First stage summary dismissal of a postconviction petition as frivolous or patently without merit can only take place if entered within 90 days of the petition's filing and docketing; and advancement to second stage proceedings was appropriate where such an order was signed by a judge on the ninetieth day but was not filed by the clerk until the ninety-first day.
Lisa Madigan, Attorney General, of Springfield, and Joseph H. McMahon, State's Attorney, of St. Charles (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Garson S. Fischer, Assistant Attorneys General, of Chicago, and Patrick Delfino, Lawrence M. Bauer and Joan M. Kripke, of the Office of the State's Attorneys Appellate Prosecutor, of counsel), for the People.
Michael J. Pelletier, Alan D. Goldberg and Alison L.S. Shah, of the Office of the State Appellate Defender, of Chicago, for appellee.
JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
[¶1] At issue is whether the circuit court complies with the 90-day requirement of section 122-2.1(a) of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a) (West 2012)) when it signs and dates an order of dismissal on the ninetieth day after the petition is filed and docketed, but the order is not filed by the clerk until the
ninety-first day. We hold that, because section 122-2.1(a) specifically requires the " entry" of an order, an order that is signed by the judge during the 90-day period, but not file-stamped until the ninety-first day, is not timely for purposes of section 122-2.1(a).
[¶3] A jury convicted defendant, Ivan Perez, of first degree murder. The Appellate Court, Second District, affirmed his conviction and sentence ( People v. Perez, 392 Ill.App.3d 1136, 984 N.E.2d 211, 368 Ill.Dec. 486 (2009) (unpublished order under Supreme Court Rule 23)), and this court denied defendant's petition for leave to appeal ( People v. Perez, 235 Ill.2d 600, 924 N.E.2d 459, 338 Ill.Dec. 253 (2010) (table)).
[¶4] On November 9, 2010, defendant filed a pro se petition for postconviction relief. On February 7, 2011, a circuit court judge signed and dated an order dismissing the petition as frivolous and patently without merit. February 7 was the ninetieth day after the petition was filed. The clerk stamped the order filed on February 8.
[¶5] Defendant appealed, and the appellate court reversed and remanded for second stage proceedings. 2013 IL App (2d) 110306, 988 N.E.2d 131, 370 Ill.Dec. 355. The appellate court held that the dismissal order was untimely because it was not entered until it was filed by the clerk, which occurred on the ninety-first day after the postconviction petition was filed and docketed. The appellate court relied on authority from this court that holds that, for a judgment to be effective, it must be publicly expressed in some manner, at the situs of the proceeding. See Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill.2d 122, 565 N.E.2d 929, 152 Ill.Dec. 247 (1990); People ex rel. Schwartz v. Fagerholm, 17 Ill.2d 131, 161 N.E.2d 20 (1959). The court noted that the record did not reflect the presence of any party, any party's counsel, or any other court personnel on February 7, 2011, the date that the trial court signed the order, and therefore the first public expression of the court's order was on February 8 when it was file-stamped by the clerk. 2013 IL App (2d) 110306, ¶ ¶ 13-14.
[¶6] Justice Hudson dissented. The dissent did not find the Fagerholm line of cases relevant because the Post-Conviction Hearing Act mandates a specific form of procedure. The dissent found the relevant question to be what it means to " enter" an order pursuant to section 122-2.1(a). Id. ¶ 41 (Hudson, J., dissenting). The dissent believed that, because section 122-2.1(a) uses the terms " filing" and " docketing" with respect to the petition, but " enter" with respect to the dismissal order, " enter" cannot be synonymous with filing. According to the dissent, the legislature's use of these different terms signified that it intended the entry of the order to be when the court signed and dated it. Id. ¶ 35. The dissent acknowledged that the definition of " enter" means " [t]o put formally before a court or on the record" (Black's Law Dictionary 552 (7th ed. 1999)), but claimed that the trial court formally placed its decision on the record on February 7, 2011, when it signed the dismissal order. 2013 IL App (2d) 110306, ¶ 36 (Hudson, J., dissenting).
[¶7] We allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. July 1, 2013).
[¶9] The issue requires us to construe section 122-2.1(a) of the ...