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People v. Robinson9/24/2003
ected this argument, pointing out that the court in Redmond did not discuss the supreme court's explicit holding in People v. Porter, 122 Ill. 2d 64 (1988), that the written order requirement of section 122-2.1(a) had to be interpreted as "directory" rather than mandatory due to the separation of powers doctrine. Ross, 339 Ill. App. 3d at 584, citing Porter, 122 Ill. 2d at 82. The Ross court pointed out that the Redmond court "held that every provision in section 122-2.1 is mandatory, and the failure to serve defendant with a written order within the time period rendered the dismissal void. Redmond, 328 Ill. App. 3d at 378." (Emphasis added.) Ross, 339 Ill. App. 3d at 584. This holding is clearly contrary to the holding in Porter. I agree with the holding in Ross and disagree with the holding in Redmond; consequently, I would affirm the trial court's dismissal of the defendant's post-conviction petition.
The majority explain that they read the 10-day requirement of the statute as being mandatory because " o do otherwise would be to render the 10-day requirement meaningless and would leave Robinson with a right but no remedy for the violation of the statute." Slip op. at 14. In People v. Cortez, 1-00-3668 (January 30, 2003), this court considered what remedy was available to a defendant when the trial court ordered a post-conviction petition to be docketed for further consideration, but the State filed its motion to dismiss more than 30 days after the docketing, in contravention of section 122-5 of the Act. The Cortez court considered the holding of our supreme court in People v. Howell, 60 Ill. 2d 117, 119 (1975), and People v. Hendrix, 54 Ill. 2d 165, 169 (1973). In both of those cases, the supreme court considered what remedy was available to defendants whose state constitutional right to a "prompt preliminary hearing" had been violated. Ill. Const. 1970, art. I, §7. In both cases, the supreme court noted that the legislature had not provided for a remedy for violation of this "right." In both cases, the supreme court rejected the defendants' arguments that their cases should be dismissed, holding that a dismissal of the charge was not a remedy available to the courts. Howell, 60 Ill. 2d at 120; Hendrix, 54 Ill. 2d at 169. Also see People v. Owen, 323 Ill. App. 3d 653, 660 (2001) (defendant not entitled to rescission of statutory summary suspension of driver's license although the arresting officer did not report the driving-under-the-influence arrest to the sheriff's office as required by section 107-4(a-7) of the Criminal Code of 1963 (725 ILCS 5/107-4 (a-7)(West 2000))). In Cortez, this court held that when the State fails to file its motion to dismiss within the 30-day time limit in section 122-5, the petitioner is "entitled to an evidentiary hearing only where he shows (1) that he objected, at the trial court level, to the State's delay in filing its motion to dismiss and (2) that he suffered prejudice as a result of the State's failure to file a timely motion to dismiss." Cortez, slip op. at 8. Applying this rationale to the instant case, it makes sense that if a defendant can show that he suffered prejudice due to the failure to receive a notice of the dismissal within 10 days of its entry, his petition should be remanded for further consideration pursuant to sections 122-4 through 122-6 of the Act. As the defendant in this case has suffered no prejudice, he should not be entitled to any relief.
I also disagree with the majority's holding that this case should be remanded to the trial court. Our review of a trial court's dismissal of a post-conviction petition without an evidentiary hearing is plenary. People v. Rissley, 206 Ill. 2d 403, 412 (2003). While Rissley was a capital case and conseq
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