## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MARTI N PRADO, Def

endant- Appellant.

District & N o. Second District Docke t No. 2-11-0767

Filed November 2, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The dismiss al of defe ndant’s petition under section 2-1401of the Code of Civil Procedur e was vacated and the cause was rema nded for further proce eding s, since the sua sponte dismiss al on the merits was premature in view of defe ndant’s failure to properly serve the petition on the State and the proper dispositi on was to rema nd the petition to allow defe ndant
to proper ly serve the State or permit the trial court to dismiss the case for want of pr osecution af

ter a rea sonable time.

Dec ision Under Review Appea l from the Circuit C o u rt of Kane County
, No. 06-CF- 1070; the Hon. Timothy

Q. Sheldon, J udg e, pre siding.

J udg ment Vac ated a nd rema nded.Counsel on

Appea l T h o m as A. L ilien and Steven E. Wil tge n, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Kristin M. Schwind, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel) for the People.

Panel J USTI CE McL AREN delivere d the judgme nt of the court, with opinion.
J ustices Hutchinson and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant, Martin Prado, appea ls the trial court’s sua sponte dismiss al on the merits of his petition for relief from judgme nt, filed under s ec tion 2-1401 of the Code of Civil Procedur e (735 I L CS 5/2-1401 (West 2010)). Def endant’ s petition was not proper ly serve d on the State. He c ontends that, under People v . Nitz , 2012 I LApp (2d) 091165, ¶ ¶ 5-6, the trial court acte d prematurely and the dismiss al should have been without prejudice

. We ag ree that the di smissal was premature

. Howe v er , we decline to follow Nitz
, which resulted in a dismiss al without prejudice

. I nstead, we vacate the di s missal and rema nd for further proce eding s.

¶ 2 I . BA CKGROUND ¶ 3 I n October 2007, defe ndant was convicted of two counts of ag g ravated kidnapping (720 I L CS 5/10-2(a) (1), (a) (3) (West 2006)). We aff irmed on appea l. People v. Prado
, No. 2-08- 0774 (2010) (unpublished order under Supreme Court Ru l e 2 3 ). De fenda nt then filed a section 2-1401 petition. The rec ord is unc lear as to when that petition was filed. The proof of service indi cate d that it was filed on May 13, 2 010, and the trial court found that it was filed on that date. Howeve r, the petition and its supporting documents wer e all file-stampe d by the circ uit cler

k on J une 10, 2011. The proof of service indicated that the petition was sent by regular mail instead of cer tif i ed o r reg istered mail. On J uly 7, 2011, the trial court sua sponte dismiss ed the pe tition on t he mer its. Defenda nt appea ls.

¶ 4 I I . ANALYSI S ¶ 5 Def

endant conce des that the petition wa s not pr operly serve d, but he arg ues that, under Nitz , the dismissal should have been w ithout prejudice. ¶ 6 Section 2-1401 provides a compre hensive civil proce dure that allows for the vacatur of

a final judgme nt older than 30 day s. Nitz
, 2012 I L App (2d) 091165, ¶ 9. “The petition must

-2-be filed no t l at er t h an two y ear s following the entry of judgme nt, excluding time during

wh i ch the petitioner is under a leg al disability or duress or the g round for rel i ef i s fra udulently conce aled.” Id. Whil e the petition must be filed in the same proce eding in which the j udg ment was entered, it is not a co n t i n u at i o n of t hat proceeding

. Id. (citing 735 I L CS 5/2-1401(b) (West 2008)). “The petition must be supported by aff idavit or other appropr iate showing as to matters not contained in the rec ord.” Id. (citing 735 I L CS 5/2-1401(b) (West 2008)). “All parties to the petition shall be notified as provided by rule.” Id. (citing 735 I L CS 5/2-1401(b) (West 2008)). “The rule ref err ed t o i n s ec t ion 2-1401(b) is I llinois Supreme Court Rule 106 (ef

f. Aug . 1, 1985), which provides that notice of the fil ing of a section 2- 1401 petition sha ll be g iven by the same me thods provided in I llinois Supreme Court Rule 105 (ef f. J an. 1, 1989) for g iving notice of additional relief to pa rties in de fault.” Id. Under Rule 105, the notice shall be direc ted to the party and must be serve d either by summons, by prepa id c ertified or reg istered mail, or by publication. Id. ; see I ll. S. Ct. R. 105( b) (ef f. J an. 1, 1989). “The not ice must state t hat a judgme nt by defa ult may be taken ag ainst the party unless he files an answe r or otherwise files an appea ranc e within 30 day s afte r service .” Nitz
, 2012 I L App (2d) 091165, ¶ 9 (citing I ll. S. Ct. R. 1 0 5 (e ff

