                           No. 3--05--0688

_________________________________________________________________
Filed April 8, 2008
                             IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2008

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.
_________________________________________________________________

       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 reversed and remanded.

     Thereafter, the Illinois Supreme Court entered a supervisory

order directing us to vacate our judgment and consider whether we

should review the trial court's decision to dismiss defendant's
postconviction petition for an abuse of discretion.             Upon further

consideration, we believe that we properly applied the de novo

standard to review the trial court's dismissal of defendant's

postconviction petition.

                               BACKGROUND

       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No. 3--96--0767 (2001) (unpublished order under Supreme Court Rule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.”


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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

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 postconviction 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.

                                     ANALYSIS

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

a   means    of    challenging   their       convictions    or   sentences   for

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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,

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).

      Generally, an appellate court reviews de novo a trial court’s

dismissal of a postconviction petition.        See Williams, 364 Ill.

App. 3d at 1023, 848 N.E.2d at 258.         Nevertheless, the supreme

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court has instructed us to consider whether we should apply an

abuse of discretion standard to review the trial court's dismissal

of defendant's petition, citing section 122-5 of the Code of

Criminal Procedure (Code) (725 ILCS 5/122-5 (West 2004)).      Section

122-5 of the Code provides in pertinent part:

     The court may in its discretion grant leave, at any stage

     of the proceeding prior to entry of judgment, to withdraw

     the petition.   The court may in its discretion make such

     order as to amendment of the petition or any other

     pleading, or as to pleading over, or filing further

     pleadings, or extending the time of filing any pleading

     other   than    the   original   petition,   as   shall   be

     appropriate, just and reasonable and as is generally

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

While section 122-5 gives a court discretion with respect to

several matters, including leave to withdraw a petition, it does

not address how or when a trial court may    reinstate a voluntarily

withdrawn postconviction petition.     Because our analysis of this

issue presents a question of law that we must decide through

statutory interpretation, we apply a de novo standard of review.

See Brown v. ACMI Pop Division, 375 Ill. App. 3d 276, 283, 873

N.E.2d 954, 959 (2007).

               I. Trial Court’s May 24, 2004 Order

     The State argues that we have no jurisdiction to review the


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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

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.        725 ILCS 5/122-5 (West 2004); 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.


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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    postconviction              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    postconviction

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

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

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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 our supreme court has 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.   See Johnson, 191 Ill. 2d at 270, 730 N.E.2d at 1115;

Clements, 38 Ill. 2d at 215, 230 N.E.2d at 187.

     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.

     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

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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.

                               CONCLUSION

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

remanded.

     Reversed and remanded.

     MCDADE, PJ., and O'BRIEN, J., concurring.




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