Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County No. 07 CR 17363,
Honorable Mary Margaret Brosnahan, Judge, Presiding.
HOFFMAN PRESIDING JUSTICE delivered the judgment of the
court, with opinion. Justices Cunningham and Connors
concurred in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE.
1 The defendant, Vernon Chapman, appeals from an order of the
circuit court entered on October 13, 2016, dismissing his
amended petition under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2014)), which sought
relief from a judgment of conviction entered against him on
July 14, 2008, based upon his plea of guilty to one count of
criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2006)).
For the reasons which follow, we vacate the circuit
court's order of October 13, 2006, for want of
jurisdiction and remand the matter for further proceedings.
2 The defendant pled guilty to a single count of criminal
drug conspiracy and was sentenced to six years'
imprisonment, including a period of mandatory supervised
release. Thereafter, the defendant filed a petition under the
Act seeking relief from his conviction and sentence. On
February 13, 2014, the circuit court entered an order
dismissing that petition based on a finding that the
defendant lacked standing. The defendant appealed, and on
February 5, 2016, this court issued its order, reversing the
circuit court's order dismissing the defendant's
petition and remanding the matter for first-stage proceedings
under the Act. People v. Chapman, 2016 IL App (1st)
140724-U. On April 18, 2016, the defendant filed an amended
petition under the Act.
3 Our mandate in Chapman was filed with the clerk of
the circuit court on October 18, 2016. On October 13, 2016,
five days prior to the filing of our mandate, the circuit
court summarily dismissed the defendant's amended
petition. The defendant filed the instant appeal, challenging
that order on jurisdictional grounds.
4 When a timely notice of appeal has been filed, the
jurisdiction of the appellate court attaches and the circuit
court is divested of jurisdiction. People v. Perry,
2014 IL App (1st) 122584, ¶ 13. The judgment of the
appellate court becomes final when entered. However, it is
the filing of the mandate that reinvests jurisdiction in the
circuit court. Hickey v. Riera, 332 Ill.App.3d 532,
543 (2001). After the filing of a notice of appeal and prior
to the filing of the appellate court's mandate, the
circuit court lacks jurisdiction to enter any order of
substance in the cause. Brownlow v. Richards, 328
Ill.App.3d 833, 836-37 (2002). An order entered by the
circuit court in the absence of jurisdiction is void.
People v. Davis, 156 Ill.2d 149, 155 (1993).
5 In this case, the circuit court entered its order summarily
dismissing the defendant's amended petition for
post-conviction relief five days prior to the filing of this
court's mandate in Chapman. The order is
therefore void for want of jurisdiction and must be vacated.
The State has conceded the issue and also requests that we
vacate the circuit court's order of October 13, 2016, and
remand the matter back to the circuit court.
6 The parties disagree, however, on the procedure to be
followed by the circuit court on remand. The defendant argues
that we should remand the matter to the circuit court with
directions to conduct a second-stage proceeding under the Act
(see 725 ILCS 5/122-5 (West 2016)) on his amended petition.
He contends that more than 90 days have passed since the
filing of the amended petition, and as a consequence, it must
be advanced to the second stage with the appointment of
counsel. The State argues that the matter should be remanded
for a first-stage proceeding as this court ordered in
Chapman, 2016 IL App (1st) 1400724-U, ¶ 20. The
State reasons that the 90-day period provided for
consideration of the defendant's amended petition (see
725 ILCS 5/122-2.1 (West 2016)) never expired from the date
that the circuit court was reinvested with jurisdiction over
this matter on October 18, 2016, and the filing of the
defendant's notice of appeal on November 4, 2016. We
agree with the State.
7 By statute, the circuit court is required to examine a
post-conviction petition within 90 days of its filing and
docketing. 725 ILCS 5/122-2.1(a) (West 2016). It is during
this period that the petition may be dismissed if the circuit
court determines it to be frivolous or patently without
merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If a
post-conviction petition is not dismissed within that 90-day
period, it must be advanced to the second stage with the
appointment of counsel. People v. Boclair, 202
Ill.2d 89, 100 (2002). The circuit court lacks the statutory
authority to summarily dismiss a post-conviction petition
after the expiration of the 90-day period. People v.
Brooks, 221 Ill.2d 381, 389 (2006).
8 In this case, the defendant's amended petition was
filed on April 18, 2016, and the 90-day period would have
expired on July 17, 2016. However, the circuit court had no
jurisdiction over the matter for that entire period due to
the pendency of the defendant's earlier appeal and could
not, therefore, examine or enter any order on the
defendant's amended petition. To accept the
defendant's argument would eviscerate the circuit
court's ability to dismiss post-conviction petitions
which are frivolous or patently without merit. A defendant
could circumvent the circuit court's ability to summarily
dismiss a meritless post-conviction petition by filing the
petition at a time when the circuit court had no jurisdiction
to address it due to the pendency of the defendant's
direct appeal. We believe, therefore, that only the period of
time during which the circuit court has jurisdiction to
examine a post-conviction petition and enter an order thereon
shall be considered in computing the 90-day dispositional
period set forth in section 122-2.1(a) of the Act.
9 The circuit court was reinvested with jurisdiction over
this case on October 18, 2016, and again divested of
jurisdiction on November 4, 2016, when the defendant filed
his notice of appeal from the October 13, 2016, order. As a
consequence, the circuit court only possessed jurisdiction
over the defendant's amended post-conviction petition for
a period of 17 days. We conclude, therefore, that 73 days
remain in the 90-day period within which the circuit court is
required to examine the defendant's amended petition and
enter an order thereon.
10 Based upon the foregoing analysis, we vacate the circuit
court's order of October 13, 2016, and remand this matter
for first-stage proceedings under ...