No. 2-09-0185 Filed: 9-29-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff -Appella nt, )

) v. ) No. 02--DT--3825 ) MICH AEL J . GLO WA CKI, ) Honorab le ) Brian P. Hughes , Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE JORGENSEN d

elivere d the opini on of the c ourt: The State app eals from the dismi ssal of its p etition under section 2--1401 of the Code of Civil Procedure (Code) (735 IL CS 5/2--1401 (West 2008)) in which it sought vacation of the trial court 's order settingthe case of defe ndant, Michael J. Glowacki, for a pretrial hearing. B ecause the State's petition w as insuff

icient, w e affir

m the dismis sal. I. BACKGROUND OnSeptember

1, 2002, a Lake County

sheriff's deputy

cited defendant for driving under the influence of alcohol (DUI ) (625 IL CS 5/11--501(a)(2) (West 2002)). Defendant was released that day on a $20,000 pe

rsonal recognizance bond with a court date of September 19, 2002. OnSeptember 19, 2002, defendant did not appear, and the cour t issued notice to him

that, if he did not appear within 30 day s, he would forfeit his bond.No. 2--09--0185

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OnOctober 24, 2002, the court entered an orde r that de fendant had forfeit ed the bon

d; it entered judgment for $20,000 in favor of the State. That d ay's minute order indicated that the court also issued a warrant for defendant' s arrest. The warrant was never served and neither the State nor defendant took any

action until November 2007. OnNovember 29, 2007, defendant filed a "Motion to Set Date for Defendant to SelfSurrender." OnJanuary

16, 2008, he filed a

"Motion to

Vacate Bond Forfeitur

e Pursuan t to 735 I LCS 5/2--1401." On January 18, 2008, the court qua shed the arrest warrant associated w ith the bond forfeiture. The State responded to defendant's section 2--1401 pe tition, asserting that the bond forfeitur e
was in effe ct a final conviction. Therefore, the petition was untimely under section 2 --140 1(c) of the Code (735 I

LCS 5/2 --1401( c) (West 2 008)), w hich, with exception s not appli cable to defenda nt, requires that a party f

ile a petition within two years of the entry of t he final order that the petition attacks
. OnJune 13, 20 08, the c ourt d enied defend ant's p etit ion; no reco rd ex ists of tha t heari ng. OnJuly 9, 2008, defendant moved to reconside r. He argued that

the trial court ha d erred in ruling that it lacked jurisdiction to set a pretrial date. A bys tander' s report

shows tha

t, on Octo ber 29, 2 008, the c ourt hea rd defe ndant' s motion to reconsider

and, as a result, se t a January 20, 2009, pretrial da te. A March

26, 2009, order that the court made nunc pro tunc to October 29, 2008, st ated that defendant's motion to reconsider was denied to the extent that it sought vacation of the bond forfeiture but was granted to the e xtent thatNo. 2--09--0185

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it requested the setting of a pretrial date . In other words, it decided that the bond f orfeiture was final but that no final conviction existed. On January 15, 2008, the State filed a petition under section 2--1401 seeking to vacate the October 29, 2008, order setting a pretrial date. The State a rgued that, because the two-y ear period for filing a section 2--1401 petition had passed, the court had lacked juris dicti on to hear de fendan t's petition. It also argue d that defendant had failed to prop erly support hi s petition w

ith affid avits. However, it did not expl ain why it had wai

ted more than 30 da

ys t o chall enge th e court 's ord er. In other words, the State fa

iled to all ege due dilige

nce in presenting its defense in the original ac tion and due diligence in filing its section 2--1401 petition. OnJanuary 20, 2009, the

court dismissed the State's section 2--1401 petition, r easoning that, altho ugh the bond forfeiture might be final as to the money judgme

nt, no final criminal conviction had entered. The State promptly appealed. II. AN ALYS IS Onappeal, the State argues that the bond forf eiture did amountto a final DUI conviction and that, therefore, the trial court erred in g ranting defendant a trial for DUI . The State also asserts that
a section 2--1401 petition was a proper means to attack the Oc tober 29, 2008, order s et ting the pretrial hearing. I

t argues that, because defe ndant's section 2--1401 petition was untimely, the trial court lacked jurisdiction to conside r it. The St

ate arg ues: "The People know of no r ule that would

revest the circu

it court wit h jurisdiction to reopen a traffic convicti on five y

ears af ter the e ntry of the bon

d forfe iture judg

ment.
***No. 2--09--0185

-4- Here, the trial court's jurisdiction was limited to considering the defendant's petition for relief from judgment under sec tion 2--1401***. 735 IL CS 5/2--1401. However, once the court denied the petition because it presented no f acts that could have extended the limitations period, i

t had no ju

r isdiction to consider the underlying conviction. *** 735 IL CS 5/2--1401(c). The court recognized that it lacked jurisdiction when it initially denied the defendant's motion to set a trial date***, but it change d its position when it gran te d defendant's motion to set a pretrial date." Regar dless of wheth er the bond forfe iture in 20 02 was, a s the State claims, a final conviction, the Stat e's petition fails . On one hand, if the forfeiture was not the equivale nt of a final conviction, thenthe trial court did not err in setting the matter for pretrial. On that as sumption, th e Sta te's petition fails on its merits. On the other ha nd, even if the forfeiture did amount to a final conviction, the State 's petit

