Convicted murderer gets another day in court
By Dan Campana For the Beacon-News March 20, 2013 12:08PM
Updated: March 20, 2013 6:57PM
Although a Kane County judge decided Ivan Perez’s claims of constitutional missteps had no merit, a one-day delay in making that ruling official means the former Aurora man gets another chance to fight his murder conviction, according to the Second District Appellate Court.
In a ruling filed Tuesday, appellate judges split their decision to send Perez’s post-conviction petition back to Kane for arguments on whether his rights were violated in connection to his arrest in the 2004 killing of 19-year-old Francisco Reyes Jr. In general, Perez claims his speedy trial rights were violated because he was charged with murder in April 2004 while in custody on an unrelated juvenile case, but was not served with a warrant on the murder case until January 2005.
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. Perez, 25, remains held in the Pontiac Correctional Center.
Perez’s post-conviction petition was considered by the late Judge Jordan Gallagher, who found its claims to not be strong enough to advance it to a second-stage hearing where formal arguments would be heard. As with all post-conviction petitions, judges have 90 days to either dismiss it as fruitless or schedule arguments. In Perez’s case, Gallagher signed the order denying the petition on the 90th day, but a clerk did not file the denial order until the 91st day.
“Under this scenario, then, it would appear the Circuit Clerk’s ... filing date controls to establish the date of the judgement, which would result in an untimely action taken on the defendant’s post-conviction petition,” the ruling states.
In the dissenting opinion, Justice Donald Hudson, a former Kane judge, wrote that Gallagher fulfilled his obligation, regardless of what happened with the filing process.
“I find that the trial court complied with the mandate ... because it signed and dated the dismissal order within the statutory 90-day period,” Hudson explained.
No new court date has been scheduled for Perez’s case to resume in Kane County.