ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

MARTIN PRADO, Defendant-Appellant.

 District & No. Second District

Docket No. 2-11-0767

Filed November 2, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The dismissal of defendant’s petition under section 2-1401of the Code of

Civil Procedure was vacated and the cause was remanded for further

proceedings, since the sua sponte dismissal on the merits was premature

in view of defendant’s failure to properly serve the petition on the State

and the proper disposition was to remand the petition to allow defendant

to properly serve the State or permit the trial court to dismiss the case for

want of prosecution after a reasonable time.

Decision Under 

Review

Appeal from the Circuit Court of Kane County, No. 06-CF-1070; the

Hon. Timothy Q. Sheldon, Judge, presiding.

Judgment Vacated and remanded.
Counsel on

Appeal

Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate

Defender’s Office, of Elgin, for appellant. 

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.

Bauer and Kristin M. Schwind, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel) for the People.

Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.

Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Martin Prado, 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 (735 ILCS 5/2-1401 (West 2010)). Defendant’s petition was not properly served

on the State. He contends that, under People v. Nitz, 2012 IL App (2d) 091165, ¶¶ 5-6, the

trial court acted prematurely and the dismissal should have been without prejudice. We agree

that the dismissal was premature. However, we decline to follow Nitz, which resulted in a

dismissal without prejudice. Instead, we vacate the dismissal and remand for further

proceedings.

¶ 2 I. BACKGROUND

¶ 3 In October 2007, defendant was convicted of two counts of aggravated kidnapping (720

ILCS 5/10-2(a)(1), (a)(3) (West 2006)). We affirmed on appeal. People v. Prado, No. 2-08-

0774 (2010) (unpublished order under Supreme Court Rule 23). Defendant then filed a

section 2-1401 petition. The record is unclear as to when that petition was filed. The proof

of service indicated that it was filed on May 13, 2010, and the trial court found that it was

filed on that date. However, the petition and its supporting documents were all file-stamped

by the circuit clerk on June 10, 2011. The proof of service indicated that the petition was sent

by regular mail instead of certified or registered mail. On July 7, 2011, the trial court sua

sponte dismissed the petition on the merits. Defendant appeals.

¶ 4 II. ANALYSIS

¶ 5 Defendant concedes that the petition was not properly served, but he argues that, under

Nitz, the dismissal should have been without prejudice.

¶ 6 Section 2-1401 provides a comprehensive civil procedure that allows for the vacatur of

a final judgment older than 30 days. Nitz, 2012 IL App (2d) 091165, ¶ 9. “The petition must

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be filed not later than two years following the entry of judgment, excluding time during

which the petitioner is under a legal disability or duress or the ground for relief is

fraudulently concealed.” Id.While the petition must be filed in the same proceeding in which

the judgment was entered, it is not a continuation of that proceeding. Id. (citing 735 ILCS

5/2-1401(b) (West 2008)). “The petition must be supported by affidavit or other appropriate

showing as to matters not contained in the record.” Id. (citing 735 ILCS 5/2-1401(b) (West

2008)). “All parties to the petition shall be notified as provided by rule.” Id. (citing 735 ILCS

5/2-1401(b) (West 2008)). “The rule referred to in section 2-1401(b) is Illinois Supreme

Court Rule 106 (eff. Aug. 1, 1985), which provides that notice of the filing of a section 2-

1401 petition shall be given by the same methods provided in Illinois Supreme Court Rule

105 (eff. Jan. 1, 1989) for giving notice of additional relief to parties in default.” Id. Under

Rule 105, the notice shall be directed to the party and must be served either by summons, by

prepaid certified or registered mail, or by publication. Id.; see Ill. S. Ct. R. 105(b) (eff. Jan.

1, 1989). “The notice must state that a judgment by default may be taken against the party

unless he files an answer or otherwise files an appearance within 30 days after service.” Nitz,

2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). “[B]ecause the

trial court dismissed the petition based on the pleading alone, our review is de novo.” Id.

¶ 7 In Nitz, “[w]hile defendant’s proof of service show[ed] that he mailed the [section 2-

1401] petition to the Du Page County circuit clerk for filing, there [was] no proof of service

on the State.” Id. ¶ 5. The trial court sua sponte dismissed the petition on the merits. A panel

of this court reasoned that the dismissal was proper, because a failure to give notice results

in a deficient pleading. Id. ¶ 13. However, dismissal on the merits was premature, because

the 30 days for the State to answer had not yet commenced. Id. ¶ 12. The panel then

determined that a remand for further proceedings would be meaningless, reasoning that no

further proceedings would occur, because the State would never answer or move to dismiss,

and the court would be unable to take action while the case remained on its docket

permanently. Id.Thus, the panel concluded that the appropriate action was to dismiss without

prejudice for a deficiency in complying with section 2-1401. Id. ¶ 13. Accordingly, it

affirmed the dismissal, but modified the order to reflect that the dismissal was without

prejudice. Id. ¶ 15.

¶ 8 Here, we agree that the dismissal was premature. However, we disagree that the proper

disposition is to dismiss without prejudice. Instead, we agree with the Fourth District, which

recently noted that remanding for further proceedings would not be meaningless or result in

the case being permanently set on the trial court’s docket. Powell v. Lewellyn, 2012 IL App

(4th) 110168, ¶ 14.

¶ 9 Contrary to the determination in Nitz, if defendant wishes to have his case heard, he can

promptly serve the State. Id. Otherwise, the trial court has the power to dismiss the case for

want of prosecution, after a reasonable period of time. Id. Further, the action may be

dismissed under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) if defendant fails to

exercise reasonable diligence in serving the State. In any event, an immediate, sua sponte

dismissal, even without prejudice, is premature. Accordingly, the appropriate disposition is

to vacate and remand for further proceedings.

¶ 10 Citing to People v. Wallace, 405 Ill. App. 3d 984 (2010), the State argues that the petition

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was properly dismissed with prejudice, because defendant attempted to serve it and because

judicial efficiency renders modification of the order unnecessary. We disagree.

¶ 11 In Wallace, the defendant filed a section 2-1401 petition but did not properly serve it. The

State moved to dismiss, and the defendant attempted to cure the problem by responding by

certified mail. The trial court dismissed the petition and, on appeal, we held that the trial

court should have quashed the service instead of dismissing the petition. Id. at 986. We noted

that the law favors resolution on the merits and that dismissal for a technical service flaw

should be a disfavored option. