forty two fourteen zero one petition is subject to dismissal for want of factual or legal insufficiency and therefore the trial court's decision here declined to reach characterized the defense two fourteen zero one petition it said dismissing it on the state's motion was assumption that it would be treated as a p c and that it should be treated as the p c but he was not appointed as post conviction counsel if you recall the procedural history of this case the defendant filed pro se two fourteen zero one petition for relief from judgment through labeled as such he definitely intended to proceed with his intent to proceed under section two ports you know one court appointed counsel in the next month in november and then in december the state moved to dismiss the p c or move to dismiss the two fourteen zero one i that was at the hearing on the people's motion to dismiss the two fourteen zero one so both the state the people and the court were proceeding as though this were a petition for relief from judgment in fact this was a hearing them a hearing was a hearing on the present and the court is again a status hearing they were waiting for defense counsel to file his response to the people's motion to dismiss the two fourteen zero one petition and the court said ok i have on my show a petition for relief from judgment and  beyond reasonable to assume that the court of the status hearing various status hearing was the converting the petition into a post conviction in fact the very fact that they discussed this that they were made argument for and against could they had the court file that did not have discretion to be characterized i disagree with that statement your right of the court there's nothing in the record to support any any understanding that the court didn't know it had the discretion again then necessarily because the parties were making arguments for and against three characterization at that hearing into may cite any cases in any case law with regard to their positions they did not but of course we have to presume that the trial judge knows and follows the law and the fact that there's nothing course in the record to rebut that presumption here in the defendant is offered nothing and again re characterization is not new it didn't come into being with people versus shells term as we pointed out if every time a defendant browses to fourteen no one petition in the trial court refuses to read characterize it as a conviction petition and dismisses it can the defendant always thereafter file  petition there's no there would be no reason why not to the dismissal of the section two fourteen zero one petition is not going to bar a subsequent post conviction it for example a successive petition either any time bars petition at that time or any time thereafter and in fact his counsel conceded as much of the may hearing where he said if you like your router we can start over it's where i want to do it over again but it would be easier to do it this way and the court refuse the court declined to porcine one petition and then when defendant subsequently filed to what he called supplement to post conviction petition and then ultimately responded to the people's motion to dismiss the state also move to strike those supplemental pleadings as non responsive and so at the hearing the state went forward and said look you can't do this and one of the good reasons the state brought forth at that point is if you allow say in a situation like this with two fourteen zero one petition and the court exercise its discretion to appoint counsel for that then if defense counsel simply delays beyond the ninety days in the post conviction hearing the act of summary dismissal on section two point one and then file some kind of i would start to say first of all that because this petitioner did was represented by counsel from the outset i speaking of a different hypothetical this petitioner of course was represented by counsel so we've taken the position of the appellate court took the position as well that you wouldn't need hearing on that motion and ultimately dismissed on the state's motion we can agree that the trial court is not required to read characterize but why should the refusal to do so n reviewable as you we're not arguing that it's not reviewable where we're we're arguing that it should be reviewed for an abuse of discretion but that that discretion is very very broad in light of the language in section one twenty two dash post conviction here in the act that says the court not even consider need not even consider reach characterizing a petition if it's not labeled as  counsel conceded that he could still do so there would be any successive petition bar is a result of the judgment of the two fourteen zero one but most importantly relief on the substantive claim here that including the weight of the waste product and the in fact it does meet the standards again that that's consistent with this court's recent decision in people first assuming not saying that the act ninety day rule cannot apply until pleading is read characterized so in order for the post conviction act to in some that is this court recently affirmed in people versus warming up in the trial courts under no obligation to reach characterize a petition that can otherwise be dismissed about procedural grounds and here the trial court did just that dispose of the defendant's two fourteen zero one petition on procedural ground insist that the trial court consistently treated mr still fals original pleading filed october twenty seventh two thousand and six as a two fourteen zero one petition the state is wrong on march twenty first two rule six five one see this court's will six five one see pertains only to post conviction proceedings it has no application to two fourteen zero one proceedings the petitioner and his counsel consistently express their intent to proceed on to the post conviction hearing act as early as the summer eleventh two thousand says along with his response to the state's motion to dismiss defense counsel filed what he styled in his headings as supplements to post conviction petition eighteenth two thousand and seven he accompanied both of those pleadings with rule six five one see certificates these pleadings were filed within approximately one month of the appellate court's decision on direct appeal and therefore they were timely within the meaning of section one two two one c of the post conviction here and that they were also filed after the trial court specifically granted counsel leave to file them on march twenty first and april eleventh two thousand and seven therefore the facts in this case affirmatively rebut any presumption or the state's insistence that this that the circuit court treated defend its petition as a section two fourteen zero one petition jerry still filed a petition for relief from judgment he did state it was filed under section t reasonably determined after review of the pleadings that it was appropriate to recast mr still feels pleadings as oppose condition proceeding because it raised constitutional claims