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Prisoner turns out to be appealing after all

June 25, 2013 by in General

The circuit court dismissed an incarcerated criminal defendant’s petition for relief from judgment under 735 ILCS 5/2-1401 and denied his motion for reconsideration. The defendant filed a notice of appeal, which was file-stamped on December 21, 2011 (a few days past the 30-day appeal deadline). The defendant included a notarized certificate with his notice stating that he put his notice in the mail at the prison on December 13, 2011 (within the 30-day deadline to appeal), properly addressed for mailing to the state’s attorney and the clerk of court through the United States Postal Service. However, he did not state that the packages included proper prepaid postage.

Where a notice of appeal is received by the court clerk after the deadline, Illinois Supreme Court Rule 373 provides that the notice is timely if it was timely mailed and includes proof of mailing pursuant to Illinois Supreme Court Rule 12(b)(3). Rule 12(b)(3) requires a proof of service by the person “who deposited the paper in the mail” stating the time and place of mailing, the complete mailing address, and the “fact that proper postage . . . was prepaid.”

The court observed that an incarcerated person does not have individual control over either the placement of postage on envelopes or the delivery of the envelopes to the postal service, functions that are accomplished by the prison administration. In this case, the court found that the defendant did everything that he could do, which was to place the mail in the hands of the prison staff, “at which point he was dependent upon their actions to place it into the United States mail.” Accordingly, the court concluded that the defendant acted properly and as fully as he could – as evidenced by his notarized certificate – to timely file the notice of appeal. Thus, under Rule 373, the notice was timely filed and the appellate court had jurisdiction.

People v. Maiden, 2013 IL App (2d) 120016.

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