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People v. Lopez

December 06, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALLEN LOPEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Mary Maxwell Thomas, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALLEN LOPEZ, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. Honorable Mary Maxwell Thomas, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

The other appellate districts are evenly divided on the issue we address in this case: Can a trial court summarily dismiss a post- conviction petition where it finds the defendant failed to allege sufficient facts showing an untimely filing was not due to the defendant's culpable negligence? We join those courts that have held the answer is yes.

 Following a jury trial, defendant Allen Lopez was convicted of first degree murder and sentenced to 32 years in prison. We affirmed his conviction and sentence on direct appeal. People v. Lopez, No. 1- 94-2736 (1996)(unpublished order pursuant to Supreme Court Rule 23). Defendant subsequently filed a pro se petition for post-conviction relief which the trial court summarily dismissed after finding it was not filed within the statutorily prescribed time period. In fact, it was eighteen months late.

On appeal, defendant concedes his petition was not timely filed, but contends the trial court erred in dismissing his petition since he had alleged the late filing was not due to his culpable negligence.

The threshold inquiry is whether a post-conviction petition can be summarily dismissed solely on the ground of untimeliness as it was in this case. This question has not yet been answered by the First District.

The conflict among the districts derives from different interpretations of the supreme court's decision in People v. Wright, 189 Ill. 2d 1, 723 N.E.2d 230 (1999), which held the time provision in section 122-1(c) of the Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 et. seq. (West 1998)) operates as a statute of limitations rather than a jurisdictional bar.

The Act provides a three-stage process for adjudication of post- conviction petitions. People v. Frieberg, 305 Ill. App. 3d 840, 846, 713 N.E.2d 210 (1999). During the first stage the trial court determines, without any input from the State or further pleadings from the defendant, whether the petition is frivolous or patently without merit. Frieberg, 305 Ill. App. 3d at 847. If the petition survives this stage, the court may appoint counsel to represent an indigent defendant, and counsel will have an opportunity to amend the petition. Frieberg, 305 Ill. App. 3d at 847. The State then may file a motion to dismiss the petition. Frieberg, 305 Ill. App. 3d at 847. If the State does not file a motion to dismiss or if the trial court denies the State's motion, the trial court will proceed to the third stage and conduct an evidentiary hearing on the merits of the petition. Frieberg, 305 Ill. App. 3d at 847.

Section 122-1(c) of the Act sets out a time limitation for post- conviction relief. This section states, in pertinent part:

"(c) No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court *** or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c)(West 1998).

In Wright, the defendant's petition for post-conviction relief survived the first stage of the proceedings. At the second stage, the trial court granted the State's motion to dismiss the petition. On appeal, the defendant contended the trial court erred in granting the State's motion. The State responded, in part, by claiming defendant's petition was untimely ...


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