Appeal from the Circuit Court of Lake County. No. 97-CF-2369 Honorable James K. Booras, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Spence concurred in the judgment and opinion.
¶ 1 Defendant, Juan M. Maiden, 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 (Code) (735 ILCS 5/2-1401 (West 2010)). He contends that under People v. Prado, 2012 IL App (2d) 110767, the trial court acted prematurely and that we should vacate the dismissal and remand for further proceedings. The State contends that we lack jurisdiction because defendant failed to show that he timely mailed his notice of appeal. We determine that we have jurisdiction, vacate the dismissal, and remand for further proceedings.
¶ 2 I. BACKGROUND
¶ 3 In May 1998, defendant was convicted of two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1994)). On February 9, 1999, he was sentenced to two consecutive 20-year prison terms. Defendant's convictions were affirmed on appeal. People v. Maiden, 318 Ill.App.3d 545 (2001); People v. Maiden, No. 2-99-0306 (2000) (unpublished order under Supreme Court Rule 23).
¶ 4 On April 4, 2011, defendant filed a petition for relief from judgment. Defendant included notices indicating that the petition was served on the State's Attorney by regular mail. On May 26, 2011, the State informed the trial court that it never received a copy of the petition. The court, on its own motion, allowed an extension of 30 days for the State to file a responsive pleading or motion.
¶ 5 On June 27, 2011, the State informed the court that it was not going to file anything and told the court that, under People v. Vincent, 226 Ill.2d 1 (2007), the court could rule sua sponte on the petition. There was no specific motion to dismiss. On July 15, 2011, the court sua sponte dismissed the petition on the merits. Defendant moved for reconsideration and, on November 16, 2011, the court denied the motion.
¶ 6 Defendant filed a notice of appeal, which was file-stamped on December 21, 2011. Defendant included a notarized certificate, which stated that he put his notice in the mail at the prison on December 13, 2011, properly addressed for mailing to the State's Attorney and the clerk of the court through the United States Postal Service. However, he did not state that it included proper prepaid postage. The record does not contain an envelope for the filing.
¶ 7 II. ANALYSIS
¶ 8 Defendant contends that the trial court improperly dismissed his petition on the merits sua sponte. The State contends that this court lacks jurisdiction because defendant did not properly comply with Illinois Supreme Court Rule 12(b)(3) (eff. Dec. 29, 2009), rendering his appeal untimely. Specifically, the State notes that defendant did not state in his certificate that his notice of appeal was sent with proper prepaid postage.
¶ 9 "A timely filed notice of appeal is necessary to establish this court's jurisdiction." People v. Lugo, 391 Ill.App.3d 995, 997 (2009). Here, because defendant's notice of appeal was received after the deadline, it was timely if defendant satisfied Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009). That rule states:
"Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing *** shall be deemed the time of filing. Proof of mailing *** shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial ...