Appeal from the Circuit Court OF ILLINOIS, of Winnebago County. No. 02-CF-342 Honorable Gary V. Pumilia, Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
¶ 1 At issue in this appeal is whether defendant, Charles W. King, is entitled to have the summary dismissal of his post-conviction petition reversed and the cause remanded for stage-two proceedings when the trial court orally dismissed his petition within 90 days after it was filed, indicating that a written order would be entered, but filed the written order after those 90 days had expired. We conclude that, when a trial court indicates that a written order dismissing a petition will be entered, the date that the written order is filed constitutes the date of the dismissal. Thus, we reverse the summary dismissal of defendant's petition and remand this cause for further proceedings.
¶ 2 Following a jury trial, defendant was convicted of two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2002)) and two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2002)). The trial court sentenced defendant to consecutive terms of 20 years' imprisonment on the aggravated criminal sexual assault convictions, and defendant appealed. This court affirmed. People v. King, Nos. 2-03-1047 & 2-04-0240 cons. (2005) (unpublished order under Supreme Court Rule 23). Thereafter, defendant filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). The trial court granted the State's motion to dismiss the petition, and defendant appealed. The appellate defender moved to withdraw, and this court granted the motion and affirmed the judgment. People v. King, No. 2-07-1056 (2009) (unpublished order under Supreme Court Rule 23).
¶ 3 On February 22, 2010, defendant filed a 252-page post-conviction petition. On May 14, 2010, the trial court orally dismissed the petition, finding it frivolous and patently without merit. In doing so, the court stated:
"The petition is denied [sic] as of this date. I need to put my ruling into a written order, and I will do so, but the ruling is as of this date.
And the Clerk then will mail a copy of that order to the defendant, but it is dated today, the 14th [of May]; [defendant's] filing was in February and this is within the 90-day period."
¶ 4 On June 10, 2010, the trial court filed its written order dismissing the petition. Defendant moved the trial court to reconsider, arguing that, because the written order dismissing the petition was not filed within 90 days after he filed the petition, the petition had to be advanced to stage two of post-conviction proceedings. The trial court denied the motion, noting that the written order merely memorialized the court's judicial act of dismissing the petition on May 14, 2010. This appeal followed.
¶ 5 At issue in this appeal is whether defendant is entitled to have the summary dismissal of his post-conviction petition reversed and the cause remanded for stage-two proceedings when the trial court orally dismissed the petition within 90 days, indicating at that time that a written order would be filed, but filed the written order after the 90 days had expired. Because resolution of this issue does not require us to defer to the trial court's reasoning, our review is de novo. People v. McCreary, 393 Ill. App. 3d 402, 406 (2009).
¶ 6 In addressing the issue raised, we begin by examining section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2) (West 2010)). Section 122-2.1(a)(2) 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 in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and ...