cognisable under the postcondition hearing a now in his motion to strike filed a full nine hundred two thousand and seven and in his argument before the trial court during a hearing on may second two thousand and seven the prosecutor asserted that allen oil law did not permit  fourteen zero one petitions as post convention petitions the circuit court accepted those arguments without additional independent analysis and dismissed mr socials pleadings on that basis now neither the prosecutors arguments nor the viewpoint that that's that's a peculiar remedy and what i was about suggest is that based on the crazy circumstances of this case there are several appropriate remedies that might be available here and you know i would i would agree that this court is is is free given given the presidents and the controlling law and given that supervisory authority to to order whatever every man for state's proceeding i recall in the state brief that they know that we didn't object to that you know well i didn't object because i don't object that's that's a reasonable remedy i mean if you send it if you send it back to the circuit court to consider the these police as post conviction pussy proceedings well you know it's kind of interesting because that eliminates the problem that the state seems to see that i don't see about skirting the ninety day requirement i mean that be a reasonable remedy you send it back to the circuit court to treat these pleadings collectively as post convention proceedings and make a first a situation you know it is this miss as frivolous impact we  merit at least he has another right to appeal that decision and what in this record counsel indicates what in this record zach really indicates that the throw jurors didn't think he had discretion i notice that when the petition is dismissed they can find it here he stated the defense attorney cannot caption a supplemental plaiting as opposed conviction petition and thereby magically honor i read and i think i think at least reasonable reasonable people can disagree i read that order as basically for me or agreeing with our latching on to the prosecutor's arguments in the prosecutor's motion to strike and the prosecutor's arguments during during the hearing on that motion to destroy as merely a second actually did they did that motion itself say you judge is going to have or any discretion to recast where did that motion say th counsel didn't have any authority to recast it to fourteen a one into a p c if that motion said counsel counsel cannot do it because illinois law does not provide for it that's incorrect this court provided for that remedy under people  that's a long way from saying that they were saying the judge didn't have discretion or even further from saying that the judge is saying he didn't have discretion based on this record isn't it now i disagree i respectfully disagree here i  that if we feel the judge was exercising discretion in not recasting this is a two fourteen zero one that the state has a point here owes certainly it if that's a conclusion that you reached certainly the state has a point now i would not go as far as to say i was i was kind of interested in listening to counsel's argument that she clarified they are not arguing for unfettered discretion well that's a good develop because it seems like that's what they were arguing in their brief in the reply and that's very problematic to meet and also the whole purpose of recasting is to prevent present a situation where a certain amount of it can be made to the defendant so he doesn't take the p c after yes there were no such it managements given in this case were there were not is that a fact then that tends to suggest he wasn't recasting one way or the other yes or sizing discretionary i'm not in yes the argument is look at what he did that's an exercise of discretion in the state would say look at what he did that is anything but an exercise discretion in making trial judge was not aware of this court shows from decision there's absolutely nothing in the record indicating that either prosecutor or the trial judge was aware of shell strong and on that no it's not noticed i don't think it's necessarily a predicate but clearly under sjostrom was a judge reaches the point where he's considering recasting and the way i least we i don't even have a hard time say ordering somebody to exercise discretion i suppose that's what you would have us too it i mean you know under the very unique circumstances of this case i don't think that's said whether he does whether he doesn't have the discretion in the same manner doesn't reveal whether he did he thought he didn't have to suppress double negative yes it could could you could you rephrase the question so i make that's yeah this essentially that's your argument yes and i'm asking it's a record of you know the other the other side and i can't i can't see anything in the record indicating that he knew dismissal is basically glomming onto the prosecutor's incorrect argument in his motion to strike and in that hearing during may second that the way law doesn't provide for this now my i think a reasonable understanding and my understanding of illinois law doesn't provide for this is that a court has no discretion to allow the us that's my friend us when what i believe the judge latched on to the would be within the ninety day period for days for dismissal yes it would start from that point yes but you would really have a supposed to know rule that a judge not only has a right to exercise discretion but  has to indicate every time on the record that he is using his discretion in a particular instance and let me you were the appellant me appellate court yes all right yes so you have the obligation to provide something in the record to indicate i know you feel that you have based on this motion i think you admit that there is nothing the judge said one way or the other right and we have a proposition of law that indicates that we assume we assume that the trial judge with if there's nothing to the contrary we assume the trial judge new law so for you to for you to say he didn't mention shell's room he didn't mention that he had discretion unless you can point to something in the record that convinces this court that he didn't know we had to strip discretion why would we use that proposition to say he knew the law he exercised his discretion and then the broader question is the one i asked first i mean in any case in which a would this stand for that would would if we rule the way you would have us rule any case in which a judge has the right to exercise discretion must he indicate on the record that he knows he has discretion i mean we have we have many cases come before us on appeal that the standard to review is abuse of discretion are we going to have to look and see and make sure that bad judge knew we had discretion otherwise there's a reversal just based on the fact he didn't say on honor my feeling is that if you if you if you look at the record overall even if you look at it as sort of in an ethical pose as as to whether or not