Bill Text: IL HB2961 | 2013-2014 | 98th General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Code of Criminal Procedure of 1963. Allows any defendant convicted of a criminal offense (rather than only those imprisoned on a felony offense) to file a post-conviction petition challenging his or her conviction on the grounds there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois. Allows any defendant convicted of a criminal offense (rather than only those under sentence of death) to file a post-conviction petition on the basis of newly discovered evidence (rather than newly discovered evidence not available at the time of the proceeding in which he or she was convicted) that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence. Allows a post-conviction petition to be commenced on behalf of any defendant (rather than only a defendant sentenced to death), without the written consent of the defendant, if the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim. Makes conforming changes in the statute on court dismissals of post-conviction petitions.
Spectrum: Strong Partisan Bill (Democrat 10-1)
Status: (Failed) 2014-12-03 - Session Sine Die [HB2961 Detail]
Download: Illinois-2013-HB2961-Amended.html
Bill Title: Amends the Code of Criminal Procedure of 1963. Allows any defendant convicted of a criminal offense (rather than only those imprisoned on a felony offense) to file a post-conviction petition challenging his or her conviction on the grounds there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois. Allows any defendant convicted of a criminal offense (rather than only those under sentence of death) to file a post-conviction petition on the basis of newly discovered evidence (rather than newly discovered evidence not available at the time of the proceeding in which he or she was convicted) that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence. Allows a post-conviction petition to be commenced on behalf of any defendant (rather than only a defendant sentenced to death), without the written consent of the defendant, if the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim. Makes conforming changes in the statute on court dismissals of post-conviction petitions.
Spectrum: Strong Partisan Bill (Democrat 10-1)
Status: (Failed) 2014-12-03 - Session Sine Die [HB2961 Detail]
Download: Illinois-2013-HB2961-Amended.html
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1 | AMENDMENT TO HOUSE BILL 2961
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2 | AMENDMENT NO. ______. Amend House Bill 2961 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Code of Criminal Procedure of 1963 is | ||||||
5 | amended by changing Sections 122-1 and 122-2.1 as follows:
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6 | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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7 | Sec. 122-1. Petition in the trial court.
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8 | (a) Any person convicted or adjudicated delinquent of an | ||||||
9 | offense for which either a sentence of imprisonment was imposed | ||||||
10 | or another form of detention resulted imprisoned in the | ||||||
11 | penitentiary may institute a proceeding under this Article if | ||||||
12 | the person asserts that: | ||||||
13 | (1) in the
proceedings which resulted in his or her | ||||||
14 | conviction or delinquency adjudication there was a | ||||||
15 | substantial
denial of his or her rights under the | ||||||
16 | Constitution of the United States or
of the State of |
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1 | Illinois or both; or
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2 | (2) the death penalty was imposed and there is
newly | ||||||
3 | discovered evidence not available to the person at
the time | ||||||
4 | of the proceeding that resulted in his or her
conviction | ||||||
5 | that establishes a substantial basis to believe that the | ||||||
6 | defendant
is actually innocent by clear and convincing | ||||||
7 | evidence.
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8 | (a-5) A proceeding under paragraph (2) of subsection (a)
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9 | may be commenced within a reasonable period of time after the | ||||||
10 | person's
conviction
or delinquency adjudication | ||||||
11 | notwithstanding any other provisions of
this Article. In such a | ||||||
12 | proceeding regarding
actual innocence, if the court determines | ||||||
13 | the petition is
frivolous or is patently without merit, it | ||||||
14 | shall dismiss the
petition in a written order, specifying the | ||||||
15 | findings of fact
and conclusions of law it made in reaching its | ||||||
16 | decision.
Such order of dismissal is a final judgment and shall | ||||||
17 | be
served upon the petitioner by certified mail within 10 days
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18 | of its entry.
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19 | (b) The proceeding shall be commenced by filing with the | ||||||
20 | clerk of the court
in which the conviction or delinquency | ||||||
21 | adjudication took place a petition (together with a copy | ||||||
22 | thereof)
verified by affidavit. Petitioner shall also serve | ||||||
23 | another copy upon the
State's Attorney by any of the methods | ||||||
24 | provided in Rule 7 of the Supreme
Court. The clerk shall docket | ||||||
25 | the petition for consideration by the court
pursuant to Section | ||||||
26 | 122-2.1 upon his or her receipt thereof and bring the same
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1 | promptly to the attention of the court.
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2 | (c) Except as otherwise provided in subsection (a-5), if
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3 | the petitioner is under sentence of death and a petition for | ||||||
4 | writ of certiorari is filed,
no proceedings under this Article | ||||||
5 | shall be commenced more than 6 months after
the conclusion of | ||||||
6 | proceedings in the United States Supreme Court, unless the | ||||||
7 | petitioner alleges facts showing that the delay
was
not due to | ||||||
8 | his or her culpable negligence. If a petition for certiorari is | ||||||
9 | not filed, no proceedings under this Article shall be commenced | ||||||
10 | more than 6 months from the date for filing a certiorari | ||||||
11 | petition, unless the petitioner alleges facts showing that the | ||||||
12 | delay was not due to his or her culpable negligence.
