dissenting in part:
I dissent from the majority’s holding regarding strict application of the 90-day limitation of section 122 — 2.1(a) of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122—2.1(a) (West 1998)) in the context of an appeal of the dismissal of a petition as untimely. The filing of a notice of appeal deprives a trial court of jurisdiction over substantive matters within the scope of the subject of the appeal. In re A.P., 285 Ill. App. 3d 897, 901 (1997). When the trial court in our case dismissed defendant’s pro se postconviction petition as being untimely and defendant timely appealed that decision, the trial court was without jurisdiction to make further rulings on the petition. If the trial court determined that defendant’s petition was frivolous or patently without merit while this appeal was pending, defendant would certainly have another meritorious appeal based upon the trial court’s lack of jurisdiction. Imposing a requirement upon a trial court to rule on the merits of a postconviction petition while an appeal is pending regarding the timeliness of the petition, as suggested by the majority, would result in unnecessary appeals.
If a defendant appeals the dismissal of a postconviction petition as being untimely, the reality is that the 90-day limitations period will almost certainly expire before the appellate court rules on the issue. The briefing schedule alone will exhaust most of the period. Furthermore, the application of the 90-day limitation as the majority suggests would allow defendants to circumvent fhe process of evaluation of postconviction petitions set out in the Act. In my view, the legislature could not have intended such a result in enacting the 90-day limitation of section 122 — 2.1(a) of the Act.
Instead, I construe the appeal taken by defendant as tolling the 90-day limitations period. Upon docketing the mandate from the appellate court reversing the initial dismissal of the petition as untimely, the 90-day limitations period would begin to run anew. I find support for this interpretation in People v. Douglas, 296 Ill. App. 3d 192 (1998). In Douglas, the Appellate Court, Fourth District, recognized an extension of the 90-day limitations period when the defendant filed an amended postconviction petition. The court reasoned:
“[U]nder defendant’s proposed construction of section 122 — 2.1(a), a defendant could file an amended petition on day 88 of the 90-day period, thus giving the trial court only two days to examine and rule upon the amended petition. Clearly, the legislature could not have intended such an absurd result. We note that the legislature has instead shown its intent to give trial courts more time to examine and rule upon postconviction petitions when it amended section 122 — 2.1 of the Act (effective January 1, 1993) to increase the amount of time for such examination and ruling from 30 days to 90 days.” (Emphasis in original.) Douglas, 296 Ill. App. 3d at 196.
Here, once defendant appealed the original dismissal of his post-conviction petition as untimely, the trial court was divested of jurisdiction to decide whether the petition was frivolous or patently without merit. Any effort by the trial court to make a ruling on the petition while the appeal regarding timeliness was pending would have been improper.
This defendant has now had a direct appeal, an appeal of the trial court’s dismissal of his postconviction petition as untimely, and now this appeal. The rigid application of the 90-day limitation period as suggested by the majority will potentially give the defendant yet another bite of the appellate apple. Judicial economy would have been better served had the trial court examined and ruled upon the petition under section 122 — 2.1(a) of the Act at the same time as it ruled on the timeliness of the petition. Nevertheless, I feel the better course for this court to take would be to review the trial court’s section 122— 2.1(a) finding since our standard of review of such findings is de novo anyway. See People v. Coleman, 183 Ill. 2d 366, 389 (1998). If our review revealed error by the trial court I would remand the cause for further proceedings. If not, I would affirm the trial court’s section 122 — 2.1(a) dismissal of defendant’s petition.
I, therefore, respectfully dissent from that part of the opinion applying a strict 90-day limitation in the context of an appeal of the dismissal of a postconviction petition as untimely. However, because this cause is being remanded, I concur with the majority’s holding that the trial judge should recuse himself if it is determined that he appeared as an assistant State’s Attorney in this matter.