Consequences of Filing Post Conviction Petition After Deadline Has Passed
In People v. Davis, 351 Ill. App. 3d 215, 217, 813 N.E.2d 1149, 286 Ill. Dec. 456 (2004), the defendant filed his postconviction petition eight months after the statutory deadline had passed, contending that his trial counsel was ineffective for failing to file an appeal.
The defendant alleged that he was not culpably negligent, because he believed that his attorney had filed an appeal.
The State, however, pointed to a letter, dated more than two years before the defendant filed his petition, in which the defendant admitted that his attorney was not assisting in an appeal.
The defendant then argued that a discovery rule should apply, allowing him to file his petition within three years of learning of his claim. Davis, 351 Ill. App. 3d at 216-17.
The Court held that the civil discovery rule does not apply to postconviction proceedings. Davis, 351 Ill. App. 3d at 217.
Accordingly, the period to file a claim is not tolled by the failure to discover a claim. Davis, 351 Ill. App. 3d at 218.
However, we did not hold that the failure to discover a claim within the statutory period would automatically preclude an exception based on the defendant's lack of culpable negligence.
To the contrary, we stated that "[s]ection 122--1(c)'s exception for delay that is not due to culpable negligence undoubtably covers cases of delay that is an unavoidable consequence of the late discovery of a claim." Davis, 351 Ill. App. 3d at 218.
Thus, the Court stated that, to determine the issue, we look at both the circumstances surrounding the discovery of the claim and how promptly the defendant took action after that discovery. See Davis, 351 Ill. App. 3d at 218.
The Court then determined that, under the facts of the case, the defendant was culpably negligent because he knew of the claim for more than two years before the statutory deadline had passed, but did not file his petition during that time. Davis, 351 Ill. App. 3d at 218.