Post-Conviction Lawyers in Springfield
Every defendant convicted of a felony offense has the right to appeal their conviction before the Illinois appellate court. If this first appeal is denied, petition for leave to file the appeal with the Illinois Supreme Court may be filed, but most of these are rejected. This means the court will not hear the appeal. This entire process is considered a continuation of the original case.
Once a defendant has exhausted state remedies (meaning the state court appeal process has ended unsuccessfully), a petition under the Illinois Post-Conviction Hearing Act may be filed with the trial court in which they were convicted. These petitions are not considered part of the original case as are appeals. Instead, petitions filed under the Act are considered as collateral remedies.
Petitions under this Act are limited to allegations of constitutional violations that were not and could not have been included in the appeal. For example, some new fact is learned after the trial that raises constitutional issues, such as attorney conflicts, new witnesses, witnesses who want to recant their trial testimony and so on. There are many other possible issues.
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There are deadlines for filing these petitions. Typically, a petition must be filed within 60 days of the denial by the Illinois Supreme Court to hear the case. Petitions containing claims of actual innocence, however, have no filing deadlines.
Most often these petitions are hand-written and filed pro se, which means the petitions are filed directly by the defendant from the penitentiary. In addition to claims of constitutional violations, the petition must also state the relief requested; in other words, what the petitioner is asking the court to do, such as resentence, a new trial, etc.
Procedurally, this is a three-step process.
A county judge reviews the petition and decides whether the petition is with or without merit. Petitions without merit are dismissed by the judge, but this decision can be appealed to the appellate court.
Petitions that are not dismissed by the judge are usually assigned local counsel, which means an attorney is appointed to assist at no cost to the petitioner. Assigned counsel is paid by the county for their work. The appointed attorney may amend the petition to add more claims of constitutional violations, but will, at the very least, clean up the petition and resubmit a type-written copy.
The State usually files a motion to dismiss the petition as a matter of course. If the judge grants the motion to dismiss, the process ends; but a dismissal can also be appealed the appellate court. If the judge, however, denies the motion to dismiss, the petition moves to the last step.
What happens in step three depends on the relief requested in the petition. Typically, though, an evidentiary hearing is held where the petitioner can present evidence to support the alleged constitutional violations listed in the petition.
A defendant may choose to hire a criminal defense attorney to handle a post-conviction matter rather than relying on an appointed attorney.
I have been appointed and hired to handle post-conviction matters. I’m not sure how other attorneys handle these, but in my practice, I obtain all the transcripts, and in some cases, the police file as well, such as in murder cases.
I believe this is good practice because I may find more possible constitutional violations. In fact, on a pending post-conviction matter, I uncovered in the police file serious grounds for reversal of my client’s convictions.
Had I done the least amount of work required, I never would have uncovered what could be the most serious constitutional violation and grounds for a new trial.