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Illinois Compiled Statutes

Information maintained by the Legislative Reference Bureau
Updating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent laws may not yet be included in the ILCS database, but they are found on this site as Public Acts soon after they become law. For information concerning the relationship between statutes and Public Acts, refer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutory changes are sometimes included in the statute database before they take effect. If the source note at the end of a Section of the statutes includes a Public Act that has not yet taken effect, the version of the law that is currently in effect may have already been removed from the database and you should refer to that Public Act to see the changes made to the current law.

CRIMINAL PROCEDURE
(725 ILCS 5/) Code of Criminal Procedure of 1963.

725 ILCS 5/121A-2

    (725 ILCS 5/121A-2)
    Sec. 121A-2. Pending direct appeal after the defendant's death.
    (a) Whenever the prosecuting attorney learns of the death of the defendant following the entry of a final and appealable judgment but prior to the conclusion of the defendant's direct appeal from the conviction, he or she shall promptly notify the other party and file a certificate of notice of the defendant's death with the reviewing court before which the direct appeal is pending.
    (b) Unless the executor or administrator of the defendant's estate or other successor in interest files a verified motion to intervene in the direct appeal within 30 days of the filing of the certificate under subsection (a) of this Section, the reviewing court shall dismiss the direct appeal without disturbing the judgment of the circuit court.
    (c) If the court receives a timely petition for leave to intervene by an authorized party, the reviewing court shall permit the petitioning party to intervene in the direct appeal in place of the defendant and the direct appeal shall proceed in the same manner as if the defendant were still alive. The authority to intervene shall terminate automatically upon completion of the proceedings in the direct appeal.
    (d) Nothing in this Section shall be construed to authorize the filing or continued litigation of a post-conviction petition or other collateral attack on a conviction or sentence on behalf of a deceased defendant.
(Source: P.A. 99-778, eff. 1-1-17.)

725 ILCS 5/Art. 122

 
    (725 ILCS 5/Art. 122 heading)
ARTICLE 122. POST-CONVICTION HEARING

725 ILCS 5/122-1

    (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
    Sec. 122-1. Petition in the trial court.
    (a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
        (1) in the proceedings which resulted in his or her
    
conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both;
        (2) the death penalty was imposed and there is newly
    
discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence; or
        (3) (blank).
    (a-5) A proceeding under paragraph (2) of subsection (a) may be commenced within a reasonable period of time after the person's conviction notwithstanding any other provisions of this Article. In such a proceeding regarding actual innocence, if 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 shall be served upon the petitioner by certified mail within 10 days of its entry.
    (b) The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit. Petitioner shall also serve another copy upon the State's Attorney by any of the methods provided in Rule 7 of the Supreme Court. The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court.
    (c) Except as otherwise provided in subsection (a-5), if the petitioner is under sentence of death and a petition for writ of certiorari is filed, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
    When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
    This limitation does not apply to a petition advancing a claim of actual innocence.
    (d) A person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.
    (e) A proceeding under this Article may not be commenced on behalf of a defendant who has been sentenced to death without the written consent of the defendant, unless the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim.
    (f) Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.
(Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)

725 ILCS 5/122-2

    (725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
    Sec. 122-2. Contents of petition.
    The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner's constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.
(Source: Laws 1963, p. 2836.)

725 ILCS 5/122-2.1

    (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
    Sec. 122-2.1. (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.
        (1) If the petitioner is under sentence of death and
    
is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.
        (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 shall be served upon the petitioner by certified mail within 10 days of its entry.
    (b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6. If the petitioner is under sentence of death, the court shall order the petition to be docketed for further consideration and hearing within one year of the filing of the petition. Continuances may be granted as the court deems appropriate.
    (c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.
(Source: P.A. 93-605, eff. 11-19-03.)