People v. Totten

282 N.E.2d 184, 4 Ill. App. 3d 906

• Court: Appellate Court of Illinois
• Decided: March 21, 1972
• Docket: No. 71-329
• Status: Published

Opinion

Mr. JUSTICE CREBS

delivered the opinion of the court:

The Defendant, Glen Totten, entered a plea of guilty in 1959 in the Circuit Court of Wayne County to an information charging the crime of armed robbery, and was sentenced to a term of 5 to 25 years. His post-conviction petition, filed in 1970, was denied on the grounds of limitations and res judicata and Defendant has appealed.

At the time of Defendant’s conviction, the limitation period for filing a post-conviction petition was 5 years unless the delay was not due to culpable negligence. (Ill. Rev. Stat. 1959, ch. 38, par. 826.) This period expired in 1964, and was not affected by the amendatory act of 1965 extending the period to 20 years. (People v. Reed, 42 Ill.2d 169.) Therefore, unless the delay was without Defendant’s culpable negligence, the dismissal of the 1970 petition was correct.

The issue of whether the delay in filing was excusable was determined adversely to Defendant in a previous decision. In 1967 Defendant filed a petition which alleged that the delay was not due to his culpable negligence. Tire Court denied the petition and Defendant did not appeal. That decision was res judicata and the trial court properly dismissed the present petition. The judgment of the Circuit Court of Wayne County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.