Can the Court Deny Leave to File the Postconviction Petition for Failure to Satisfy the Cause-And-Prejudice Test ?
In People v. Smith, 383 Ill. App. 3d 1078, 892 N.E.2d 55, 322 Ill. Dec. 808 (2008), the defendant filed a section 2-1401 petition for relief from judgment.
Before summarily dismissing the petition, the trial court recharacterized the filing as a successive postconviction petition.
This court vacated the dismissal and remanded with instructions to allow the defendant the opportunity to amend or withdraw the petition. Smith, 383 Ill. App. 3d at 1084.
The defendant appeared before the court, chose to amend the petition, and provided an amended petition at that time.
The defendant also sought and received clarification on the crime for which she was convicted and the accountability theory upon which her conviction was based.
The trial court subsequently entered an order denying leave to file the postconviction petition for failure to satisfy the cause-and-prejudice test. Smith, 383 Ill. App. 3d at 1081-82.
On appeal, this court discussed the holdings in LaPointe and DeBerry, relied on here by the State, and found that they presented a different procedural posture. Smith, 383 Ill. App. 3d at 1083-84.
While the defendant did not seek leave to file her petition, we found that the trial court's order after remand implicitly acknowledged a request for leave by the defendant.
Therefore, we determined that the requirement of section 122-1(f) was met before the trial court denied leave for failure to show cause and prejudice. Smith, 383 Ill. App. 3d at 1084.
Defendant contends that, as in Smith, he originally filed a section 2-1401 petition that was recharacterized by the trial court with an order admonishing him that he may amend or withdraw the petition.
Therefore he concludes that the trial court's order implicitly acknowledged his request for leave and his claim of actual innocence must continue.