No. 3--02--0297 _________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2003

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 14th Judicial Circuit,

					       )  Rock Island County, Illinois

	Plaintiff-Appellee,        ) 

					       )

	v.                         )  No. 95--CF--781

									  ) 

DEWAYNE C. WILBURN, 	       )	Honorable

	               		  )  James T. Teros

	Defendant-Appellant.       )  Judge, Presiding

________________________________________________________________

	JUSTICE HOLDRIDGE delivered the Opinion of the court:

________________________________________________________________

	The defendant, DeWayne C. Wilburn, was convicted of

aggravated battery with a firearm and armed violence.  720 ILCS

5/12--4.2; 33A--2 (West 1994).  The trial court sentenced

defendant to 25 years’ imprisonment on each offense, to be served

consecutively.  Defendant filed an amended postconviction

petition, which was dismissed as untimely.  Defendant appeals,

contending the trial court erred in dismissing his petition.  We

reverse the trial court’s judgment, vacate defendant’s sentence

on his armed violence conviction and remand for resentencing.

	FACTS

	Defendant was convicted of aggravated battery with a firearm

and armed violence based on an incident in which he shot the

victim in the leg with a handgun and robbed him of approximately $45 in cash.  Defendant was sentenced on February 7, 1996, to

consecutive 25-year terms of imprisonment.  

	At that time, armed violence with a handgun was punishable

by 15 to 30 years’ imprisonment.  720 ILCS 5/33A--3(a) (West

1996).  The legislature enacted this sentencing provision by

Public Act 88--680 (Pub. Act 88--680, eff. January 1, 1995).

Prior to the enactment of Public Act 88--680, the sentencing

range for armed violence with a handgun was 6 to 30 years’

imprisonment.  720 ILCS 5/33A--3(a); 730 ILCS 5/5--8--1(a)(3)

(West 1992). 

	Defendant’s convictions were affirmed on appeal.  People v. Wilburn, No. 3--96--0224 (1997) (unpublished order under Supreme Court Rule 23).  Our supreme court denied defendant’s petition

for leave to appeal on October 1, 1997.  					 	On April 26, 2001, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act.  725 ILCS

5/122--1 et seq. (West 2000).  The trial court appointed counsel for defendant, and an amended petition was filed.  In his amended

petition, defendant asserted his armed violence sentence should

be vacated because Public Act 88--680, which amended the

sentencing provisions for armed violence, had been held

unconstitutional in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999).  Defendant further asserted that the late filing of his postconviction petition was not due to his culpable

negligence because Public Act 88--680 was not declared unconstitutional until after the deadline for filing his petition

had passed.

	The trial court granted the State’s motion to dismiss

defendant’s petition, finding it was not timely filed.

	DISCUSSION

	On appeal, defendant contends the trial court erred in

dismissing his postconviction petition as untimely because the

armed violence sentencing statute was declared unconstitutional

after the deadline for filing his petition had passed.

	Under the Post-Conviction Hearing Act, proceedings must be commenced within:

	"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 3 years from the date of conviction,

whichever is sooner, unless the petitioner alleges

facts showing that the delay was not due to his or her

culpable negligence."  725 ILCS 5/122--1(c) (West

2000).  

	Lack of culpable negligence is difficult to establish. 

People v. Burris, 315 Ill. App. 3d 615, 734 N.E.2d 161 (2000).  However, the delay in filing a postconviction petition may be

excused when the petition is based on the issuance of a new case

which changes the law applicable to the defendant’s claim.  See

People v. Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (2001); People v. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (1998).   	

	We generally will not disturb a trial court’s determination

as to whether a delay was a result of the defendant’s culpable

negligence unless that determination is manifestly erroneous. 

People v. Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997).  However, the trial court’s decision in this case is not based

upon fact-finding or a credibility determination.  Instead, the

issue is whether the trial court correctly applied the law to the

established facts.  Therefore, the correct standard of review in

this case is de novo.  See Branson v. Department of Revenue, 168 Ill. 2d 247, 659 N.E.2d 961 (1995) (issues of fact are reviewed

deferentially while questions of law are reviewed de novo); People v. Woods, 306 Ill. App. 3d 1144, 715 N.E.2d 1218 (1999).

	It is undisputed that defendant’s petition was not filed within the time limits set forth in the Act.  Defendant asserts

he was not culpably negligent in filing the petition after the

statutory time limit had expired.   

	Initially, we find defendant was not culpably negligent in

failing to file his petition prior to the Cervantes decision because his substantive claim was established by that decision. 

We conclude it would be unfair to require defendant to file his

petition based on the change in law occasioned by Cervantes before that decision was even issued.  

	However, defendant did not file his postconviction petition until April 26, 2001, approximately 16 months after the Cervantes decision was issued.  In a similar case, this court held a defendant was not culpably negligent in filing his postconviction petition two months after the Supreme Court issued a decision which established his claim.  See Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (defendant filed a postconviction petition contesting

the constitutionality of his extended-term sentence following the

decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)).  Additionally, the Second District Appellate Court has held that a trial court did not err in

finding a defendant was not culpably negligent in filing his

postconviction petition approximately 11 months after a change in

the law established his claim.  Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (defendant filed his postconviction petition 11

months after our supreme court issued an opinion clarifying the law in the area of double jeopardy).  ReRecently the First distrrict also 	 

	The Post-Conviction Hearing Act contains a "safety valve"

which "allows a defendant to avoid the bar of the statute of

limitations by 

	For further guidance, we note that the gestation period for an African elephant is approximately 22 months.  The New

Encyclopaedia Britannica, vol. 4, at 442 (15th ed. 1994).  In

reviewing the record, we find the effort defendant was required

to exert in producing his postconviction petition was roughly

equal to the effort required to produce an African elephant. 

Therefore, the delay of 16 months in filing the petition was a

reasonable period of time for the effort required.  	In sum, we conclude defendant was not culpably negligent in

filing his petition 16 months after his claim was established in

Cervantes.  Accordingly, the trial court erred in dismissing defendant’s petition as untimely.      

	Ordinarily, we would remand this matter to the trial court for a hearing at the third stage of postconviction proceedings. 

However, this matter does not present any factual dispute which

requires an evidentiary hearing.  Our supreme court has held that

Public Act 88--680 violates the single subject rule of the

Illinois Constitution and, therefore, is void.  Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265.  Defendant is entitled to be resentenced in accordance with the sentencing scheme in place

prior to the enactment of Public Act 88--680.  See People v. Ruiz, 312 Ill. App. 3d 49, 726 N.E.2d 704 (2000) (when an unconstitutional amendment to a statute is enacted, the law prior

to the adoption of the amendment remains in force).  Therefore,

we vacate defendant's sentence for armed violence and remand the

matter to the trial court to resentence defendant under the prior

version of the sentencing statute.  We make this ruling pursuant

to our supervisory authority under Illinois Supreme Court Rule

615(b)(2).  134 Ill. 2d R. 615(b)(2).

CONCLUSION

	For the foregoing reasons, we reverse the judgment of the

Rock Island County circuit court dismissing defendant’s

postconviction petition, vacate defendant's armed violence

sentence and remand the matter to the trial court for

resentencing.

	Reversed; sentence vacated and cause remanded. 

	mMcdCDAEDE, P. J., and SLATER, J., Cconcur.

ONCc