## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Perez , 2013 IL App (2d) 110306

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. IVAN PEREZ , Def

endant- Appellant.

District & N o. Second District Docke t No. 2-11-0306

Filed Marc h 19, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The o rder dismiss ing defe ndant’s postconviction petition alleg ing the denial of eff

ective assistance of appellate counsel was void on the g round that the di smissal was not issued within 90 day s of t he date the petit ion

was filed as require d by statute and the cause was rema nded for secondstag e proce eding s, notwithstanding the fac t that the trial court signe d an order dismiss ing the petition as frivolous and patently without merit on the ninetieth day afte r the petition was filed, since the circ uit cler k did not stamp the order as “filed” until a day later, a nd that date, a s ref

lected by the circ uit cler

k’s stamp, satisfied the essential elements for effec t i ve court a ction.

Dec ision Under Review Appea l from the Circuit Court of Kane County
, No. 04-CF- 694; the Hon. T. J ordan G allagher, Judge , presiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Alan D. Goldberg
, and Allison L .S. Shah, both of State Appellate Def ender ’s Off

ice, of Chicag o, for a

ppellant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and J oan M. Kripke, both of State’s Attorn ey s Ap pellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE HUTCH I NS ON delivere d the judgme nt of the court, with opinion.
J ustice McL are n concur

red in the judg ment and opinion.
J ustice Hudson dissented, with opinion.

OP INION

¶ 1 D e f

e n dant, Ivan Perez, appea ls the first-stag e dismiss al of his postconviction petition. He contends that the order dismiss ing his pe tition is void be cause the trial court failed to issue the di smissal within 90 day s of t h e p et i t i on’s fil ing. In the alternative, defendant contends that the trial court err ed when it dismiss ed his petition
, b ec au s e he prese nted an arguable claim that he wa s denied the eff ective assistance of appellate counsel whe re c ounsel failed
to raise a meritorious issue on direc t appea l. The State respond s t h at the court’s dismiss al

was timely and, further, that defe ndant’s petition was frivolous and was not verifie d by aff idavit. We deter

mine that the trial court’s judgme nt was not rende red within 90 day s and was ther efor e untimely . We reve rse a nd rema nd for se cond-stag e proc eeding s. ¶ 2 In November 2004, a g rand jury indicted defe ndant for the offe nse of murder. In Fe bruar y 2007, following a jury trial, defe ndant was found guilty

. The trial court sentenc ed defe ndant
to 60 y ear s’ imprisonment. On direc t appea l, this court aff irmed the judgme nt and sentenc e. See People v. Pe rez , No. 2-07-0347 ( 2009) (unpublished orde r under Supreme Court Rule 23). ¶ 3 On November 9, 2010, defe ndant filed a pro se postconvicti o n p et i tion. Amongother things
, d e f

e ndant alleg ed that he was denied the eff ective assistance of appellate counsel. The common-law rec ord ref

lects that the trial court signe d a document titled “ORDER” that was dated Fe bruar

y 7, 2011. The co n t en t s of the order ref lect that the trial court revie wed the petition; that it found that defe ndant had not raised any new claims of innocenc e or alleg ed

a valid arg ument reg arding a denial of constitutional rig hts; that it found that the petition was “fr ivolous and patently without merit and i s d i s m issed”; and that the trial court there afte r order ed the circ uit cler

k to send a copy of the order to defe ndant and all counsel of rec ord by

cer tified mail within 10 da

y s. The order bear s a stamp by the circ uit clerk indicating that it was “ filed” F ebrua

ry 8, 2011.

-2-¶ 4 On Marc h 25, 2011, defe ndant fil ed his notice of appea l. On April 22, 2011, this court

allowed de fenda

nt leave to f

ile a late notice of appe al. ¶ 5 Def

endant first contends that the order dismiss ing his postconviction peti t i o n i s void beca use the trial court failed to dismiss the petition within the 90-day statutory period. See 725 I L CS 5/ 122-2.1(a ) (West 2010). De fenda nt argues that the date stamped by the circ uit cler k, Fe bruar

y 8, 2011, is the d at e o n which the order was “publicly expressed” and is there fore the eff

ective date of the order

. Def endant conclude s that the petition was dismiss ed

on Fe bruar

y 8, 2011, 91 day s afte r it was filed. The State counter s that the trial court signe d and dated the order on Fe bruar y 7, 2011, which was 90 day s afte r defe ndant’s postconviction petition was filed and that thus the trial court’s dismissal was timely

. ¶ 6 In a noncapital case , the Post-Convi ction Hea ring Act (t h e Act) (725 I L CS 5/122-1 et

s e q

. ( We s t 2010)) establishes a three -stag e proce ss for adjudicating a postconviction peti ti o n

. At the first stag e, the trial court must independe ntly revie w the petition within 90 day s of its filing to deter m i ne whether it is either frivolous or patently without merit. People v. Tate
, 2012 I L 112214, ¶ 9 (citing People v. Hodges
, 234 I ll. 2d 1, 10 (2009)) ; see 725 I L CS 5/122- 2.1(a) (2) (West 2010). This 90-day require ment is man d at ory , and a trial court’s noncompliance with the time r equire ment rende rs a summary dismiss al order void. People

v. Swamynathan
, 236 I ll. 2d 103, 113 (2010) (citing People v . Brooks , 221 I ll. 2d 381, 389 (2006))

. We revie w de novo a trial court’s first-stag e dismiss al of a postconviction petition. Tate , 2012 I L112214, ¶ 10 (c iting People v . Brown , 236 I ll. 2d 175, 184 (2010)). ¶ 7 As is releva

nt here , section 122-2.1 of the Act pr ovides: “(a ) Wit hin 90 day s afte r the filing an d d o cketing of eac h petition, the court shall examine such petition and enter an orde r there on pursuant to this Section.

