ERWIN LAW FIRM, LTD.​​

122 S. Locust Street, Suite C

Sycamore, IL 60178​

Tel: 847-977-6298 (Text Available)

brian@erwindefense.com

 

***Available 24/7 for consultation 

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Disclaimer: This website is designed for general information purposes only and should not be construed as legal advice. Contacting me or communicating through the use of this website does not create an attorney-client relationship. Please do not send confidential information to me until an attorney-client relationship has been established. An attorney-client relationship is established when we personally meet to discuss your matter. State laws are constantly changing, please contact me to verify the laws you are researching. Case results depend on a variety of factors unique to each case and the results of any case do not guarantee or predict a similar result in any future case.

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Post-Conviction Relief

Post-conviction petitions are a way to challenge a conviction or sentence based on violations of either Federal or State constitutional rights that were not addressed on direct appeal of the conviction or sentence. If the Appellate Court decided the issues raised could have been in the Appellate Court and were not, you typically cannot raise the issues in a post-conviction petition. However, there are three exceptions to this general rule:

  • If fundamental fairness requires the petitioner to be allowed to raise the issue;

  • If the reason the issue was not raised was because of ineffective assistance of counsel; or

  • If the facts relating to the claim do not appear on the face of the original Appellate record.

Post-Conviction Relief is one of the few attempts to challenge a conviction or sentence and to seek a new trial. When challenging your case from the onset, the first steps begin with a challenge in the Trial Court with a motion to "take back the plea of guilty" or through a JNOV (Judgment Nothwithstanding the Verdict). If you are unsuccessful at this attempt, then a direct appeal may be taken and filed to an Appellate Court and possibly the Supreme Court. If an appeal attempt fails, clients can look to challenge the case again in the Trial Court. A post-conviction challenge is filed and raised in the County and Trial Court where the case originated. A Post-Conviction Petition has (3) stages and the State's Attorney's Office has the ability to defeat the Petition through the second and third stages. Having a knowledgeable attorney to file and argue your Petition is critical. The first stage is filing a legit issue. The second stage deals with arguing the issue and the third stage is an evidentiary hearing.

Post-Conviction Petitions Must be Timely Filed

You must submit your Post-Conviction Petition on-time. The Petition must be filed either:

  • Within (3) years of the date of conviction - if you did not file a direct appeal of your conviction or sentence.

  • Within (7) months of the date of the final judgment in the Appellate Court - if you filed a direct appeal, but you did not file a petition for leave to appeal (PLA) to the Illinois Supreme Court. (The exact time frame is 35 days from the date of the final judgment plus an additional 6 months.)

  • Within (9) months of the final disposition from the Illinois Supreme Court - if you filed a direct appeal and a petition for leave to appeal (PLA) to the Illinois Supreme Court . (The exact time frame is 90 days from the Supreme Court’s disposition including a denial of a PLA plus an additional 6 months.)

  • Within (6) months of the conclusion of any proceedings in the United States Supreme Court.

There are however circumstances that allow a late filing of a post-conviction petition beyond the deadlines stated in the Post-Conviction Hearing Act. One way is called “culpable negligence," which is synonymous with recklessness. You must show to the Court that the reason you were unable to file the petition on time was due to circumstances outside your control.

Another circumstance is by an "actual innocence claim." This argument stems from newly discovered evidence that you are actually innocent of the crime for which you were convicted. The evidence must be newly discovered, was not available at the original trial, and you could not have discovered the evidence sooner. It must also be "material and noncumulative."​ The evidence must also be something that when considered with all of the other evidence would probably lead to a different outcome.

If you or someone you know believes they are eligible to seek Post Conviction Relief or have questions, please contact me to discuss your case at (847) 977-6298.