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May 5, 1994


Appeal from the Circuit Court of Lee County. No. 83-CF-50. Honorable Thomas E. Hornsby, Judge, Presiding.

Bowman, Inglis, Quetsch

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Alban Saunders, appeals from the trial court's order dismissing his post-conviction petition. On appeal, defendant claims that, because he mailed the petition on December 30, 1991, the 10-year limitations period in effect before January 1, 1992, applies to his petition (see Ill. Rev. Stat. 1989, ch. 38., par. 122-1 (now codified, as amended, at 725 ILCS 5/122-1 (West 1992))). Defendant also claims that the trial court should have appointed, after the assistant public defender originally appointed to represent him withdrew because of a conflict of interest, new counsel to represent him during the hearing on the motion to dismiss. We reverse and remand.

In 1983, defendant was convicted in the circuit court of Lee County of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1) (now codified, as amended, at 720 ILCS 5/9-1(a)(1) (West 1992))). On direct appeal, this court affirmed his conviction and sentence.(People v. Saunders (1985), 135 Ill. App. 3d 594, 90 Ill. Dec. 378, 482 N.E.2d 85.) Defendant filed, pro se, a petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1991, ch. 38., par. 122-1 et seq. (now codified, as amended, at 725 ILCS 5/122-1 et seq. (West 1992))). The petition was notarized and dated December 30, 1991. Attached to the petition was a notarized document entitled "Proof of Service." This document was also dated December 30, 1991, and in it defendant stated that, on December 30, 1991, he placed the petition in the United States Mail at the Centralia Correctional Center. Defendant also attached a notarized affidavit dated December 30, 1991, in which he states that he timely submitted the petition. The circuit court clerk file stamped the petition on January 9, 1992.

On January 28, 1992, the State moved to dismiss the petition on the ground that the petition was filed more than three years after the date of defendant's conviction. On November 30, 1992, the trial court appointed Davit T. Fritts to represent defendant.

At the December 7, 1992, hearing, the trial court made the following statement:

"The court is in receipt of a post-conviction petition. Upon receipt of same I did appoint Mr. Fritts to represent Mr. Saunders, but he's informed the court that he's not able to represent him because of certain allegations that were made in the petition. I think the proper procedure in this case is * * * that the court can consider the motion to dismiss without appointment of counsel. In the event that the State does not prevail on the motion * * * then the court would appoint counsel for Mr. Saunders."

After hearing arguments, the court concluded that the petition was not timely filed and granted the State's motion. We allowed defendant leave to file a late notice of appeal.

Defendant first argues that the date of mailing, not the file-stamp date, determines when a post-conviction petition is filed. Effective January 1, 1992, section 122-1 of the Act was amended to state that "no proceedings under this Article shall be commenced more than * * * 3 years from the date of conviction * * * unless the petition alleges facts showing that the delay was not due to [the petitioner's] culpable negligence." (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 (now 725 ILCS 5/122-1 (West 1992)).) Previously, the time for filing post-conviction petitions was within 10 years after the date of the conviction. Ill. Rev. Stat. 1989, ch. 38, par. 122-1 (now codified, as amended, at 725 ILCS 5/122-1 (West 1992)).

If the defendant's petition is deemed to have been filed on January 9, 1992, the date the circuit court clerk file stamped it, then the shortened limitations period applies and the trial court properly dismissed the petition. (See People v. Bates (1988), 124 Ill. 2d 81, 86, 124 Ill. Dec. 407, 529 N.E.2d 227 (shortened Post-Conviction Hearing Act limitations period may be applied retroactively to convictions entered prior to its enactment).) However, in light of the "pro-mailing" policy adopted in recent cases, we conclude that the verified date of mailing determines when a post-conviction proceeding has been "commenced" within the meaning of section 122-1.

This "pro-mailing" policy has its origins in contexts other than the filing of post-conviction petitions. The cases adopting this policy have held that certain documents are deemed filed on the day the filing party places them in the mail. See Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 341-42 (notice of appeal); People v. Aldridge (1991), 219 Ill. App. 3d 520, 523, 162 Ill. Dec. 532, 580 N.E.2d 158 (motion to withdraw guilty plea); People v. Easley (1990), 199 Ill. App. 3d 179, 182-83, 145 Ill. Dec. 184, 556 N.E.2d 802 (motion to reduce sentence); People v. Pagel (1990), 197 Ill. App. 3d 305, 307, 143 Ill. Dec. 124, 553 N.E.2d 1110 (date of proof of service, not postmark date, determines when motion to withdraw guilty plea is filed).

In People v. Johnson (1992), 232 Ill. App. 3d 882, 174 Ill. Dec. 79, 598 N.E.2d 276, the court addressed the issue that is now before us. The court in Johnson extended the "date-of-mailing" rule to govern the filing of post-conviction petitions and held that the defendant's petition was filed on December 31, 1991, the day he placed the petition in the prison mail system. (Johnson, 232 Ill. App. 3d at 884.) The court reasoned that "when a party has a deadline for filing a document, and filing by mail is permitted, the time of the mailing should logically control." Johnson, 232 Ill. App. 3d at 884.

The State claims that People v. Floyd (1991), 210 Ill. App. 3d 840, 155 N.E.2d 245, 569 N.E.2d 245, should control our analysis. The issue in Floyd was whether the trial court's dismissal of the defendant's petition as "frivolous or patently without merit" occurred, as the statute requires, within 30 days after the "filing and docketing" of the petition. (See Ill. Rev. Stat. 1991, ch. 38, par. 122-2.1(a)(2) (now 725 ILCS 5/122-2,1(a)(2) (West 1992)).) In dicta, the court acknowledged the pro-mailing policy of Harrisburg-Raleigh Airport Authority and its progeny but concluded that where a petition commences a new action and is not merely a ...

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