*** (2) I f the petitioner is sentenc ed to imprisonment and the court deter mines the
p et i t i o n is frivolous or is patently without merit, it shall dismiss the petition in a written order
, specify

ing the finding s of fac t and conclusions o f law it made in

rea ching its decision. Such order of dismiss al is a final judgme nt and shall be serve d
upon the petitioner by cer ti fied mail within 10 day s of its entry .” 725 I L CS 5/122- 2.1(a) (2) ( West 2010). ¶ 8 In the prese nt case , t h e re co rd cl ea rl y re fl ects that the trial court examined the postconviction petition within the statutory 90-d ay period. The trial court also signe d and dated a written order within the statutory 90-day period. Acc ording to section 122-2.1(a )(2) of the Act, “[s] uch order of dismiss al is a final judgme nt.” On the surfa ce, then, it would
appea r that the trial court’s Fe bruar y 7, 20 11, date controls to establish that the postconviction petition was acte d upon in a timely manner pursuant to the provisions of the Act. ¶ 9 Howeve r, such a superf icial revie w lends no justice to the parties, the courts, or the leg al profe ssion. Our supreme court’s rules dictate that an order is a judgme nt (I ll. S. Ct. R. 2(b)( 2) (ef f. May 30, 2008)) and that judgme nts are , g ener ally
, eff ective as of the date of filing (I ll. S. Ct. R. 272 (ef

f. Nov. 1, 1990)). See Cirro W reck ing Co. v. Roppolo
, 153 I ll. 2 d 6
, 1 4 (1992). Under this sce nario, then, it would appea r that the circ uit c lerk’s Fe bruar y 8, 2011,

-3-filing date controls to establish the eff ective date of the judgme nt, which would result in an untimely action take n on defe ndant’s postconviction petition. ¶ 10 R esolution of this issue turns on the date the trial court’s judgme nt was re n d er ed an d beca me eff ective. Both Rule 2(b)( 2) and section 122-2.1(a )(2) of the Act ref ere nce the term “judg ment.” Historically
, our supreme court define d “judg ment” as “ ‘the officia l and authentic decision of a court of justice upon the respective rights a n d cl aims of the parties
to an action or suit therei n litigated and submitt ed to its deter mination.’ ” People ex rel. Schwartz v. Fagerholm
, 17 I ll. 2d 131, 134 (1959) (quoting Bla ck’s L aw Dictionary 976-77 (4th ed. 1951)). “It is the expression of the court’s decision that constitutes the rendition of the judgme nt.” Id. at 134. The Fagerholm court he ld that, to be eff ective, a judgme nt must be “expressed publicly
, in words, and at the s i t u s o f the proce eding .” Id. at 135. The Fagerholm court considere d the interests of the parties and the public and stated, “to protec t such interests it is nece ssary that they be apprised that a decision has been made by the judge and what the decision is. They would be so apprised when it has been expressed publicly
, in

wo rd s an d at t he si tus of t he case.” Id. at 136. Fur ther, a judgme nt “bec omes public at t h e situs of the proce edingwhen it is filed with the cler k of the c ourt.” Id. at 137. ¶ 11 Be fore Fagerholm
, judgme nts at l aw were valid when pronounce d by the court, while equitable decr ees wer e not eff ective unt i l reduc ed to writing

. See, e.g. , Freeport Motor Casualty Co. v. Tharp
, 406 I ll. 295, 399 (1950) (“[R] endering a judgme nt” is the judicial act of the trial court in pronouncing its ruling or finding in t h e controve rsy

. (Emphasis omitted.)). In enac ting Rule 272 (I ll. S. Ct. R. 272 (ef f. Nov. 1, 1990)), our supreme court has since eliminated the distinction. Rule 272 discusses wh en a j u d g ment is enter ed and provides:
“I f at the time of announcing final judg ment the judg e re quires the submission of a form of written judgme nt to be signe d by the judge ***, the cler k shall make a notation
to that eff ect and the judgme nt become s final only when the signe d judgme nt is filed. I f

no such si gn ed wr i tten judgme nt is to be filed, the j udg e or cler k shall forthwith m ake a notation of judgme nt a

nd enter the judgme nt of rec ord promptly
, and the judg ment is
enter ed at the time it is entere d of re cord.” Id. Despite the enac tment o f Ru l e 2 72, howeve r, the Fagerholm court’s deter mination with
respe ct to the essential elements neede d for eff ective court action continues to be sound; that is, public expression, in words, and at the si tus of t he procee ding. Gr a nite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City
, 141 I ll. 2d 122, 126-27 (1990) (citing Fagerholm , 17 I ll. 2d at 135). ¶ 12 Wit h these principles in mind, we now turn to the circ umstances in t h e p re s en t ca s e. Ne i t h er party repr esents that the trial court conducte d a hear ing on Fe bruar y 7, 2 0 1 1
, an d neither party repr esents that a repor t of proce eding s exis ts for Fe bruar y 7, 2011. There fore
, our revie w is limit ed to the contents of th e common-law rec ord. The common-law rec ord ref lects that, on Fe bruar

y 7, 20 1 1
, t h e t ri al court revie wed the postconviction petition and deter mined that the petition was frivolous and without merit. On that date, acc ording to the common-law rec ord, the trial court s i gn ed a d ocument titled “ORDER” ref lecting the dismiss al of the pe tition.

