                          No. 3--05--0688
                       Filed June 29, 2007.
_________________________________________________________________

                                IN THE

                     APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 2007

PEOPLE OF THE STATE OF        )    Appeal from the Circuit Court
ILLINOIS,                     )    of the 14th Judicial Circuit,
                              )    Henry County, Illinois
     Plaintiff-Appellee,      )
                              )
     v.                       )    No. 95--CF--305
                              )
SCOTT ENGLISH,                )    Honorable
                              )    Larry S. Vandersnick,
     Defendant-Appellant.     )    Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________
     Defendant, Scott English, was convicted of first degree felony

murder and aggravated battery of a child in 1996.              In 1999, he

filed a postconviction petition.           He later filed a motion to

voluntarily dismiss the petition, which the trial court granted.

In 2004, defendant filed another postconviction petition.               The

trial court treated it as a successive petition and dismissed it on

the State’s motion. Defendant then filed a motion to reinstate and

amend his original 1999 postconviction petition.          The trial court

denied the motion.    We reverse and remand.

     Defendant, Scott English, was convicted of first degree felony

murder   and   aggravated   battery   of   a   child.    The   trial   court

sentenced defendant to a mandatory term of life imprisonment.

     On appeal, we affirmed defendant’s convictions but remanded

the case to the trial court for resentencing.           People v. English,
No. 3--96--0767 (2001) (unpublished order under Supreme Court Rule

23).    On remand, the trial court sentenced defendant to 50 years

imprisonment.

       In 1999, while his appeal was pending, defendant filed a

postconviction petition alleging that (1) he was not read his

Miranda warnings prior to being questioned by police, (2) he was

denied a fair trial because of trial and pre-trial publicity, and

(3) his trial counsel was ineffective.            Defendant also filed a

motion requesting counsel, which the trial court granted.

       Defendant’s counsel filed an amended petition, alleging new

grounds supporting defendant’s ineffective assistance of trial

counsel claim.        On August 6, 2003, defendant’s counsel filed a

motion for voluntary dismissal of the postconviction petition,

requesting that the court dismiss the petition “without prejudice.”

The trial court granted the motion.

       On   January    16,   2004,   defendant   filed   a   postconviction

petition, arguing for the first time that aggravated battery of a

child could not form the basis for his felony murder conviction

under People v. Morgan, 197 Ill. 2d 404, 758 N.E.2d 813 (2001), and

People v. Pelt, 207 Ill. 2d 434, 800 N.E.2d 1193 (2003).          The State

filed a motion to dismiss the petition, arguing that it was a

successive petition filed without leave of court and that defendant

could not satisfy the cause and prejudice test.

       On May 24, 2004, the trial court granted the State’s motion to

dismiss, finding that defendant “failed to show cause for his

failure to bring these claims in his initial post-conviction

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petition.”        Defendant filed a motion to reconsider, which the

court denied on July 23, 2004.

      On August 5, 2004, defendant filed a motion to reinstate and

amend the post-conviction petition he filed in 1999.                  The State

filed a motion to dismiss.          The trial court denied defendant’s

motion to reinstate on September 26, 2005.

      On September 27, 2005, defendant appealed.              In his notice of

appeal, defendant identified the trial court’s September 26, 2005

order as the order from which he was appealing.

      The Post-Conviction Hearing Act (Act) provides defendants with

a   means    of    challenging    their       convictions    or   sentences   for

constitutional violations.        725 ILCS 5/122--1 et seq. (West 2004).

The   Act    establishes    a    three-stage       process    for   adjudicating
postconviction petitions.        725 ILCS 5/122--1 through 122--8 (West

2004); People v. Williams, 364 Ill. App. 3d 1017, 1022, 848 N.E.2d

254, 258 (2006).

      At any stage prior to entry of judgment, the trial court may

grant leave to voluntarily withdraw the petition. 725 ILCS 5/122--

5 (West 2004).        The trial court may also enter orders allowing

parties to amend petitions and other pleadings, file further

pleadings, or extend the time of filing pleadings “as shall be

appropriate, just and reasonable and as is generally provided in

civil cases.”      725 ILCS 5/122--5 (West 2004).

      The Act contemplates the filing of only one postconviction

petition.    People v. Spears, 371 Ill. App. 3d 1000, 864 N.E.2d 758,


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762 (2007).     A defendant may file a second postconviction petition

only if he receives leave of court.        Spears, 371 Ill. App. 3d 1000,

864 N.E.2d at 762.

     When a trial court dismisses a postconviction petition, the

defendant must file a timely notice of appeal to vest the appellate

court with jurisdiction to review the dismissal.              See People v.

Fikara, 345 Ill. App. 3d 144, 152, 802 N.E.2d 260, 266 (2003).            We

review de novo a trial court’s dismissal of a postconviction

petition.      Williams, 364 Ill. App. 3d at 1023, 848 N.E.2d at 258.

