People v. Perez
2013 IL App (2d) 110306
Ill. App. Ct.2013Background
- Perez indicted 2004 for murder, convicted 2007, sentenced to 60 years; direct appeal affirmed.
- November 9, 2010, Perez filed pro se postconviction petition alleging ineffective appellate counsel.
- February 7, 2011, trial court signed an order dismissing the petition as frivolous.
- February 8, 2011, circuit clerk filed the order; issue whether dismissal occurred within 90-day statutory period.
- Court held the judgment was not rendered within 90 days; majority remanded for second-stage proceedings; dissent disagreed on timing of entry and public expression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first-stage dismissal was timely under 122-2.1(a). | Perez argues dismissal occurred after 90 days. | State asserts timely within 90 days. | Untimely; dismissal void; remanded for second-stage proceedings. |
| Whether a lack of public expression invalidates the dismissal. | Public expression occurred when signed Feb. 7, 2011. | Public expression not shown; filing date controls. | Public expression was not proven on Feb. 7; filing date Feb. 8 controls; dismissal void. |
Key Cases Cited
- People v. Hansen, 2011 IL App (2d) 081226 (2011 IL App (2d)) (dismissal timely when 90-day period met and order publicly expressed)
- Dunn v. Patton, 307 Ill. App. 3d 375 (1999) (timing of judgment depending on public expression and record)
- Garlinski, 99 Ill. App. 3d 107 (1981) (judgment final when memorialized and entered; execution of judgment depends on entry)
- Ortega, 106 Ill. App. 3d 1018 (1982) (rendition of judgment; final and appealable when record reflects ruling)
- Cirro Wrecking, 153 Ill. 2d 6 (1990) (distinguishes rendering vs. clerk’s entry for finality)
- Ross, 339 Ill. App. 3d 580 (2003) (timeliness of dismissal based on record of proceedings and orders)
- Redmond, 328 Ill. App. 3d 373 (2002) (service within 10 days; affects validity of dismissal)
- Granite City Lodge No. 272, 141 Ill. 2d 122 (1990) (public expression requirement and timing of action)
- Fagerholm, 17 Ill. 2d 131 (1959) (public expression in words at situs of proceeding)