-4-¶ 13 What the common-law rec ord does not ref lect, howeve r, is the prese nce of any party , any party ’s counsel, or any other court personne l on Fe bruar y 7, 2011. Be cause “p ublic expression” is an essential element for eff ective court action (see id. (citing Fagerholm
, 17 I ll. 2d at 135)) and “[i] t is the expression of the court’s decision that constitutes the rendition of the judg ment” (

Fagerholm
, 17 I ll. 2d at 134), we can conclude only that, contra ry to the S t ate’ s position and the dissent’s, the t rial court’s judgme nt was not rende red on Fe bruar y 7, 2011. ¶ 14 Wit h no public expression of the trial court’s ruling
, there fore
, we examine the commonlaw rec ord to deter

mine when a notation of the judgme nt occur red. See I ll. S. Ct. R. 272 (ef f. Nov. 1, 1990). Ac co rd i n g to the common-law rec ord, the Fe bruar y 7, 2011, order bear s a stamp by the circ uit cler

k indicating that it was “filed” Fe bruar y 8, 2011. This “filing ” by the circ uit cler

k satisfies all of the essential elements for eff ective court action. See id. ; Granite City Lod g e N o

. 2 72
, 1 41 I ll. 2d at 126-27 (citing Fagerholm
, 17 I ll. 2d at 135). Upon our revie w, there fore
, we deter mine that the trial court’s judgme nt was rende red on Fe bruar y 8, 2011. ¶ 15 Be ca u s e t h e t ri al co u rt ’s judgme nt on defe ndant’s postconviction petition was n o t rende red within the statutory 90-day period, it is untimely and there fore void. See 725 I L CS 5/122-2.1(a) (2) ( West 2010). ¶ 16 Our decision is consistent with supreme court and o t h er re viewing court decisions. In People v. Ha n s en , 2011 I L App (2d) 081226, the defe ndant’s motion to rec onsider was denied in a written order dated November 5, 2008; the order was not fi l e- stamped until November 10, 2008. Id. ¶ 3. The defe ndant’s notice of appea l was postmarked Dec ember 10, 2008. Id. ¶ 4. On appea l, the State claimed that, based on the trial court’s date of November 5, 2008, the defe ndant’s notice of appea l was untimely and jurisdiction was lacking

. Id. ¶ 6. This court held that the wr i t t en order “wa s not publicly expressed at the situs of the
proce edinguntil itwas filed w ith the cler k on November 10, 2008.” Id. ¶ 8. We explained that to hold that the ear lier date was th e o rd er ’s eff ective date “would cre ate an untenable result, as de fenda

nt would have lost his ability to appea l under c erta in scena rios.” Id. ¶ 17 In Dunn v. Patton
, 307 I ll. Ap p. 3d 375 (1999), the trial court enter ed its judgme nt on Dec ember 5, 1997, acc ording to the file-stamp date on the order ; howeve r, the rec ord sheet did not ref

lect the order ’s entry until June 29, 1998. Id. at 378-79. Although the defe ndants

rec eived copies of the order in Dec ember 1997, the plaintiff did not. Id. at 379. The plaintiff lear ned of the order

in J une 1998 and f

iled a notice of appea l on J uly 27, 1998. Relying on

o u r supreme court’s prece dent i n Granite City Lodge and Fagerholm
, the reviewin g co u rt deter mined that the effec tive date of the t rial court’s judgme nt was June 29, 1998, and not the December 5
, 1 9 97, date when t he judge signed and dated the order

. Id. at 378-79. The revie wing court explained that, de spite the plaintiff’s diligent eff orts to a scer

tain the status of the case , “the Dec ember judgme nt wa s n o t m ad e public, in words, at the situs of the
proce eding s, until June 29, 1998,” and “[t]herefor e, the e ffe ctive date of the judgme nt w as J une 29, 1998.” Id. at 379. ¶ 18 In In re Marriage of Garlinski , 99 I ll. App. 3d 107 (1981), the trial court made an oral
pronounce ment on August 14, 1979, dissolving the parties’ marria g e, but it rese rved hear ing

-5-on other matters. Id. at 108. On August 28, 197 9
, a wr i t t en judgme nt of dissoluti on of

marria g e was enter ed and signe d by the trial court, but it m ad e no mention of the other
matters. Id. On November 14, 1979, the husband died, and the trial court dismiss ed the case