                   I. Trial Court’s May 24, 2004 Order

     The State argues that we have no jurisdiction to review the

trial court’s May 24, 2004 order because defendant’s notice of

appeal was untimely.

     When a final order is entered, Supreme Court Rule 606(b)
requires that a notice of appeal be filed within 30 days of entry

of the order or disposition of a timely filed motion attacking the

judgment. 188 Ill. 2d R. 606(b).           Here, defendant filed his notice

of appeal on September 2005, over a year after the trial court

denied   his    motion   to   reconsider    the   dismissal   of   his   2004

postconviction petition.       Thus, defendant did not timely perfect

his appeal of the trial court’s May 2004 dismissal of his petition.

We do not have jurisdiction to review that order.         See Fikara, 345

Ill. App. 3d at 152, 802 N.E.2d at 266.

            II.     Trial Court’s September 26, 2005 Order

     Defendant contends that the trial court erred by denying his

motion to reinstate and amend his initial postconviction petition


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filed in 1999 because the motion was filed within one year of his

voluntarily dismissal.

      Section 122--5 of the Act gives a court discretion to allow

the voluntary withdrawal of a postconviction petition at any time

before judgment is entered.        See People v. Wright, 149 Ill. 2d 36,

54, 594 N.E.2d 276, 284 (1992); People v. Partee, 85 Ill. App. 3d

679, 683, 407 N.E.2d 215, 219 (1980).                 Voluntary withdrawal of

postconviction petition is equivalent to a voluntary dismissal in

a civil case.    Cf. People v. McClure, 218 Ill. 2d 375, 843 N.E.2d

308 (2006) (voluntary withdrawal of a petition to rescind summary

suspension is tantamount to a voluntary dismissal under section 13-

217 of the Code of Civil Procedure).                  When a court allows a

defendant   to   voluntarily       withdraw      an   initial   postconviction

petition, the defendant can refile and reinstate the petition and
have it treated as the original.           See Partee, 85 Ill. App. 3d at

683, 407 N.E.2d at 219; People v. Johnson, 11 Ill. App. 3d 510,

514, 298 N.E.2d 346, 349 (1973).           However, the Act does not state

when a defendant may refile a voluntarily withdrawn petition.

      Because post-conviction proceedings are “civil in nature”

(People v. Johnson, 191 Ill. 2d 257, 270, 730 N.E.2d 1107, 1115

(2000); People v. Clements, 38 Ill. 2d 213, 215, 230 N.E.2d 185,

187   (1967)),   a   court   may   enter    an    order   in    post-conviction

proceedings “as is generally provided in civil cases.” 725 ILCS

5/122--5 (West 2004).        This means applying the provisions of the

Code of Civil Procedure (Code) (735 ILCS 5/1 et seq. (West 2004)).

See McClure, 218 Ill. 2d at 383, 843 N.E.2d at 313.              Of course, the

                                       5
Code cannot conflict with provisions of the Act.           See Clements, 38

Ill. 2d at 215-16, 230 N.E.2d at 187; People v. Deming, 87 Ill.

App. 3d 953, 957-58, 409 N.E.2d 352, 355 (1980).           But the Code can

be looked to for guidance if the Act is silent concerning a

procedural matter.       See 725 ILCS 5/122--5 (West 2004) (allowing

courts to enter orders in postconviction proceedings as in “civil

cases”).

     In McClure, the Illinois Supreme Court held that section 13-

217 of the Code allows a driver who voluntarily withdraws his

initial petition to rescind a statutory summary suspension to

refile the petition within one year because summary suspension

hearings are “civil in nature” and “shall proceed in the court in

the same manner as in other civil proceedings.”            See McClure, 218

Ill. 2d at 382-85, 843 N.E.2d at 312-14 (citing People v. Moore,

138 Ill. 2d 162, 167, 561 N.E.2d 648 (1990); 625 ILCS 5/2-118.1(b)

(West   2002)).         Similarly,    since   we    have   determined   that

postconviction proceedings are civil in             nature, the one year

savings clause set forth in section 13-217 of the Code applies to

this case.

     Section 13-217        provides that a plaintiff who voluntarily

dismisses his action “may commence a new action within one year *

* * after the action is voluntarily dismissed by the plaintiff.”

735 ILCS 5/13--217 (West 2004). A          postconviction petition timely

filed   within    one   year   of   voluntarily    withdrawing   an   initial

petition under section 13-217 should not be dismissed.

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     Here,     the    trial    court     granted    defendant’s   motion    to

voluntarily dismiss his initial postconviction petition on August

6, 2003.     On August 5, 2004, defendant moved to reinstate and amend

that petition.        His motion was filed within one year of the

voluntary withdrawal; it should have been allowed.              We remand the

cause   to    allow   the     trial    court   to   reinstate   the   original

postconviction petition, with amendments,              and treat it as an

initial petition.

     The order of the circuit court of Henry County is reversed and

remanded.

     Reversed and remanded.

     MCDADE and O'BRIEN, JJ., concurring.




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