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People v. Vasquez

September 29, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
V.
HELDER C. VASQUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 93--CF--534 Honorable George Bridges, Judge, Presiding.

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Helder C. Vasquez, appeals the order dismissing his petition for post-conviction relief pursuant to section 122--2.1(a)(2) of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--2.1(a)(2) (West 1998)). Defendant contends that his petition was improperly dismissed and should have been considered pursuant to sections 122--4 through 122--6 of the Act (725 ILCS 5/122--4 through 122--6 (West 1998)) because the trial court failed to dismiss his petition within 90 days of filing. Defendant also contends that, if this cause is remanded to the trial court, Judge Bridges should be disqualified from further participation. We reverse and remand.

On July 28, 1993, a jury found defendant guilty of first degree murder (720 ILCS 5/9--1(a)(2) (West 1992)). On December 6, 1993, the trial court denied defendant's post-conviction motions, entered judgment on the jury's verdict, and sentenced defendant to 28 years' incarceration. On direct appeal, this court affirmed defendant's conviction and sentence. People v. Vasquez, 2--93--1396 (1995) (unpublished order under Supreme Court Rule 23).

On June 21, 1996, defendant filed a pro se post-conviction petition pursuant to the Act. On June 28, 1996, the trial court dismissed the petition as untimely. The trial court did not address the merits of defendant's petition and made no finding regarding the "frivolous or patently without merit" standard of section 122--2.1(a)(2) of the Act (725 ILCS 5/122--2.1(a)(2) (West 1998)). Defendant appealed the trial court's ruling.

This court found that because the Illinois Supreme Court had granted defendant leave to file an untimely petition for leave to appeal, his post-conviction petition was timely if filed within three years of his conviction. People v. Vasquez, 2--96--0941 (1998) (unpublished order under Supreme Court Rule 23). Consequently, this court reversed the trial court's dismissal and remanded the cause for further proceedings. People v. Vasquez, 2--96--0941 (1998) (unpublished order under Supreme Court Rule 23). On May 8, 1998, the trial court dismissed defendant's petition as frivolous and patently without merit. See 725 ILCS 5/122--2.1(a)(2) (West 1998). Defendant timely appeals.

In this appeal, defendant contends that the trial court improperly dismissed his petition under section 122--2.1(a)(2) because a trial court may only summarily dismiss a petition under that section within 90 days of filing. Defendant argues that his petition should have been considered pursuant to sections 122--4 through 122--6 of the Act. We agree.

Section 122--2.1 of the Act provides in relevant part:

"(a) Within 90 days after the filing and docketing of each petition the court shall examine such petition and enter an order thereon pursuant to this Section.

***

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition ***. ***

(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." 725 ILCS 5/122--2.1(a)(2), (b) (West 1998).

The 90-day provision of section 122--2.1(a) is mandatory rather than discretionary, and a trial court's failure to act within the 90-day period requires the court to docket the petition for further proceedings under sections 122--4 through 122--6 of the Act. See People v. Dauer, 293 Ill. App. 3d 329, 332 (1997).

In People v. Saunders, 261 Ill. App. 3d 700 (1994), the defendant filed a pro se post-conviction petition on December 30, 1991. On December 7, 1992, the trial court improperly dismissed the petition as untimely. Saunders, 261 Ill. App. 3d at 705. We concluded that "[b]ecause the trial court never determined, within the time prescribed, whether to dismiss summarily the petition pursuant to section 122--2.1(a)(2), it was without the power to do so at the [December 7, 1992,] hearing, and it may not do so on remand." Saunders, 261 Ill. App. 3d at 706. Therefore, the defendant was entitled to consideration of his petition under sections 122--4 through 122--6 of the Act. Saunders, 261 Ill. App. 3d at 706.

In this case, five days after defendant's post-conviction petition was filed, the trial court dismissed the petition as untimely. However, the court did not consider the merits of the petition and made no finding as required by section 122--2.1(a)(2). When this matter returned to the trial court on remand, the trial court summarily dismissed defendant's petition as patently without merit. The Act allows summary action on a post-conviction petition, but such action must be taken shortly after filing if it is to be done. Dauer, 293 Ill. App. 3d at 332. When the trial court dismissed defendant's petition a second time, it acted well past the 90-day deadline for summary dismissal and therefore acted without authority. Dauer, 293 Ill. App. 3d at 332; Saunders, 261 Ill. App. 3d at 706. Accordingly, we hold that the 90-day rule of section 122.2.1(a) is mandatory, and the filing of a notice of appeal does not toll or ...


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