. Id. On appea l, this court reve rsed and rema nded, holding that the judgme nt of di s s o l u t i on beca me final on August 28, 1 9 7 9, beca use it was written and enter ed on that date, and beca use it confirme d the August 14, 1979, oral pronounc ement of the dissoluti on. Id. ¶ 19 In People v. Ortega
, 106 I ll. App. 3d 1018 (1982), the defe ndant was arr ested for dr iving under the influence of alcohol, and he ref used to sub m i t t o a b re ath test. The circ uit court cler k notified the defe ndant that his driver’ s license would be suspended unless he reque sted

a hear ing. Id. at 1020. The de fenda nt reque sted a he aring
, and the trial court conducte d the hear ing on J une 11, 1980. Id. At the conclusion of the hear ing, the trial court orally stated its fi n d i n g s and st ruck the State’s petit ion. Id. The court then s et a “trial date” for August 21, 1980, but on J une 25, 1980, the State filed a notice of appea l. Id. The defe ndant challeng ed jurisdiction, arg

uing that the J une 1 1
, 1 9 8 0
, order was not final beca use it had not been
proper ly cer

tified by the clerk to show that it portrayed an officia l rec o rd

. Id. at 1021. The revie wing court examined the transcr ipt of the proce eding s and reje cted the defe nd an t’s
argument. Id. The revie wing court explained that “[t] he rendition o f a j u d gm ent is the judicial act by the court at the time it makes its pronounce ment and entry of the judgme nt on the rec ord is simply a minist eria l act perf ormed by the cler

k,” and it deter

mined that the J une 11, 1980, order was “of rec ord” and constituted a final and appea lable order

. Id. at 1021-22. ¶ 20 In Cirro W

r ec ki n g , 1 5 3 I l l

. 2 d 6
, our supreme court considere d the validity of an appellate court’s order when only two of the three justices who considere d the appea l w ere actua lly in office at the time the order was enter ed. Id. at 14. The defe ndants argued that the

re s i gn ati on of one of t he two concur ring justices beca

me effec tive on August 1, 1991
, b u t that the order from the appellate court cler k’s office indicated that the order was not enter ed until August 6, 1991, thus making the order untimely and invalid. Id. at 14-15. In reje cting the defe ndants’ argument, our supreme court explained the differ ence betwee n a trial court’s rende ring a judgment and the clerk’s entry of a judg ment. It stated, “a judgment otherwise
proper ly rende red during the pendenc y of a judg e’s ter m is valid even though it is actua lly
enter ed by

the cler k followingthe trial judg e’s va cation of office

. That must be so beca use the judicial authority repose d in a trial judge in t h e p roper functioning of his office in rende ring judgme nt cannot be depende nt upon the minist eria l function of the court’s cler k in rec ordingthat fac t.” Id. at 16 (c iting In re Estate of Y oung , 414 I ll. 525 (1953)). ¶ 21 The part i es al s o discuss People v. Ross
, 339 I ll. App. 3d 580 (2003). In Ross
, the trial
court summarily dismiss ed the defe ndant’s postconviction petition as frivolous and patently without merit. Id. at 582. The trial court’s order su m m arily dismiss ing the defe ndant’s postconviction petition was dated J anuar y 19, 2001; the order was file-stampe d Fe bruar y 1, 2001. Id. The defe ndant appea led, ar guing that the summary dismiss al was void beca

use it was not file- stamped within 90 day s as re quired by section 122-2.1( a) of

the Act. Id. ¶ 22 The re v i ew i ng court examined the repor t of proce eding s from Fe bruar y 1, 2001, and noted that the trial c ourt made the followingstatements re g ardingthe date of dismiss al:
“ ‘This order is signed. I t is down here from J anuar y the 19th. T his w ill be, the petition

-6-for post-conviction relief is dismiss ed, and it is frivolous and patently without merit ***. That will be, nunc pr o tunc [ sic ] from 1-19-01.
I signe d the order on the 19th, a nd they wer e in the court file. Evidently
, the person on the 19th, didn’t rea liz e they wer e in there , so that is why it got today .’ ” Id. ¶ 23 The revie wing co u rt conclude d, “[i] n this case , the rec ord indicates that the trial court examined [t he] defe ndant’s pro se postconviction petition and summarily dismiss ed it on J anuar y 19, 2001, within the 90-day statutory period.” Id. at 583. The revie wing court further stated that “the judgme nt summarily dismiss ing [t he] defe ndant’s petition was enter ed when the court signe d the order .” The court conclude d that “by signing the dismiss al order within 90 day s, the trial cour

t ‘enter ed’ a

n order within the meaningof the Ac t.” Id. ¶ 24 Al l o f the fore g oing case s support our rationale in deter mining when eff

ective co u rt action h as o cc u rred and a judgme nt has been proper ly rende red. In Hansen
, the reviewing
court looked to when the written order was “publ i cl y ex p re s sed at the situs of the
proce eding .” Hansen
, 2011 I L App (2d) 0 8 1 2 2 6
, ¶ 8. In Dunn
, the revie wing court deter mined that the rec ord supported a finding that the trial court’s Dec ember 1997 judgme nt was not eff

ective until J une 19 9 8
, t h er eby reje cting the not ion that a court’s signature and date are all that is require d for an eff ective judgme nt. See Dunn
, 307 I ll. App. 3d at 378-79. In Garlinski
, the revie wing cour t re v i ewe d the rec ord and considere d the trial court’s oral
pronou nceme nt of its decision and its memorialization in deter mining whether the trial court’s decision was a final judgme nt. In Ortega
, the revie wing court examined the transcr ipt of the proce eding s to deter mine that the trial court’s oral pronounce ment of its judgme nt at the conclusion of a hearing was “of rec ord” and co n s t ituted a final and appea lable order