. J an. 1, 1989)). “[B]ecause the trial court dismissed the petition based on the ple ading alone, our revie w is de novo .” Id. ¶ 7 I n Nitz
, “[w]hi le d ef endant’s proof of service show[ed] that he mailed the [section 2- 1401] petition to the Du Pag e County circ uit cler k for filing, there [was] no proof of service

on the State.” Id. ¶ 5. The trial court sua sponte dismiss ed the petition on the merits. A panel of this c ourt rea soned that the dismiss al was proper , beca use a failure to g ive notice results in a def icient pleading

. Id. ¶ 13. Howe ver, dismiss al on the mer its was premature, be cause the 30 day s for the State to answe r had not y et commence d. Id. ¶ 12. The panel then deter mined that a rema

nd for further proce eding s would be mea ningle ss, rea soning that no further proce eding s would occur , beca use the State would never answe r or move to dismiss
, and the court would be unable to take action while the case re m ai n ed on its docket perma nently

. Id. Thus, the panel con c lu d e d that the appropr iate action was to dismiss without prejudice for a defic iency in comply ing with section 2-1401. Id. ¶ 13. Acco rd i n gl y , i t af fi rmed the dismiss al, but modified the order to ref lect that the dismiss al was wi t h o u t prejudice

. Id. ¶ 15. ¶ 8 Her e, we ag ree that the dismiss al was premature. Howeve r, we disag ree that the proper dispositi on is to dismiss without prejudice

. I nstead, we ag ree with the Four th District, which

rec ently noted that rema

nding for further proce eding s would not be meaning less or result in the case being perma

nently set on the trial court’s docket. Powell v. Lewellyn
, 2012 I L App (4th) 110168, ¶ 14. ¶ 9 Contrary to the deter mination in Nitz
, if defe ndant wishes to have his case hear d, he ca n promptly serve the State. Id. Otherw ise, the trial court has the power to dismiss the case for
want of pros ec u t i o n , afte r a rea sonable period of time. Id. Fur ther, the action may be dismiss ed under I llinois Supreme Court Rule 103(b) (ef f. J uly 1, 2007) if defe ndant fails to exercise rea sonable diligenc e in serving the State. I n any ev en t , an immediate, sua sponte dismiss al, even without prejudice
, is premature. Acc ording ly
, the appropr iate dispositi on is
to vacate and r emand f

or fur ther proc eeding s. ¶ 10 Citi ng to People v. W allace
, 405 I ll. App. 3d 984 (2010), the State argues that the petition

-3-was proper ly dismiss ed with prejudice
, beca use defe ndant attempted to serve it and beca use judicial eff

iciency rende rs modification of the or der unne cessa ry . We disag ree

. ¶ 11 I n W

allace
, the defe ndant filed a section 2-1401 petition but did not proper ly serve it. The State moved to dismiss
, and the defe ndant attempted to c ure the problem by responding by

cer tified mail. The trial court dismiss ed th e p et i t i o n and, on appea l, we held that the trial
court should have quashed the service instead of dismiss ing the petition. Id. at 986. We noted that the law favor s resolut i o n o n t h e merits and that dismiss al for a technica l service flaw should be a disfavore d option. Thus, if the court is to dismiss
, there should be a clea r rea son for doing s o b ey o n d t h e technica l flaw. See id. at 988. Be cause no such clea r rea son was prese nt in the case , and beca use the defe ndant had made a prompt attempt to cu re t h e problem, the trial c ourt abused its discre tion when it dismi ssed the petition. Id. ¶ 12 The State argues that, as in W allace
, defe ndant attempted to serve the petition but did so incorre ctly

. I t the n arg

ues that the conce rns in W allace about adjudication on the merits do
not apply
, beca

use the rec ord shows that the court here rec eiv ed an d fu l ly considere d the

m er its of the petition, making it unnece ssary to rema nd for such a deter

mination. But the State’s arg

ument misses the point that a sua sponte dismiss al on the m er i t s i s p remature when the State has not been proper ly serve d. Should the State wish to make the dispositi on of cases such as this one more eff icient, t he best course would be to waive an obj ection to the defe ctive service

. The action could then proce ed normally throug h an adjudication on the merits.

¶ 13 I I I . CONCL USI ON ¶ 14 The dismiss al on the merits was prema ture. Acc ording ly
, we vacate the judgme nt of the circ uit court of Ka

ne County

and re mand for f

urther pr ocee dings.

¶ 15 Vac ated a

nd rema nded.

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