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People v. Jenkins

June 7, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES JENKINS, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County No. 96CF142 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Released for publication.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES JENKINS, DEFENDANT-APPELLANT.

Appeal from Circuit Court of McLean County No. 96CF142 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Defendant, Charles Jenkins, filed a petition for post-conviction relief pursuant to section 122-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/122-1 (West 2000)), often referred to as the Post-Conviction Hearing Act (Act). Upon initial review, the trial court dismissed the petition as untimely. Defendant appeals, arguing that the trial court erred in so finding. We affirm.

I. BACKGROUND

On January 7, 1998, pursuant to a plea agreement, defendant pleaded guilty to three counts of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1996)), and the trial court sentenced him to three concurrent 46-year prison terms, one for each count. Defendant moved to withdraw his guilty plea and vacate the conviction. See 145 Ill. 2d R. 604(d). On December 7, 1998, the trial court denied the motion, and defendant appealed. We affirmed (People v. Jenkins, No. 4-99-0025 (July 26, 2000) (unpublished order under Supreme Court Rule 23)), and defendant filed a petition for leave to appeal to the supreme court. On October 4, 2000, the supreme court denied defendant's petition for leave to appeal. People v. Jenkins, 191 Ill. 2d 547, 738 N.E.2d 932 (2000) (table cite).

On February 8, 2001, defendant filed his - 1 -petition for post-conviction relief. Sua sponte, the trial court dismissed the petition, without prejudice, on the ground that the petition was untimely. Noting that a defendant may file a late petition for post-conviction relief if the delay was not due to his or her culpable negligence, the trial court, in its order of dismissal, allowed defendant 30 days "to file any factual allegations that would indicate that the delay in filing this petition was not due to his culpable negligence." Defendant responded with a motion to reconsider, alleging only that his petition for post-conviction relief was timely because he had filed it within six months after the supreme court issued a mandate on its denial of his petition for leave to appeal. The trial court denied the motion to reconsider. This appeal followed.

II. ANALYSIS

Section 122-1(c) states:

"No proceedings under this [a]rticle 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 more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) 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 2000).

Thus, a defendant must file his or her petition for post-conviction relief by the earliest of the following three deadlines: (1) six months after "the denial of a petition for leave to appeal" to the supreme court "or the date for filing such a petition," (2) 45 days after the defendant files his or her brief in an appeal before the supreme court (or 45 days after the brief is due, if none is filed), or (3) three years after the date of conviction. 725 ILCS 5/122-1(c) (West 2000). If the petition is untimely, the defendant must allege "facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 2000).

Because the present case does not involve an appeal to the supreme court, the 45-day period is inapplicable. Therefore, we must ascertain which of the remaining two periods expired earlier: the six-month period or the three-year period. Defendant agrees that the six-month period ended on April 4, 2001 (six months after the supreme court denied his petition for leave to appeal on October 4, ...


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