. Failure to comply with the provisions of section 122--2.1 renders the dismissal of a ...


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