I respectfully dissent. The petitioner maintains on appeal that his petition for habeas corpus should not have been denied without an evidentiary hearing to determine whether he had received notice of the issuance of the mandate of the appellate court denying the appeal of his conviction. I agree and would reverse the trial court and remand for a hearing to determine whether the petitioner or his attorney received notice of the issuance of the appellate court’s mandate.
An unreasonable delay between the pronouncement and imposition of sentence may be a circumstance warranting the release of a habeas corpus petitioner. People ex rel. Millet v. Woods, 55 Ill. 2d 1, 3 (1973), citing People ex rel. Powers v. Shattuck, 274 El. 491 (1916). It is well settled, however, that once the mandate of the appellate court has been issued and spread of record in the circuit court, any ensuing delay in the petitioner serving his sentence is attributable to him. Walker v. Hardiman, 116 Ill. 2d 413 (1987); Crump v. Lane, 117 Ill. 2d 181 (1987).
The petitioner maintains that implicit in the Walker and Crump holdings is a requirement that he or his attorney receive notice that the mandate was issued and spread of record. I agree. In Walker, the supreme court stated:
"We also believe that our decision in this case will now make it clear that once the State moves to have the appellate court mandate spread of record in the circuit court, and the defendant is so notified, any delay in surrendering will be attributable to the defendant.” (Emphasis added.) Walker, 116 Ill. 2d at 424.
Likewise, the Crump court expressly followed the language from Walker:
"Thus, as we held in Walker, the appellate court mandate having been spread of record in the circuit court promptly after the denial of Crump’s petition for leave to appeal and Crump’s attorney having been notified, the ensuing delay in Crump’s incarceration was chargeable to him and not the State.” (Emphasis added.) Crump, 117 Ill. 2d at 184-85.
I also note that the Walker court discussed with approval People ex rel. Rogers v. Elrod, 35 Ill. App. 3d 26 (1975), wherein the court framed the issue before it as:
"[W]hether counsel for petitioner and the petitioner, who had been admitted to bail, had notice of the issuance of the mandate so as to have established an affirmative duty on petitioner to surrender in compliance with section 110 — 10(b)(5) of the Code of Criminal Procedure. [Citation.]” Rogers, 35 Ill. App. 3d at 27.
In the matter sub judice, the mandate was issued from the appellate court to the circuit court of Peoria County on April 19, 1976. On April 20, 1976, the mandate was filed in the circuit court. The record does not establish, however, whether the petitioner or his attorney received notice of the issuance of the mandate so as to have established his duty to surrender himself without further notice. In order to properly rule on the petitioner’s petition for habeas corpus, the trial court must take evidence and make a factual determination as to whether the petitioner or his attorney was notified of the issuance of the mandate.
For the foregoing reasons, I respectfully dissent.