. Ortega
, 106 I ll. App. 3d at 1021-22. I n Cirro W reck ing
, our supreme court noted that the
proper rende ring of a trial court’s judgme nt was not depende nt upon the cler k’s rec ording of the judgme nt. Cirro W

reck ing
, 153 I ll. 2d at 16. And last, i n R o s s , t h e revie wing court examined the transcr ipt of the trial court’s comments, wher ein the court explained the action it took on the pos tconviction petition, i n d et erm ining that the petit ion was acted upon in a timely manner

. Ross , 339 I ll. App. 3d at 582-83. ¶ 25 As the reviewing courts did in Hansen
, Dunn
, Garlinski
, Ortega
, Cirro W reck ing , and Ross
, we too examine the entire rec ord to deter mine when the court action in dispute beca me eff ective. In doing so, we consider the elements of eff ective court action: a public expression, in w ords, and at the situs of the proce eding

. See Granite City Lodge No. 272 , 141 I ll. 2d at 126-27 (citing Fagerholm , 17 I ll. 2d at 135). In the prese nt c ase, the rec ord ref lects that no hear ing or public court appea ranc e occur

red on Fe bruar

y 7, 2011, unlike the circ umstances in Ross
, wher e the rec ord included a transcr ipt of the trial cour

t’s explanation of its action. In other words, the Ross court had a record confirming the ef fe ct i v e date of the j udg ment, despite the administrative oversight. The common-law rec ord in the prese nt case contains

no explanation or commentar y to suppor

t a Fe bruar

y 7, 2011, public expression of the trial court’s ac t i o n

. We, there fore
, must conclude that the public expression of the trial court’s action occur

red, thus satisfying the elements of eff ective court action, on Fe bruar y 8, 2011, when the or der w as filed with the c ircuit cler k. ¶ 26 Our decision is consistent with the spirit and purpose of the Act, which was intended to

-7-allow persons under criminal sentenc es to asser t that they wer e s ub

j ec t ed to a substantial denial of their rig hts under the United States Constitution or the I llinois Constitution, or both. People v. Brooks , 233 I ll. 2d 146, 153 (2009); People v . Davis
, 54 I ll. 2d 494, 496 (1973). Our decision is consistent with supreme court precede nt, i.e.
, Granite City Lodg e N o

. 272 and Fagerholm
, which require s revie w of the entire rec ord befor e deter mining when a trial court’s judgme nt was rende red. See Granite City Lodge No. 272
, 1 4 1 I ll. 2d at 126-27; Fagerholm
, 17 I ll. 2d at 135

. Our decision also protec ts a defe ndant’s rig ht to appea l in a timely manner (s ee Hans en , 2011 I L App (2d) 081226, ¶ 8), and we reje ct the State’s
argument and the dissent’s position that an eff ective dismiss al occur s mere ly upon the trial court’s signing the order

. ¶ 27 In s o h o l d i n g, we rema rk briefly on the dissent’s position and its ramifications. The dissent seems to take the position that section 122-2.1(a) of the Act r equire s the trial cour t only to examine the petition and enter an order within the 90-day period and that the trial
court complied with that mandate on Fe bruar y 7, 2011. See infra ¶ 42 (Hudson, J
., dissenting)

. The diss ent would allow a trial court to sign an order on the ni netieth day and hold i t i n ca me r a for day s, months, or even y ear s, and thus eff ectively deny a petitioner seeking relief under the Act the rig ht to timely appea l the adver se order

. T h e d i ssent’s position is square ly at odds with our supreme court’s positions in Granite City Lodge No. 272 and F

a g erholm , and with the Dunn court’s thoughtf ul examination of an analog ous circ umstance. See Dunn , 307 I ll. App. 3d at 378-79. ¶ 28 We deter

mine that the dismiss al was not timely rende red and is there fore void. B eca use

we are rema

nding for second- stag e proce eding s, defe ndant will have the benef it of counsel
to amend the petition, the State will have an opportunity to r espond, and the trial court will rule acc ording ly

. There fore
, we decline to consider defe ndant’s second contention. See Tate
, 2012 I L112214, ¶¶ 26- 27. ¶ 29 For the rea son s s et fo rt h ab o v e, we reve rse the judgme nt of the circ uit court of Ka ne County and re mand the ca

use for further proce eding s.

¶ 30 Reverse d and re manded.

¶ 31 J USTI CE HUDSON, dissenting

. ¶ 32 At issue in this appea l is whether defe ndant i s entitled to have the first-stag e dismissal of his postconviction petition reve rsed a n d th e c a u s e r emande d for second- stag e proce eding s, when the trial court signe d and dated a written order of dismiss al within the statutory 90-day period, but the order was not filed by the cler k of the circ uit court until afte r the statutory 90- day period had expired. The majority conclude s that, for purpose s of s ection 122-2.1(a) of the Post-Convi ction Hea

ring Act (Ac t) (725 I L CS 5/12 2

- 2

. 1 ( a ) (West 2010)), the trial court’s written order was not enter ed until it was “publicly expressed” and that the order was not “publicly expressed” until the cler k of the circ uit court file-stampe d the order

. Supra ¶¶ 13-16. Since the cle rk of the c ircuit court did not file-stamp the written orde r until after the ex piration of t h e s tatutory 90-day period, the majority holds that the t rial court’s order is void and that defe ndant is entitled to have his petition dockete d for further consideration.

