An incarcerated defendant’s affidavit that he timely placed his notice of appeal in the prison mail was sufficient to comply with the notice requirement and gave the appellate court jurisdiction over his appeal from the trial court’s sua sponte denial of his petition filed under section 2- 1401 of the Code of Civil Procedure, and in the absence of anything in the record showing that the State filed a specific motion to dismiss or any other responsive pleadings or motions before the trial court dismissed defendant’s petition, save the State’s argument that the trial court could sua sponte dismiss the petition, the 30-day period for the State to file a responsive pleading never commenced and the sua sponte dismissal was vacated as premature, and the cause was remanded for further proceedings.
Appeal from the Circuit Court of Lake County, No. 97-CF-2369; the Hon. James K. Booras, Judge, presiding.
Peter A. Carusona and Santiago A. Durango, both of State Appellate Defender’s Office, of Ottawa, for appellant.
Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M. Bauer and Sally A. Swiss, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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 People v. Maiden, 318 Ill.App.3d 545 (2001); People v. Maiden, No. 2-99-0306 (2000) (unpublished order under Supreme Court Rule 23).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 ...