Public Act 93-0493

SB1440 Enrolled                      LRB093 10377 RLC 10631 b

    AN ACT in relation to criminal law.

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

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

    (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  who
asserts that 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 may institute a proceeding under
this Article.
    (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)  No proceedings under this Article shall be commenced
more  than  6 months after the denial of a petition for leave
to appeal or the date for filing such a petition if  none  is
filed  or  more than 45 days after the defendant files his or
her brief in the appeal of the sentence before  the  Illinois
Supreme  Court  (or  more than 45 days after the deadline for
the filing of the defendant's brief with the Illinois Supreme
Court if no brief is filed) or  3  years  from  the  date  of
conviction,   whichever  is  sooner,  unless  the  petitioner
alleges facts showing that the delay was not due  to  his  or
her culpable negligence.
    (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.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)