ion still wa s insuffic ient. Ge ne ra ll y: "To be entitled to relief under section 2- -14 01, the pe titioner m ust affir matively set forth specific factual allegationssupporting each of the following eleme nts: (1) the existence of
a meritorious defense or claim; (2) due diligen ce in pre senting

this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2--1401 petition for relief." Smith v. Airoom, Inc. , 114 Ill. 2d 209, 220-21 (1986). The State did

not attempt to set forth either of the diligence elements; instead it relied on an exception to the diligence requirements. Specifically, the State a rgues that the c ourt's order wa s void and that diligence thus was unnecessary , as a party

can use a section 2--1401 petition to cha llengeNo. 2--09--0185

1 Even before Bellevi lle Toy

ota , courts had long recognized that, as a r esult of s ectio n 2--14 01's origins in common law, its limitations period was nonjurisdictional. E.g. , People v. Ross , 191 Ill. App. 3d 1046, 1053 (1989). -5- a void orde r, reg ardless

of its diligence in the matter. See Sarkissian v. Chicago Board of Education , 201 Ill. 2d 95, 104 (2002). Anorder is void only if the cour t thatentered it lacked jurisdiction. People v. Davis , 156 I ll. 2d 149, 155 ( 1993). Th

us, as the trial cou rt clear ly h ad personal jurisd

ictio n over the parties, the issue is whether it had subject matter jurisdiction to grant defendant's section 2--1401 petition. The State asserts t

hat the tw o-year time

limit for f

iling se ction 2-- 1401 petit ions (see 735 I LCS 5/2--1401(c) (West 2008 )) is jurisdictional and that, therefore, the court lacked jurisdiction to grant defenda nt's lat e petition . That ass ertion is a bsolutely incorre ct. In Belleville Toyota , Inc. v. Toy ota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 333 (2002), wh ich neither

party here ci tes, a pa rty argue d that a tr

ial cour t had exce eded its j urisdiction b y enteringa statutor

ily time-barred judgment. The supreme cour t held that a trial court's jurisdiction is derived from the constitution and is not subject to such statutory limitations. Bellevi lle Toy ota , 199 Ill. 2d at 338-41. 1 Under this rule, most void judgments occur when the trial cou rt lac ks personal jurisdiction; failures of subject matter jurisdiction are unusual. The State relies on section 2- -1401(c) as the source of the alleged jurisdictional failure . This is exactly the kind of statutory limitation addressed by the supreme court in Bellevi lle Toy

ota . As the Bellevi lle Toy

ota court stated:

" '[S]ubject matter jurisdiction' refers to the power of a court to hear and deter mine cases of the ge neral class to which the proceeding in que stion belongs. [Citations.] With theNo. 2--09--0185

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exception of the ci

rcuit co urt's power to re

view admi

nistrativ e action , which is conferred by statute, a circu

it court' s subject

matter ju

risdiction is conferre d entire ly by ou r state constitution. *** Thus, in or der to invoke the

subject ma

tter juri sdiction o f the cir

cuit cour t,
a plaintiff 's case , as fra

med by the compl aint o r petition, must present a justiciable matter. [Citations.]
*** [A] 'justic iable mat

ter' is a contro versy

appropr iate for review by th e court, in that it is definite or concrete, as opposed to hy pothetical or moot, t ouchi ng u pon the legal relations o f parties hav ing adverse int erests." Bellevi lle Toy ota , 199 Ill. 2d at 334-35. Some caselaw sugge sts that the legisla ture, in d efining a new jus ticiable

matter, may

impose "conditions preced

ent" to the court' s exercise of jurisdi c tion that cannot be waived. See In re Marri age of Fields , 288 Ill. A pp. 3d 1053, 1 057 (1997). However, the Bellevi lle Toy ota court
necessa rily rejecte d this view

as contr ary to articl e VI

of the Illinois Cons titution, w hich state s that, except in the ar ea of ad ministrati ve revie w, the ju ri sdiction of the circuit court flows from the constitution. Bellevi lle Toy ota , 199 Ill. 2d at 335-36, citing I ll. Const. 1970, art. VI, §9. Onthe assumption that the forfeiture amounted to a conviction, defendant' s filing of a section 2--1401 petition g ave the c ourt ju risdiction to r eopen tha

t judgme nt. Any error by th e court i

n evaluatingthe pet ition--in cluding its timeliness--did not affect the court's jurisdiction over the subject matter . See Davis , 156 I ll. 2d at 156 (a court does "not lose jurisdict ion beca use it make s a mistake indetermining either the facts, the law or b oth"). A s an aside , the State seems to su

gges t that the court's initial ruling--that the petition was too l ate-- divested the cour t of jurisd

iction to reconsider

that ruling. The State has not supported that theory of jur isdiction by a

ny c itation toNo. 2--09--0185

-7-

au th or it y; we know of no authority that would support such a theory . We t herefor e reject this argume nt. In sum, the trial

court derived its subject matter jurisdiction from the Illinois Constitution, notthe leg islature . Thus, the trial cou rt had the authority to hear and rule on defendant' s section 2-- 1401 petition. To the extent that the State's section 2--1401 petition erroneously relied on a voidnes s argument to excuse its failure to allege diligence, said er ror was fatal and

the petiti on was pr

operly dismissed. III. CONCL USION Fo r the reasons stated, we affirm the order of the trial court dismissing the Stat e's pe titio n under section 2--1401. Affirmed. O'MALL EY and HUDSON, JJ., concur.