 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Robinson9/24/2003
plains that "a mandatory interpretation of section 122-2.1 as to the entry of a written order and its contents would violate the doctrine of separation of powers." Porter, 122 Ill. 2d at 82, citing People v. Price, 144 Ill. App. 3d 949 (1986).
The issue of whether the word "shall" found in the 10-day requirement in section 122-2.1(a)(2) is mandatory or directory was recently addressed by this court in People v. Ross, 339 Ill. App. 3d 580 (2003). Ross stands for the proposition that " ' he ministerial failure of the clerk to enter the judgment into his records does not affect the validity of the judgment.' " Ross, 339 Ill. App. 3d at 583, quoting In re Marriage of Garlinski, 99 Ill. App. 3d 107, 109 (1981). Ross takes care to keep separate those acts that are judicial and those that are merely ministerial. Ross, 339 Ill. App. 3d at 583, citing People v. Redman, 122 Ill. App. 3d 787, 791-92 (1984). This issue was also recently addressed in People v. Remond, 328 Ill. App. 3d 373 (2002). Redmond also stands for the proposition that the 10-day service provision of section 122-2.1(a)(2) is mandatory. Remond, 328 Ill. App. 3d at 377. As did the court in Ross, we recognize that the requirement placed on the clerk of the circuit court to serve a defendant like Robinson within 10 days from the entry of the trial court's judgment is ministerial. It is precisely because it is ministerial and not judicial, the concerns in Porter and Ross about the separation of powers between the legislature and judicial branch of government are not implicated. Therefore, because the 10-day requirement appears within the same section of the Act as the 90-day time requirement for summary dismissals set forth in section 122-2.1(a), we hold that the requirement on the clerk of court to act within 10 days from the entry of the trial court's judgment is also a mandatory requirement. As a result, when the mandates of section 122-2.1 have not been complied with, we have remanded the cause for proceedings in accordance with sections 122-4 through 122-6 of the Post-Conviction Hearing Act. Redmond, 328 Ill. App. 3d 373, citing 725 ILCS 5/ 122-2.1(b); Magdaleno, 188 Ill. App. 3d at 387, citing People v. Nelson, 182 Ill. App. 3d 1071, 1074 (1989). Even though Robinson's petition is defective on its face and, absent the clerical error, we would not hesitate to uphold the actions of the trial court, we must enforce the statutes as written. To 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. In order to remedy the violation in this matter, we choose to adopt the Redmond and Magdaleno approach and remand the case for a stage-two hearing. Though this may seem mired in futility, it will afford Robinson the opportunity to amend his petition to correct the infirmities. In this way, the State will bear the burden of the error below instead of the incarcerated defendant. Should Robinson, hopefully with the aid of counsel, still be unable to demonstrate a constitutional claim, he will not prevail and the matter will have been litigated error-free to its logical conclusion.
IV.
Finally, though it was not raised as an issue by Robinson, the State claims the matter must be remanded for resentencing. The State argues that Robinson's sentences should have been consecutive and not concurrent. The applicable statute at the time of the event reads, in pertinent part, as follows:
"When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed
Page 1 2 3 4 5 6 7 8 9 10 11 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|