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Murder appeal could hinge on clerk’s stamp

Updated: December 30, 2012 3:29PM



ELGIN - The timing of a court clerk’s stamp could determine whether Ivan Perez can continue to fight his conviction in a 2004 Aurora murder.

Perez was 16 when he fired a single shot into the head of 19-year-old Francisco Reyes Jr. on Jan. 9, 2004, a killing described as an execution by the judge overseeing Perez’s trial. A jury convicted Perez of murder in 2007 and he was sentenced to 60 years in prison. His conviction was later upheld by the appellate court, and the state Supreme Court declined to consider the case.

Now 25, Perez is being held at the Pontiac Correctional Center as attorneys wrangle over a technical aspect of his post-conviction petition.

In arguments on Tuesday, an appellate defender representing Perez told a three-judge panel in the Second Appellate District that the post-conviction petition — which generally involve claims of violations of Constitutional rights — was not dismissed in a timely fashion by the late Judge Jordan Gallagher in February 2011. A judge has 90 days to rule on the petition’s merits by either dismissing it outright or advancing it to the next stage for further consideration. Early in his case, Perez and his trial attorney contended Perez’s rights to a speedy trial were violated because he was charged with murder in April 2004 while in a juvenile detention center on an unrelated probation violation, but not served with a warrant in the murder until January 2005. A Kane County judge disagreed with the speedy trial claim and the case proceeded onto trial and Perez’s eventual conviction.

Appellate Defender Alison Shah told the justices that Gallagher signed the dismissal order on Perez’s petition on the 90th day, but that it was not file stamped by the circuit clerk’s office until the 91st day.

“All we have is a signed document with a date,” Shah told the appellate judges. “We don’t know what happened” to cause the filing date to be different from the date the order was signed.

Appellate Prosecutor Joan Kripke countered that a file stamp cannot negate a judicial order.

“We have to take a judge at his word,” she said. “The effective date (of a ruling) is when the judge signs and dates an order.”

Appellate Judge Robert McClaren asked what the true point of a file stamp is if it cannot invalidate a judge’s decision. At one point, as the panel referenced other possible scenarios for why an order signed on one day would not be stamped until a later time, Justice Susan Hutchinson asked rhetorically, “Why does everybody wait until the last day?”

McClaren suggested the idea of sending the case back to Kane County for clarification as to why the order wasn’t stamped the day Gallagher signed it. However, with Gallagher’s death in 2011, there likely would be little information to explain the timing of events.

The panel took the case under advisement for a future ruling.



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