                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Prado, 2012 IL App (2d) 110767




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARTIN PRADO, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0767


Filed                      November 2, 2012


Held                       The dismissal of defendant’s petition under section 2-1401of the Code of
(Note: This syllabus       Civil Procedure was vacated and the cause was remanded for further
constitutes no part of     proceedings, since the sua sponte dismissal on the merits was premature
the opinion of the court   in view of defendant’s failure to properly serve the petition on the State
but has been prepared      and the proper disposition was to remand the petition to allow defendant
by the Reporter of         to properly serve the State or permit the trial court to dismiss the case for
Decisions for the          want of prosecution after a reasonable time.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 06-CF-1070; the
Review                     Hon. Timothy Q. Sheldon, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                 Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Kristin M. Schwind, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel) for the People.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Burke concurred in the judgment and opinion.




                                              OPINION

¶1           Defendant, Martin Prado, appeals the trial court’s sua sponte dismissal on the merits of
        his petition for relief from judgment, filed under section 2-1401 of the Code of Civil
        Procedure (735 ILCS 5/2-1401 (West 2010)). Defendant’s petition was not properly served
        on the State. He contends that, under People v. Nitz, 2012 IL App (2d) 091165, ¶¶ 5-6, the
        trial court acted prematurely and the dismissal should have been without prejudice. We agree
        that the dismissal was premature. However, we decline to follow Nitz, which resulted in a
        dismissal without prejudice. Instead, we vacate the dismissal and remand for further
        proceedings.

¶2                                        I. BACKGROUND
¶3          In October 2007, defendant was convicted of two counts of aggravated kidnapping (720
        ILCS 5/10-2(a)(1), (a)(3) (West 2006)). We affirmed on appeal. People v. Prado, No. 2-08-
        0774 (2010) (unpublished order under Supreme Court Rule 23). Defendant then filed a
        section 2-1401 petition. The record is unclear as to when that petition was filed. The proof
        of service indicated that it was filed on May 13, 2010, and the trial court found that it was
        filed on that date. However, the petition and its supporting documents were all file-stamped
        by the circuit clerk on June 10, 2011. The proof of service indicated that the petition was sent
        by regular mail instead of certified or registered mail. On July 7, 2011, the trial court sua
        sponte dismissed the petition on the merits. Defendant appeals.

¶4                                        II. ANALYSIS
¶5          Defendant concedes that the petition was not properly served, but he argues that, under
        Nitz, the dismissal should have been without prejudice.
¶6          Section 2-1401 provides a comprehensive civil procedure that allows for the vacatur of
        a final judgment older than 30 days. Nitz, 2012 IL App (2d) 091165, ¶ 9. “The petition must

