{
  "id": 8499698,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARDELL MONTGOMERY, Defendant-Appellant",
  "name_abbreviation": "People v. Montgomery",
  "decision_date": "1992-08-13",
  "docket_number": "No. 4 \u2014 92\u20140167",
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    {
      "cite": "1991 Ill. Laws 2855",
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  "last_updated": "2023-07-14T16:53:50.540896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "GREEN, P.J., and KNECHT, J., concur."
    ],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARDELL MONTGOMERY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LUND\ndelivered the opinion of the court:\nDefendant Wardell Montgomery appeals from an order of the circuit court of Livingston County dismissing his petition for post-conviction relief because it was not timely filed. The post-conviction petition was notarized December 31,1991, but not postmarked until January 4,1992.\nEffective January 1, 1992, section 122 \u2014 1 of the Code of Criminal Procedure of 1963 was amended to provide as follows:\n\u201cNo proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 1, amended by Pub. Act 87 \u2014 580, \u00a71, eff. Jan. 1, 1992 (1991 Ill. Laws 2855, 2856).\nPrior to January 1, 1992, defendant would have had 10 years after the final judgment to file the post-conviction petition.\nDefendant contends the petition should be allowed to be filed because of its notarization on December 31, 1991, and, in the alternative, argues that he should at least be allowed to amend the petition to allege facts tending to excuse the delay.\nDefendant was sentenced on April 4, 1988, and his conviction was affirmed by our court\u2019s decision in People v. Montgomery (1988), 176 Ill. App. 3d 367, 377, 531 N.E.2d 177, 184.\nWe have held that the timely deposit of a pleading in the prison mail system is adequate to comply with filing deadlines. (People v. Pagel (1990), 197 Ill. App. 3d 305, 307-08, 553 N.E.2d 1110, 1111; People v. Easley (1990), 199 Ill. App. 3d 179, 182, 556 N.E.2d 802, 804.) We have just so held with respect to another petition for post-conviction relief. (People v. Johnson (1992), 232 Ill. App. 3d 882.) We will not extend that ruling to give the same status to the date of notarization.\nIn this appeal, there is a suggestion that the petition was placed in the prison mail on December 31, 1991, but facts so stating were not alleged in the petition, for purposes of showing that the delay was not due to defendant\u2019s culpable negligence. The State contends this failure to allege should now prohibit setting forth justification for delay. We disagree.\nIf the petition was placed in the mail on December 31, 1991, and processed immediately, there would be reasonable expectation of arrival of the petition at the clerk\u2019s office on January 2, 1992, the first court day of 1992, in which case no excuse would need to be set forth. We will not charge defendant with assuming poor mail service.\nHowever, as we have said, the December 31, 1991, mailing is only suggested. We find it necessary to remand, to allow the defendant an opportunity to amend the petition solely to allege facts showing that the delay was not due to his culpable negligence.\nReversed and remanded with directions.\nGREEN, P.J., and KNECHT, J., concur.",
        "type": "majority",
        "author": "JUSTICE LUND"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas, of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Thomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARDELL MONTGOMERY, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 92\u20140167\nOpinion filed August 13, 1992.\nDaniel D. Yuhas, of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "1101-01",
  "first_page_order": 1121,
  "last_page_order": 1122
}