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Is my failure to serve the State's Attny fatal to my initial PC petition which the court accepted?

Discussion in 'Criminal Procedure, Criminal Court' started by Petitioner, Nov 6, 2021.

  1. Petitioner

    Petitioner Law Topic Starter New Member

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    Jurisdiction:
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    The deadline for the submittal of my IL initial post-conviction petition in the appeal of my criminal conviction was in July 2021. I mailed it timely to the trial court but didn't send a copy of it to my county State's Attorney. My judge independently accepted and moved my petition to 2nd stage in September 2021. Yesterday, at 1st status, the state piped up to advise the judge that it intends to challenge my petition on jurisdiction because I failed to serve them properly. The judge did not dismiss my petition outright. He said he lacks the power to do so right now & just told the state it will have to wait to respond to my petition after it is amended.

    I am sure that this is a settled legal question, and that other defendants have committed the same error; I just don't see the answer in caselaw. I want to know, if I immediately now serve the state properly (by certified mail or personal service) with a copy of my July 2021 petition, will my filing error be regarded as "harmless", or does it just doom my petition altogether? Will the merit of my petition after it is revised and amended play into this consideration?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    What were you convicted for?
    Did you have a lawyer?
    What are the grounds for your appeal?
    Do you have a lawyer?

    Just wondering what else you might be getting wrong without a lawyer besides process service.
     
  3. army judge

    army judge Super Moderator

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  4. Petitioner

    Petitioner Law Topic Starter New Member

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    I was convicted in 2017 and given a life sentence. I already went thru direct appeal where defendants are represented by the IL Appellate Defender for free. After that, IL defendants are on their own. I was denied a Writ of Cert and subsequently filed my petition pro se timely with the trial court. At next appearance, the judge is likely to appoint me free counsel (per IL procedure) as I have requested. However, that is 4 months out (since PC is not a priority and the trial courts are first playing catch-up with Speedy Demand cases postponed due to Covid), so I still have till then to do what I can to help myself. If that means that jumping to serve the State late will help out my petition at this point, then that is what I have to do now, before my counsel is appointed. And, that. is why I am asking. My appeal issues are significant enough that the judge acted on it relatively quickly. And, I will happily work with counsel when appointed, but if I can save myself now, then I have to do so.
     
  5. adjusterjack

    adjusterjack Super Moderator

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    Then go ahead and have it served on the state attorney.
     

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