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13 | Except as otherwise provided in subsection (a-5) When a | ||||||
14 | defendant has a sentence other than death , no proceedings under | ||||||
15 | this
Article shall be commenced more than 6 months after the | ||||||
16 | conclusion of proceedings in the United States Supreme Court, | ||||||
17 | unless the petitioner
alleges facts showing that the delay was | ||||||
18 | not due to his or her culpable
negligence.
If a petition for | ||||||
19 | certiorari is not filed, no proceedings under this Article | ||||||
20 | shall be commenced more than 6 months from the date for filing | ||||||
21 | a certiorari petition, unless the petitioner alleges facts | ||||||
22 | showing that the delay was not due to his or her culpable | ||||||
23 | negligence. If a defendant does not file a direct appeal, the | ||||||
24 | post-conviction petition shall be filed no later than 3 years | ||||||
25 | from the date of conviction or delinquency adjudication , unless | ||||||
26 | the petitioner alleges facts showing that the delay was not due |
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1 | to his or her culpable negligence.
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2 | This limitation does not apply to a petition advancing a | ||||||
3 | claim of actual
innocence. | ||||||
4 | (d) A person seeking relief by filing a petition under this | ||||||
5 | Section must
specify in the petition or its heading that it is | ||||||
6 | filed under this Section.
A trial court that has received a | ||||||
7 | petition complaining of a conviction , delinquency | ||||||
8 | adjudication, or
sentence that fails to specify in the petition | ||||||
9 | or its heading that it is
filed under this Section need not | ||||||
10 | evaluate the petition to determine
whether it could otherwise | ||||||
11 | have stated some grounds for relief under
this Article.
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12 | (e) A proceeding under this Article may not be commenced on | ||||||
13 | behalf of a
defendant who has been sentenced to death without | ||||||
14 | the written consent of the
defendant, unless the defendant, | ||||||
15 | because of a mental or physical condition, is
incapable of | ||||||
16 | asserting his or her own claim.
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17 | (f) Only one petition may be filed by a petitioner under | ||||||
18 | this Article
without leave of the court.
Leave of court may be | ||||||
19 | granted only if a petitioner demonstrates : | ||||||
20 | (1)
cause for his or her failure to bring the claim in | ||||||
21 | his or her initial
post-conviction proceedings and | ||||||
22 | prejudice results from that failure ; or | ||||||
23 | (2) that there has been a fundamental miscarriage of | ||||||
24 | justice . | ||||||
25 | For
purposes
of this subsection (f): | ||||||
26 | (A) (1) a petitioner prisoner shows cause by |
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1 | identifying an objective
factor that impeded his or her | ||||||
2 | ability to raise a specific claim during his or
her initial | ||||||
3 | post-conviction proceedings; and | ||||||
4 | (B) (2) a petitioner prisoner shows prejudice by
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5 | demonstrating that the claim not raised during his or her | ||||||
6 | initial
post-conviction proceedings so infected the trial | ||||||
7 | that the resulting conviction
or
sentence violated due | ||||||
8 | process ; and . | ||||||
9 | (C) a petitioner demonstrates a miscarriage of justice | ||||||
10 | by showing there is newly discovered evidence that | ||||||
11 | establishes that it is more likely than not that the | ||||||
12 | petitioner is actually innocent by clear and convincing | ||||||
13 | evidence. | ||||||
14 |
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15 | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | ||||||
16 | 93-972, eff. 8-20-04.)
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17 | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
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18 | Sec. 122-2.1. (a) Within 90 days after the filing and | ||||||
19 | docketing of each
petition, the court shall examine the such | ||||||
20 | petition and enter an order thereon
under pursuant to this | ||||||
21 | Section.
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22 | (1) If the petitioner is under sentence of death and is | ||||||
23 | without
counsel and alleges that he is without means to | ||||||
24 | procure counsel, he shall
state whether or not he wishes | ||||||
25 | counsel to be appointed to represent him.
If appointment of |
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1 | counsel is so requested, the court shall appoint counsel
if | ||||||
2 | satisfied that the petitioner has no means to procure | ||||||
3 | counsel.
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4 | (2) If the petitioner is sentenced to imprisonment and | ||||||
5 | the court
determines the petition is frivolous or is | ||||||
6 | patently without merit, it shall
dismiss the petition in a | ||||||
7 | written order, specifying the findings of fact and
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8 | conclusions of law it made in reaching its decision. This | ||||||
9 | Such order of
dismissal is a final judgment and shall be | ||||||
10 | served upon the petitioner by
certified mail within 10 days | ||||||
11 | of its entry.
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12 | (b) If the petition is not dismissed under pursuant to this | ||||||
13 | Section, the court
shall order the petition to be docketed for | ||||||
14 | further consideration in accordance
with Sections 122-4 | ||||||
15 | through 122-6.
If the petitioner is under sentence of death, | ||||||
16 | the court shall order the
petition to be docketed for further | ||||||
17 | consideration and hearing within one year
of the filing of the | ||||||
18 | petition. Continuances may be granted as the court deems
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19 | appropriate.
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20 | (c) In considering a petition under pursuant to this | ||||||
21 | Section, the court may
examine the court file of the proceeding | ||||||
22 | in which the petitioner was convicted,
any action taken by an | ||||||
23 | appellate court in that such proceeding and any transcripts
of | ||||||
24 | that such proceeding.
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25 | (Source: P.A. 93-605, eff. 11-19-03.)".
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