093_SB1440enr

 
SB1440 Enrolled                      LRB093 10377 RLC 10631 b

 1        AN ACT in relation to criminal law.

 2        Be it  enacted  by  the  People  of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Code of Criminal  Procedure  of  1963  is
 5    amended by changing Section 122-1 as follows:

 6        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
 7        Sec. 122-1. Petition in the trial court.
 8        (a)  Any   person  imprisoned  in  the  penitentiary  who
 9    asserts that in the proceedings which resulted in his or  her
10    conviction  there  was  a  substantial  denial  of his or her
11    rights under the Constitution of the United States or of  the
12    State  of  Illinois  or both may institute a proceeding under
13    this Article.
14        (b)  The proceeding shall be commenced by filing with the
15    clerk of the court in  which  the  conviction  took  place  a
16    petition   (together   with   a  copy  thereof)  verified  by
17    affidavit.  Petitioner shall also serve another copy upon the
18    State's Attorney by any of the methods provided in Rule 7  of
19    the  Supreme  Court.  The clerk shall docket the petition for
20    consideration by the court pursuant to Section  122-2.1  upon
21    his or her receipt thereof and bring the same promptly to the
22    attention of the court.
23        (c)  No proceedings under this Article shall be commenced
24    more  than  6 months after the denial of a petition for leave
25    to appeal or the date for filing such a petition if  none  is
26    filed  or  more than 45 days after the defendant files his or
27    her brief in the appeal of the sentence before  the  Illinois
28    Supreme  Court  (or  more than 45 days after the deadline for
29    the filing of the defendant's brief with the Illinois Supreme
30    Court if no brief is filed) or  3  years  from  the  date  of
31    conviction,   whichever  is  sooner,  unless  the  petitioner
 
SB1440 Enrolled            -2-       LRB093 10377 RLC 10631 b
 1    alleges facts showing that the delay was not due  to  his  or
 2    her culpable negligence.
 3        (d)  A  person  seeking relief by filing a petition under
 4    this Section must specify in the petition or its heading that
 5    it is filed under this Section.    A  trial  court  that  has
 6    received  a  petition complaining of a conviction or sentence
 7    that fails to specify in the petition or its heading that  it
 8    is filed under this Section need not evaluate the petition to
 9    determine whether it could otherwise have stated some grounds
10    for relief under this Article.
11        (e)  A proceeding under this Article may not be commenced
12    on  behalf  of  a  defendant  who has been sentenced to death
13    without the written consent  of  the  defendant,  unless  the
14    defendant,  because  of  a  mental  or physical condition, is
15    incapable of asserting his or her own claim.
16        (f)  Only one petition may be filed by a petitioner under
17    this Article without leave of the court. Leave of  court  may
18    be granted only if a petitioner demonstrates cause for his or
19    her  failure  to  bring  the  claim  in  his  or  her initial
20    post-conviction proceedings and prejudice results  from  that
21    failure.  For purposes of this subsection (f): (1) a prisoner
22    shows cause by identifying an objective factor  that  impeded
23    his  or  her  ability to raise a specific claim during his or
24    her initial post-conviction proceedings; and (2)  a  prisoner
25    shows  prejudice  by  demonstrating that the claim not raised
26    during his or  her  initial  post-conviction  proceedings  so
27    infected  the trial that the resulting conviction or sentence
28    violated due process.
29    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
30    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)