he indicated he had discretion to recast he certainly put the defendant and defense counsel in the frame of mind that the trial court was going to do that because they repeatedly from the point of december eleventh two thousand and six on stated that they wanted to proceed out of the post conviction hearing at the state did not object to those statements and the trial court basically allowed them to proceed and in fact granted then leave to file such pleadings by a specific date now so i think as far as getting to your question do you have to pronounce a broad rule i don't think that's necessarily true to resolve this case it in this case you can pronounce it i will that what the trial court did here was muddled it was confusing possibly unintentionally but i think an objective view circumstances you can order some tight and that addresses those problems one of the additional unique circumstances here seems to be that even though we've talked about the prior judges actually you have three trial judges who were involved here that made different rulings and different times and it's pretty apparent from looking at the transcripts that each one said what do we have here yes defense counsel would say well this is in the nature of a post conviction let's what what we're unique and how does that factor into the whole situation the fact that we do have different judges doing different things when you've indicated that the trial judge misled the fence counsel the thinking  still instances instances where recasting it as a post conviction petition is appropriate in order to promote the remedial purposes of the act and to enable the defendant to to best articulate  constitutional claims now as far as different judges making different rulings in the case without with all due respect i think i think that's irrelevant to the critical rulings because judge mccain e who alternately granted the state's motion to dismiss was the same charge who ordered defense counsel specifically on the record and the written word to file a rule six five one  certificate and during that hearing it in which that took place it if i remember correctly i hope i'm remembering correctly that may have been the hearing where we're mr stokols counsel was not present due to illness but  cook in the colloquy between judge mccain e and defend it there was this conversation is this a post convention proceeding and the senate reiterated his position the one that he and his counsel had consistently stated from december eleventh two thousand and six on that yes this is a post conviction proceeding again it at that point it's my recollection that it was judge mccain the same judge who made the ultimate ruling in this case who granted counsel leave to file additional pleadings which he had been informed would be in the nature of a post conviction because petition and were counsel to file a six five one c certificate that's that's the best way i can answer that question had seems that defendant is making two arguments here actually we can't decide which one it is whether the court implicitly we characterize it as a post conviction petition or whether the court was wholly unaware that it even had discretion to be characterized as counsel with regard to that on the may seventh of the judge mccain he said the defendant's attorney cannot caption his supplemental pleading is a post conviction petition and there by magically transform a pleading so he's saying that he can't do it for some reason  which we don't he doesn't explain why he doesn't explain why but it can we can look to the parties arguments after hearing that motion to dismiss and i have to say i don't read the state's argument at that hearing the same way defense counsel does i don't believe that the state argued at that hearing that the judge did not have discretion what he said was it was in procrit inappropriate because he said look the defendant is stuck with what he filed he filed a two fourteen zero one we filed a motion to dismiss but he just said he cannot hear but he didn't say that he didn't have the discretion i disagree with defense counsel's characterization of that statement as as meaning that he was unaware that he had to discretion and again we have to assume that the court knows and paul's law is justice thomas was saying counsel said well the record is really an echo of poise here and if in fact that is the case then actually the people would prevail in this case because based on that chris dumps in that the court knew and followed the law and there's nothing in the record to rebut that presumption defense counsel is presented nothing in this record to show that the trial court was unaware that it had discretion that it had the discretion to reach this two fourteen zero one petition when in fact the law that authority to re characterize again did not correct but here we said that we definitely would need a line of demarcation lace so in people versus what i mean i think this court held that well the ninety day period runs from the time that treated as a p c but he was the only one laboring under that assumption on this record both the people and the court were proceeding as though it were a two fourteen  healthfully it seems to me that the one thing we could agree on here is that there is a level of confusion regarding which position yes absolutely you're on it we're not arguing that these proceedings are crystal clear just that it's apparent that the court didn't that would it make any sense to remain on this matter to try to determine determine what the trial judge knew or did know i mean was doing it's one possible outcome but based on the presumption that the court knows and follows the law and based on the fact that the defendant hasn't rebutted that presumption that would really be unnecessary in this situation we're not arguing again that the proceedings here are crystal clear but just that the trial it's plain that the cry of court didn't reach characterize the petition as a post conviction petition and that he exercise discretion we could we could find that as well correct if if in fact this court decides in the future that group that we probably took this case for the term and one and one not with the discretion discretion has been exercised my understanding is that the court took the case to determine whether there was abuse of discretion re characterizing again i i believe the defense counsel and i read the record differently or read the state's argument at that hearing differently and i i would refer the court in the white brief there's a transcript of that hearing beginning at page eight forty six know where does he say that the court has no discretion and defense counsel was not misled in any way by these proceedings it's plain that he was just operating under assumption that that's the way these things always it's the way these things usually do and that's the way i thought it was going to happen here procedures that apply to each a very different and so the court could not abuse its discretion here by treating petition in as a court into its label as a two fourteen