The opinion of the court was delivered by: Justice Thomas.
The issue presented is whether the circuit court properly dismissed defendant's pro se post-conviction petition as frivolous and patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2000). We hold that dismissal was proper.
On August 20, 1998, and as part of a negotiated plea agreement, defendant pleaded guilty to one count of possessing a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2000)). As required by Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), the circuit court fully admonished defendant as to the nature of the charge, the statutory sentencing range, and the rights he would be waiving by pleading guilty. After determining that defendant's guilty plea was both voluntary and supported by a sufficient factual basis, the circuit court accepted the plea and imposed the statutory minimum sentence of nine years in prison (see 720 ILCS 570/401(a)(2)(B) (West 2000)). The circuit court then advised defendant that, although he possessed the right to appeal, that right is contingent upon the timely filing of a motion to withdraw his guilty plea and vacate the judgment. Defendant filed no such motion, and no appeal was taken.
On March 16, 1999, defendant filed a pro se petition for post-conviction relief. In the petition, defendant alleged several claims of error, including the following:
"I wanted to appeal the case, which my counsel told me that he will. But never did. that brings me to submitt this motion. thinking im waiting to go back on appeal. I also ask him to put me in for a reduction sentence. which he mislead me. He never submitted that either." The only attachment to defendant's petition was the following sworn verification, which states in its entirety:
"I, London Collins, a prisoner incarcerated in Tamms Minimum Security Unit, have read and understand the above Petition for Post Conviction Relief. All the facts presented are true and correct to the best of my recollection."
The circuit court dismissed defendant's petition as frivolous and patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2000).
On October 10, 2000, the appellate court issued its initial order reversing the circuit court's dismissal of defendant's petition. In that order, the appellate court concluded that, although the allegations set forth above stated the gist of a meritorious constitutional claim, the absence of any supporting documentation rendered defendant's petition insufficient to justify second-stage review under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). The court therefore remanded the cause to the circuit court so that defendant could file affidavits that:
"minimally address the specifics of the defendant's attorney's statement that he would appeal the case, describe in detail all of defendant's subsequent contacts with his attorney and explain fully the twenty-one month delay between the defendant's conviction and the filing of his petition."*fn1
According to the appellate court's order, if defendant successfully filed the requisite affidavits within the allotted time frame, the circuit court would be required to docket defendant's petition for further proceedings. Conversely, if defendant failed to file the necessary affidavits, "the trial court [would be] free to grant a motion to dismiss by the State."
On October 25, 2000, defendant filed a petition for rehearing, arguing that the appellate court lacked the authority to remand the cause for the submission of additional affidavits. According to defendant, once it concluded that defendant's petition stated the gist of a meritorious constitutional claim, the appellate court was required to remand the cause for second-stage post-conviction proceedings, including the appointment of counsel. On October 26, 2000, the State likewise filed a petition for rehearing, arguing that the appellate court's decision ran afoul of the Act in numerous ways. In particular, the State argued that (1) the Act does not contemplate a petition that states the gist of a meritorious claim but nevertheless is insufficient to justify second-stage review, and (2) the circuit court would not be "free to grant a motion to dismiss by the State" based on defendant's failure to submit the requisite affidavits, as the Act does not permit the filing of such motions until the second stage of post-conviction review. On November 17, 2000, the appellate court denied both petitions for rehearing without comment.
On November 21, 2000, the appellate court notified the parties of its intent to file a subsequent opinion in this case. The next day, the appellate court cancelled the filing of any subsequent opinions "until further notice." On December 5, 2000, the State filed in the appellate court a notice of intent to seek leave to appeal. On December 19, 2000, the State filed its petition for leave to appeal. Two days later, the appellate court withdrew its order of October 10, 2000, and informed the parties of its intent to file a new opinion in the case at a later but unspecified date. On December 28, 2000, defendant filed a motion in the appellate court requesting reinstatement of the appellate court's original order, arguing that the appellate court lost jurisdiction over the case when the State filed its petition for leave to appeal. On December 29, 2000, and without disposing of defendant's motion to reinstate, the appellate court issued a new opinion.
In its new opinion, the appellate court again reversed the circuit court's dismissal of defendant's petition. 319 Ill. App. 3d 193. As in its initial order, the appellate court concluded that the contested portion of defendant's petition stated the gist of a meritorious constitutional claim. Contrary to its initial order, however, the court this time concluded that the absence of supporting affidavits did not render defendant's petition legally insufficient. Specifically, the court held that the absence of such documentation was both "unsurprising" and "justified," given that defendant was "incarcerated, indigent and apparently barely literate." Moreover, because the only other likely witness to the alleged conversation was the attorney that defendant now claims was ineffective, it would be "both oppressive and unfair" to require independent evidence of that ...