-8-Supra ¶¶ 15-16, 27. I disag ree with the majority ’s interpre tation of section 122-2.1(a ). I find

that the trial court complied with the mandate set forth in section 122-2.1(a ) beca use it signe d and dated the dismiss al order within the statutory 90-day period. Acc ording ly
, I respe ctfully dissent. ¶ 33 Section 122-2.1(a ) of the A ct provides in per tinent part: “(a ) Wit hin 90 day s afte r the filing and docketing of eac h [post conviction] petition, the court shall examine such pe tition and enter a n order there on pursuant to this Section.

*** (2) I f the petitioner is sentenc ed to impr i s o nment and the court deter mines the petition is frivolous or is patently with o u t m er i t , it shall dismiss the petition in a written order
, specify

ing the finding s of fac t and conclusions of law it made in

rea ching its decision. Such order of dismiss al is a final judgme nt and shall be serve d
up on the petitioner by cer tified mail within 10 day s of its entry .” 725 I L CS 5/122- 2.1(a) (West 2010). When prese nted with an issue of statutory interpre tation, the primary objective is to asce rtain and g ive ef

fec t to the intent of the leg islature. People v. Jasoni , 2012 I LApp (2d) 110217, ¶ 13. The most reliable indicator of the leg islature’s intent is the plain languag e of the statute itself. Jasoni
, 2012 I L App (2d) 110217, ¶ 13. I f the statute does not provide a d efinit ion indicating a contra

ry leg islative intent, words in a statute are g iven their plain, ordinary
, and popularly understood meaning s. People v. Davis
, 2012 I L App (2d) 100934, ¶ 14. Moreove r,

a statute should not be interpre ted to impose a condition that the leg islature did not enac t or to rende r any

part of the statute meaning less or super fluous. Commonwealth Edison Co. v. Illinois Commerc e Comm’n , 398 I ll. App. 3d 510, 523 (2009). ¶ 34 In deter

mining whether the summary dismiss al of a postconviction peti t i o n i s t imely
, section 122-2.1(a ) of the Act (725 I L CS 5/122-2.1(a) (West 2010)) ref ere nces two dates of signific ance

. The first date of signific ance is the “filing and docketing ” of the petition, which

commence s the s tatutory period. The second date of signific ance is the d at e t h e t ri al court “ente r[s] an order ” on the petition. An order is timely under section 122-2.1(a ) if it is enter ed by the trial cour

t within 90 day s after the petition is filed and dockete d. As noted above, in this case , the majority conclude s that the trial court’s writt en o rd er o f dismiss al was not timely “ente red” beca

use the cler

k of the circ uit court file stamped the order 91 day s afte r defe ndant’s postconviction petition was filed and dockete d, notwithstanding that the written order was signed and d at ed wi t h i n the s tatutory period. Supra ¶¶ 13-16. In so holding, the majority rea ds into the statute a require ment that the leg islature did not intend–a require ment that the cler

k of the circ uit court file the trial court’s written order within the statutory period

or that the trial cou rt ’s order be publicly expressed in some other manner

. See Commonwealth Edison Co.
, 398 I ll. Ap p

. 3d at 523 (noting that a statute should not be interpre ted to impose a condition that the leg islature did not enac t). Ha d t h e l egislature intended the timeliness of the trial court’s order to depend on the date it is filed by the cler k of the circ uit c ourt or on some other public expression, it could have easily stated so. It did
not. ¶ 35 In essenc e, the majority construes the term “e nter” as used in sec tion 122- 2.1(a) as if it

-9-wer e sy nony mous with the term “filing .” Howeve r, I find compelling the fac t that th e leg islature alre ady used the term “filing, ” i n conjunction with the word “docke ting,” to desig nate when the statutory period commence s. Qu i t e simply
, the leg islature’s use of distinct terms in section 122-2.1(a ), i.e.
, “filing ,” “docke ting,” and “ente r,” s er v es to undersc ore the proposition that it intended those terms to have di ff er en t m eaning s. See Peoria Disposal Co. v. Illinois Pollution Control Board
, 385 I ll. App. 3d 781, 795 (2008). I llustrative of this point is People v. Floyd
, 210 I ll. App. 3d 840 (1991). In Floyd
, the court

rec og nized that the period set forth in section 122-2.1(a ) of the Act commence s “not simply when a petition is filed, but when it is filed and docke ted .” (Emphasis in orig inal.) Floyd
, 210 I ll. App. 3d at 843. Thus, the Floyd court held that a p o s t co n v i ction petition is “filed” for
purposes of section 122-2.1(a ) when it passes into the actua l phy sical possession of the cler k of the circ uit court and that it is “docke ted” when the cler k takes some m i n i s t er ial action
upon rec eipt of the petition, e.g. , makes an entry into the rec ord shee t. Floyd, 210 I ll. App. 3d at 842-43; see also People v. Brooks
, 221 I ll. 2d 381, 390-91 (2006) (noting that the term “docke t” “connote s that the ca u s e i s enter ed on the court’s officia l docket for further
proce eding s”). The fac t that the terms “filing ” and “docke ting” as used in section 122-2.1(a ) have been interpre ted to have differ ent meaning s st ro n gl y supports the argument that the word “ente r” as used in section 122-2.1(a ) must have a meaning distinct fr om e ither one of those terms. ¶ 36 Neither the term “ enter ” nor the term “file” is de fined in the Act. Acc ording to B lack’ s L aw Dictionary
, the term “ente r” signifie s “[t] o put formally befor e a court or on the rec ord.” Bla ck’s L aw Dictionary 552 (7th ed. 1999). The verb “fi l e” m eans “[t] o deliver a leg al d o cument to the court cler k or rec ord custodian for place ment into the official re co rd

