specially concurring:
Although I agree with the court’s holding, I write separately because I believe that today’s opinion provides too cursory an analysis concerning the construction of section 122—5 of the Post-Conviction Hearing Act (725 ILCS 5/122—5 (West 1996)). I also believe that the opinion has the potential to cause undue confusion in future cases.
Like my colleagues in the majority, I agree that the filing of an amended post-conviction petition will restart the 90-day period in which the circuit court may dismiss a petition as frivolous or patently without merit. Moreover, I agree that the reason the above is true is because the General Assembly has authorized the circuit court to allow for amended petitions, such as that at issue here, to be filed under the Act. That authorization can be found in section 122—5, as the court correctly holds. 187 Ill. 2d at 451. However, the court declares this holding in a single sentence (see 187 Ill. 2d at 451 (stating that the section “authorized] a court considering a post-conviction petition to allow amendments to the petition”) without first engaging in any statutory construction analysis. Instead, the opinion refers only to reasons of policy that support its interpretation of the language. See 187 Ill. 2d at 451. Although I do not disagree with the policy reasons identified in the court’s opinion, I feel that our analysis in this case should begin with an examination of the language contained in section 122—5.
Section 122 — 5 provides as follows:
“Within 30 days after the making of an order pursuant to subsection (b) of Section 122 — 2.1, or within such further time as the court may set, the State shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, the State must file an answer within 20 days after such denial. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. The court may in its discretion grant leave, at any stage of the proceeding prior to the entry of judgment, to withdraw the petition. The court may in its discretion make such order as to amendment of the petition or any other pleading, or as to pleading over, or filing further pleadings, or extending the time for filing any pleading other than the original petition, as shall be appropriate, just and reasonable and as is generally provided in civil cases.” (Emphasis added.) 725 ILCS 5/122—5 (West 1996).
The plain language of section 122—5 demonstrates that the section deals with two distinct subjects. The first relates to the State’s obligations once a petition has been docketed pursuant to section 122—2.1(b). Under section 122—5, the State, as the responding party, may seek a dismissal of the petition or else it may answer. If a motion to dismiss is denied, the State’s answer must be filed within 20 days after the denial unless more time is given by the court. The next portion of section 122—5, underscored in the above quotation, relates to the discretion the circuit court has in its control of the case “at any stage of the proceeding.” The General Assembly has permitted the circuit court to allow for a withdrawal of the petition and for any amendments “as shall be appropriate, just, and reasonable, and as is generally provided in civil cases.” Under our rules of civil procedure, which govern civil cases, a plaintiff may seek to amend its original pleading with leave of court prior to entry of a final judgment. See 735 ILCS 5/2—616(a) (West 1996).
When a court engages in statutory construction, as we do here, its sole task is to ascertain and give effect to the intent of the legislature. To do so, the court must look first to the language of the statute, examining the language as a whole and considering each part or section in connection with every other part or section. Antunes v. Sookhakitch, 146 Ill. 2d 477 (1992). In so doing, I find no reason to read section 122—5 in isolation, as the dissent suggests. 187 Ill. 2d at 456-58 (Rathje, J., dissenting). The first half of section 122—5 refers back to section 122—2.1(b). The second half of section 122 — 5 refers to any stage in the proceeding and, at one point, specifically refers to the period before the entry of a final judgment. Petitions dismissed as frivolous or as patently without merit are dismissed under section 122—2.1(a)(2) and such orders of dismissal constitute “final judgment[s].” 725 ILCS 5/122—2.1(a)(2) (West 1996). Thus, the discretion given in the latter portion of section 122 — 5 relates to any stage in the proceeding prior to the entry of a final judgment. Reading the statute as a whole and giving effect to its language, I find no support for the position that petitioners cannot file amendments (with court approval) under section 122—2.1, for such a prohibition is nowhere stated in the entirety of the Act.1 Nor do I find any support for the position that the latter provisions of section 122—5 apply only to petitions that are not frivolous or patently without merit. Today’s decision merely reaffirms this court’s longstanding recognition of the broad discretionary powers afforded by the legislature to the post-conviction judge. See People v. Wright, 149 Ill. 2d 36, 54-55 (1992) (and cases cited therein).
Nevertheless, the potential confusion to which I referred at the outset of this special concurrence will doubtless occur when one compares today’s holding with certain language found in People v. Gaultney, 174 Ill. 2d 410, 418 (1996), and relied upon today by the dissent. See 187 Ill. 2d at 456-59 (Rathje, J., dissenting). The dissent is right to point out the conflict between these two decisions. However, in my view, this language cited by the dissent from our decision in Gaultney inaccurately describes the procedures to be used in post-conviction proceedings. Specifically, in Gaultney, a majority of this court noted that during the first stage of a post-conviction proceeding, “the Act does not permit any further pleadings from the defendant.” Gaultney, 174 Ill. 2d at 418. In other words, Gaultney states that post-conviction petitioners, such as defendant, are precluded from filing the type of amendment at issue in this case. We today hold that such amendments are permitted under the Act. Although an argument can be made that the statement contained in Gaultney is merely dicta because it did not relate to the main question presented to this court for review, I believe that this court should avoid creating a situation in which conflicting lines of authority are allowed to compete. As the highest court in this state, we have an obligation to clarify our position whenever the need to do so arises, particularly since neither our circuit nor our appellate court possesses the authority to overrule or ignore our pronouncements. Because Gaultney is precedent of relatively recent vintage and because the court makes no mention of it, today’s opinion leaves both bench and bar with the unenviable task of having to discern which opinion provides the correct statement of law. In light of this seeming conflict, I would hold that, given the broad discretion given expressly to the circuit court in section 122—5 by the General Assembly, no principled reason exists to disregard that language and preclude post-conviction petitioners the chance to amend their original petitions. Therefore, to the extent the statement in Gaultney suggests or holds that such amendments are not permitted under the Act, that statement should not be considered binding authority.
In my view, the result obtained here by the court is faithful to the plain language of the Act and is consistent with our past holdings concerning the wide discretion given to the circuit court in these proceedings. Nevertheless, the court should speak definitively in order to avoid any potential conflict its holding today might create. In all other respects, however, I join in the court’s opinion.
If the General Assembly intended to prohibit the filing of such amendments, one would think that such a prohibition would appear within the body of section 122—2.1(a).