Court of Appeals of Illinois, First District, Second Division
Modified upon denial of rehearing April 22, 2014.
Rule 23 filed March 4, 2014. Appeal from the Circuit Court of Cook County. No. 02 CR 16884. Honorable Kevin M. Sheehan, Judge Presiding.
Judgment vacated; cause remanded for further proceedings.
The trial court's sua sponte dismissal of the petition defendant filed under section 2-1401 of the Code of Civil Procedure challenging the firearm enhancement of his sentence for murder was reversed and the cause was remanded on the ground that the dismissal was premature, since defendant served the petition by regular mail, not by summons, certified or registered mail or publication, as required by Supreme Court Rule 105(b), and although the prosecutor was in court, no formal waiver of service was entered on the record.
Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Michelle Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Simon and Liu concurred in the judgment and opinion.
[¶1] Defendant appeals from the circuit court's sua sponte dismissal of his petition under section 2-1401 of the Code of Civil Procedure (Civil Code). (735 ILCS 5/2-1401 (West 2012)). He argues that this court must remand the case because the circuit judge's sua sponte dismissal of his petition for relief from judgment on the merits was premature given that the petition was not properly served on the State. We agree and for the foregoing reasons, remand the cause to the circuit court for further proceedings.
[¶3] Following a bench trial, defendant was convicted of the murder of Edmond Allen. This court upheld his conviction on appeal. People v. Carter, 363 Ill.App.3d 1193 (2006) (unpublished order under Supreme Court Rule 23). Defendant's subsequent postconviction petition was dismissed by the trial court and that dismissal was also affirmed. People v. Carter, 389 Ill.App.3d 1144, 976 N.E.2d 1208, 364 Ill.Dec. 645 (2009) (unpublished order under Supreme Court Rule 23).
[¶4] Defendant mailed his section 2-1401 petition, wherein he challenged his sentence for the murder, on May 9, 2012. Specifically, defendant argued that the 25-year firearm enhancement he received was void because the trial judge only found him guilty of general murder and his sentence would only be 30 ...