. ” Bla ck’s L aw Dictionary 642 (7th ed. 1999). Her e, the trial court formally place d its decision

on the rec ord on Fe bruar

y 7, 2011, when it signed and dated the written order of dismiss al. Whil e the order was not place d into the officia l rec ord until Fe bruar y 8, 2011, when the cler

k of the c ourt file-stampe d it, section 122-2.1(a ) does not require the orde r to be filed within the statutory period. Be cause the order was signe d and dated within 90 day s afte r defe ndant’s petition was filed and dockete d, I am compelled to conclude that the order was timely enter ed in acc ordanc e with the express provisions of the Act. See People v. Harris
, 224 I ll. 2d 115, 1 4 1 (2 0 07) (noting that the Act mere ly require s the court “to make” its first-stag e o rd er within 90 day s after

filing a nd docketing ). ¶ 37 I note that this conclusion is consistent with People v. Ross
, 339 I ll. App. 3d 580 (2003). In Ross
, the defe ndant filed a pro se postconviction petition on October 30, 2000. On J anuar y 19, 2001, the trial court signe d a written order summarily dismiss ing the petition as frivolous and patently without merit. The cler k of the court did not file-stamp the court’s written order

un t i l Fe bruar

y 1, 2001. Wit h respe ct to its ruling on the petition, the trial court made the followingrema

rks in open cour

t on Febr uary 1, 2001:
“ ‘This order is signed. I t is down here from J anuar y the 19th. T his w ill be, the petition fo r post-conviction relief is dismiss ed, and it is frivolous and patently without m er i t , pursuant to [section 122-2.1(a )(2) of the Act]. That w ill be, nunc pro tunc [ sic ] fr om 1- 19-01.
I signe d the order on the 19th, a nd they wer e in the court file. Evidently
, the person

-10-on the 19th, didn’ t r ealize they wer e in the re, so that is why it got today

. So the cler

k is direc ted to mail a cer

tified copy of the order to the defe ndant within 30 day s from today ’s date.’ ” Ross , 339 I ll. App. 3d at 582 The defenda

nt appea led, arguing, inter alia
, that the s ummary dismiss al was void beca use the trial court did not rule on his pe tition within the 90-day period require d by section 122- 2.1(a) of the Ac t. ¶ 38 The Ross court re jected the defe ndant’s position, stating:
“In this case, t h e re co rd indicates that the trial court examined defe ndant’s pro se postconviction petition and summarily dismiss ed it on J anuar y 19, 2001, within the 90- day statutory period. Howeve r, the trial court rea d the writt en o rd er into the rec ord on Fe bruar y 1, 2001, nunc pro tunc J anuar y 19, 2001.
Al t h o u gh the trial court char acte rized its order as nunc pro tunc , the judgme nt summarily dismiss ing defe ndant’s petition was enter ed when the court signe d the order

on J anuar y 1 9
, 2 0 0 1

. S ee People v. Redman
, 122 I ll. App. 3d 787, 791-92 *** (1984) (holding that the rendition of a judgme nt is a judicial act, while the entry of a judgme nt upon the rec ord by the cler k is a minist eria l a ct). ‘The minist eria l f ailure of the cler

k to enter the judgme nt into his reco rd s d o es n o t aff ect the validity of the judgme nt.’ In re Marriage of Garlinski
, 99 I ll. App. 3d 107, 109 *** (1981). Def endant does not sug g est what action, in addition to signing the order, t h e t ri al court was require d to perf orm to comply with the Act’s require ment that the court ‘ente r an order ’ on the petition. 725 I L CS 5/122-2.1(a) (West 2000). We conclude that by signing the dismiss al order within 90 day s, the trial court ‘ente red’ an order within the meaning of the Act.” Ross
, 339 I ll. App. 3d at 583. ¶ 39 The majority distinguishes Ross
, explaining that in the prese nt c ase “the rec ord ref lects that no hearing or public court appea ranc e occur

red on Fe bruary 7
, 2011, unlike the circ umstances in Ross
, wher e the rec ord included a transcr ipt of the trial court’s explanation of its action.” Supra ¶ 25. The majority also states that “[t] h e co m m o n -l aw rec ord in the
prese nt case likewise contained no explanation or commentar y to support a Fe bruar

y 7, 2011, public expression of the trial court’s action.” Supra ¶ 25. I fail to see how the afte r-the- fac t explanation pr ovided by the trial court in Ross sufficie ntly distinguishes that ca se from the
prese nt one . The trial court in Ross explained its prior actions in ope n court on Fe bruar y 1, 2001. The court stated that on J anuar y 19, 2001, it signe d the order of dismiss al and place d it in the court fi le, but the cler k of the court did not rea liz e at that time that the order was

rea dy to be filed. Significa ntly
, I find no evidenc e that when the trial court in Ross dated and signe d the order of dismiss al on J anuar y 19, 2001, it did so at a hea ringor otherw ise in the
prese nce of the parties or the public. In interpre ting Ross
, the majority con fl at es the trial court’s Fe bruar

y 2001 explanation and its J an uary 2001 order of dismiss al. Howeve r, the R oss court conclude d that the date in J anuar y , when the trial court signe d t h e o rd er o f dismiss al, controlled. Ross
, 339 I ll. App. 3d at 583. Thus, unlike my colleagues, I find Ross virtually indisti nguishable fr om the fac ts in thi s case