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       be filed not later than two years following the entry of judgment, excluding time during
       which the petitioner is under a legal disability or duress or the ground for relief is
       fraudulently concealed.” Id. While the petition must be filed in the same proceeding in which
       the judgment was entered, it is not a continuation of that proceeding. Id. (citing 735 ILCS
       5/2-1401(b) (West 2008)). “The petition must be supported by affidavit or other appropriate
       showing as to matters not contained in the record.” Id. (citing 735 ILCS 5/2-1401(b) (West
       2008)). “All parties to the petition shall be notified as provided by rule.” Id. (citing 735 ILCS
       5/2-1401(b) (West 2008)). “The rule referred to in section 2-1401(b) is Illinois Supreme
       Court Rule 106 (eff. Aug. 1, 1985), which provides that notice of the filing of a section 2-
       1401 petition shall be given by the same methods provided in Illinois Supreme Court Rule
       105 (eff. Jan. 1, 1989) for giving notice of additional relief to parties in default.” Id. Under
       Rule 105, the notice shall be directed to the party and must be served either by summons, by
       prepaid certified or registered mail, or by publication. Id.; see Ill. S. Ct. R. 105(b) (eff. Jan.
       1, 1989). “The notice must state that a judgment by default may be taken against the party
       unless he files an answer or otherwise files an appearance within 30 days after service.” Nitz,
       2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). “[B]ecause the
       trial court dismissed the petition based on the pleading alone, our review is de novo.” Id.
¶7          In Nitz, “[w]hile defendant’s proof of service show[ed] that he mailed the [section 2-
       1401] petition to the Du Page County circuit clerk for filing, there [was] no proof of service
       on the State.” Id. ¶ 5. The trial court sua sponte dismissed the petition on the merits. A panel
       of this court reasoned that the dismissal was proper, because a failure to give notice results
       in a deficient pleading. Id. ¶ 13. However, dismissal on the merits was premature, because
       the 30 days for the State to answer had not yet commenced. Id. ¶ 12. The panel then
       determined that a remand for further proceedings would be meaningless, reasoning that no
       further proceedings would occur, because the State would never answer or move to dismiss,
       and the court would be unable to take action while the case remained on its docket
       permanently. Id. Thus, the panel concluded that the appropriate action was to dismiss without
       prejudice for a deficiency in complying with section 2-1401. Id. ¶ 13. Accordingly, it
       affirmed the dismissal, but modified the order to reflect that the dismissal was without
       prejudice. Id. ¶ 15.
¶8          Here, we agree that the dismissal was premature. However, we disagree that the proper
       disposition is to dismiss without prejudice. Instead, we agree with the Fourth District, which
       recently noted that remanding for further proceedings would not be meaningless or result in
       the case being permanently set on the trial court’s docket. Powell v. Lewellyn, 2012 IL App
       (4th) 110168, ¶ 14.
¶9          Contrary to the determination in Nitz, if defendant wishes to have his case heard, he can
       promptly serve the State. Id. Otherwise, the trial court has the power to dismiss the case for
       want of prosecution, after a reasonable period of time. Id. Further, the action may be
       dismissed under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) if defendant fails to
       exercise reasonable diligence in serving the State. In any event, an immediate, sua sponte
       dismissal, even without prejudice, is premature. Accordingly, the appropriate disposition is
       to vacate and remand for further proceedings.
¶ 10        Citing to People v. Wallace, 405 Ill. App. 3d 984 (2010), the State argues that the petition

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       was properly dismissed with prejudice, because defendant attempted to serve it and because
       judicial efficiency renders modification of the order unnecessary. We disagree.
¶ 11       In Wallace, the defendant filed a section 2-1401 petition but did not properly serve it. The
       State moved to dismiss, and the defendant attempted to cure the problem by responding by
       certified mail. The trial court dismissed the petition and, on appeal, we held that the trial
       court should have quashed the service instead of dismissing the petition. Id. at 986. We noted
       that the law favors resolution on the merits and that dismissal for a technical service flaw
       should be a disfavored option. Thus, if the court is to dismiss, there should be a clear reason
       for doing so beyond the technical flaw. See id. at 988. Because no such clear reason was
       present in the case, and because the defendant had made a prompt attempt to cure the
       problem, the trial court abused its discretion when it dismissed the petition. Id.
¶ 12       The State argues that, as in Wallace, defendant attempted to serve the petition but did so
       incorrectly. It then argues that the concerns in Wallace about adjudication on the merits do
       not apply, because the record shows that the court here received and fully considered the
       merits of the petition, making it unnecessary to remand for such a determination. But the
       State’s argument misses the point that a sua sponte dismissal on the merits is premature
       when the State has not been properly served. Should the State wish to make the disposition
       of cases such as this one more efficient, the best course would be to waive an objection to
       the defective service. The action could then proceed normally through an adjudication on the
       merits.

¶ 13                                   III. CONCLUSION
¶ 14       The dismissal on the merits was premature. Accordingly, we vacate the judgment of the
       circuit court of Kane County and remand for further proceedings.

¶ 15      Vacated and remanded.




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