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The Illinois Post-Conviction Hearing Act. What is it? Who is it for?

The Illinois Post-Conviction Hearing Act

The Illinois Post-Conviction Hearing Act plays a highly important role in the criminal justice system. There have been an endless number of cases where new evidence was uncovered after the trial that calls the conviction into question. The Act was designed, in part, for these situations.

Every defendant convicted of a felony offense has the right to appeal their conviction before a three-judge panel of the Illinois appellate court. Should this appeal be unsuccessful, defendants may ask the Illinois Supreme Court to hear the appeal, but most of these requests are denied.

Is that the end of it? Not at all.

The Illinois Post-Conviction Act allows a defendant to file a petition for collateral relief in the county court in which they were convicted. Such relief may be a reversal of the conviction, re-sentencing and others.

Post-conviction proceedings are not part of the appeal process. A post-conviction petition may only allege constitutional violations that were not and could not have been included in the defendant’s appeal. For example, if there is new evidence like DNA or a new witness, these claims are typically ripe for post-conviction cases. There are many other examples, such as a witness who recants their trial testimony. Ineffective assistance of counsel claims are also common in post-conviction petitions.

Defendants typically handwrite their petitions and file them from prison. The judge who reviews the petition must decide whether the petition has merit; or to say it contains appropriate allegations. Judges are authorized to dismiss meritless petitions.

Petitioners do not have the right to a lawyer in post-conviction matters; they may, however, request an attorney be appointed by the judge to assist them if they cannot afford to hire a criminal lawyer. Defendants may also hire an experienced criminal defense attorney to handle their post-conviction case and write their petitions for them. This may be a good idea for defendants who do not have the legal knowledge to write their own petitions.

Post-conviction is a slow, three-step process but very valuable, nonetheless.

Step One: The judge reviews the petition and may dismiss it if it lacks merit.

Step Two: The State typically files a motion to dismiss the petition, and a hearing is held on the motion.

Step Three: Petitions that were not dismissed at step two move on to an evidentiary hearing where the Petitioner may present evidence in support of the alleged constitutional violations listed in the petition. Evidence may be, for example, affidavits and witness testimony among others.

Judicial decisions at all three steps may be appealed. There have recently been numerous Illinois appellate decisions overturning unfavorable rulings by post-conviction judges. The reversals are usually due to post-conviction judges misapplying the law, so it’s important that your post-conviction lawyer knows the relevant law very well.