. ¶ 40 The majority

conclude s that interpre ting se ction 122-2.1(a) of the Act to pr ovide that a dismiss al order is enter ed on the date it is signe d and dated by the trial court is “super ficial”

-11-and “lends no justice to the parties, the courts, or the leg al profession.” Supra ¶ 9. The

majority then discusses People ex rel. Schwartz v. Fagerholm
, 17 I ll. 2d 131 (1959), for the proposition that the trial court’s order summarily dismiss ing defe ndant’ s postconviction petition was not eff

ective until it was “ ‘expressed publicly
, in words, and at the situs of the
proce eding .’ ” Supra ¶ 10 (quoting Fagerholm , 17 I ll. 2d at 136). ¶ 41 Fagerholm was a mandamus action. The appellants in that case al l ege d that, when the trial court r ender ed its decision, it did so while sitti ngin De Ka lb County , even though the underlying proce eding s occur red in Kane County

. The appellants alleg ed that since the trial
court was not “in the proper forum, the purported order is null and void.” Fagerholm
, 17 I ll. 2d at 134. The Fagerholm court announce d a g ener al rule that “a judgme nt at law become s eff ective when it is announce d in open court, or in the absenc e of such pronounce ment, when it is reduced to writing, approved by the j udg e and filed for rec ord.” Fagerholm
, 17 I ll. 2d
at 137. Her e, howeve r, we are conce rned with a statutory scheme that provides for a specific form of proce dure. Notably
, section 122-2.1(a ) require s the trial court to “ente r an order ” on the petition within the statutory time frame and provides that, if the court deter mines that the
p et i t ion is frivolous or patently without merit, the court’s written order of dism i s s al constitutes a “f

inal judgme nt.” 725 I L CS 5/ 122-2.1(a ) (West 2010). ¶ 42 The majority also notes that
, p ri o r to Fagerholm
, judgme nts at law wer e valid when
pronounce d by the court, while equitable decr ees wer e not eff ective until reduc ed to writing

. Supra ¶ 11 (citing Freeport Motor Casualty Co. v. Tharp
, 4 0 6 I l l

. 2 9 5, 299 (1950))

. The majority then ref

er en ce s I l linois Supreme Court Rule 272 (ef f. Nov. 1, 1990), which eliminated this distinction. Supra ¶ 11. To the extent that the majority relies on Rule 272, I find its relian ce misplaced. Rule 272 resolves which order takes prec edenc e when a trial
court orally rules, indicates that a written order will be enter ed later, and subsequently enter s

a written order

. This is not what occur red in this case

. The maj o ri t y al so states that its decision is consistent with other court decisions cit ed by the parties. Howeve r, with the exception of Ross
, which, as discussed above, I find direc tly on point, none of th e case s discussed by

the majority

involved the interpre tation of section 122-2.1( a) of the Act. ¶ 43 I find unwar

rante d the majority ’s conce rn that my interpre t at i o n o f s ection 122-2.1( a) would deny a petitioner seeking relief under the Act the r ight to timely appea l. Supra ¶ 27. Section 122-2.1(a )(2) of the Act (725 I L CS 5/122-2.1(a) (2) (West 2010)) require s the order of dismiss al to be serve d upon the petitioner by cer tified mail “within 10 day s of its entry .” This court has held that the failure to comply with the 10-day service provision of section 122-2.1(a )(2) rende rs the dismiss al order void and require s a rema nd for further proce eding s pursuant to the Act. People v. Redmond
, 328 I ll. App. 3d 373, 377-78 (2002). Thus, if a court

wer e to enter an order on the ninetieth day afte r the petition was filed and “hold it in came ra fo r day s, months, or even y ear s” (supra ¶ 27), the petitioner would be entitled to have t h e petition dockete d for further considera tion in acc ordanc e with sections 122-4 throug h 122-6 of the Ac t. See 725 I L CS 5/ 122-2.1(b) (West 2010); Redmond, 328 I ll. App. 3d at 377-78. ¶ 44 In closing
, while the majority believes that the better prac tice would be to ensure that an order of dismiss al isfiled within 90 day s afte r a postconviction petition is filed and dockete d with the cler

k of the circ uit court, the plain languag e of section 122-2.1(a ) require s only that the trial court “examine” the petition and “ente r an order there on” within the 90-day period.

-12-The trial court complied with this mandate when it signe d and dated the dismiss al order on

Fe bruar y 7, 2011. I t is not within our province to rewrit e o r ad d a co n dition to a statutory

enac tment, irrespe ctive of how laudable the intended result might be. As such, I cannot join in the majority ’s conc lusion that the trial court’s orde r of dismissal in this case is void.

-13-