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People v. Robinson9/24/2003
I dissent. As the majority point out, in dismissing the defendant's post-conviction petition at the first stage, the trial court found that the petition did not have supporting affidavits and its assertions were conclusory. The majority agree with this conclusion and cite People v. Collins, 202 Ill. 2d 59, 66 (2002), for its holding that the failure to attach the necessary "affidavits, records or other evidence," as is required by section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 (West 2000)) justifies the summary dismissal of the petition. The majority state: " must agree with the trial court that the petition was defective on its face." Slip op. at 10. This holding should end our analysis and should result in affirming the trial court. By their decision in this case, the majority refuse to follow the dictates of a very recent decision of our supreme court. " t is fundamental to our judicial system that 'once our supreme court declares the law on any point, its decision is binding on all Illinois courts,' and we cannot refuse to follow it because we have no authority to overrule or modify supreme court decisions." People v. Crespo, 118 Ill. App. 3d 815, 822 (1983), quoting People v. Jones, 114 Ill. App. 3d 576, 585 (1983).
The majority note that the violation of the 10-day notice rule which occurred in this case was the result of the clerk of the circuit court mailing the notice of dismissal two days late. This late mailing resulted in no prejudice to the defendant whatsoever. The defendant timely filed his notice of appeal. In reversing the order of the trial court, an order the majority admit was legally correct, the majority rely on the holding in People v. Redmond, 328 Ill. App. 3d 373 (2002). In Redmond, the trial court sent out the notice of dismissal more than 90 days after the petition was filed and the defendant learned of the order indirectly more than two months after its entry. Redmond, 328 Ill. App. 3d at 375. Upon receiving the defendant's motion to vacate the dismissal, the trial court "relate forward" the date of the dismissal to preserve the defendant's right to appeal. This revised date of the summary dismissal was beyond the 90-day period required by section 122-2.1(a) of the Act. On appeal, the Second District reversed, holding that the 10-day service provision of section 122-2.1(a)(2) is mandatory. Redmond, 328 Ill. App. 3d at 377.
In People v. Crane, 333 Ill. App. 3d 768, 773 (2002), the Second District distinguished its earlier holding in Redmond and held that a violation of section 122-2.1(a)(2)'s requirement of notice within 10 days of a dismissal was harmless where the defendant received the mailing in time to file a timely motion to reconsider. Similarly, as the defendant in this case received the notice of dismissal in time to file a timely motion to reconsider, any error was harmless.
More importantly, a panel of the First District has directly rejected the Second District's holding in Redmond. In People v. Ross, 339 Ill. App. 3d, 580 (2003), this court reviewed a case in which a trial court summarily dismissed a defendant's pro se post-conviction petition on January 15, 2001, within the 90-day statutory period. On February 1, 2001 the trial court discovered that the clerk of the court had not sent notice of the dismissal order to the defendant. The court then entered an order directing the clerk to send out notice of the dismissal to the defendant. The court characterized its order as nunc pro tunc from January 19, 2001. On appeal, the defendant argued that the trial court's failure to meet the notice provision of subsection 122-2.1(a)(2) rendered the dismissal void based on the holding in Redmond.
This court rej
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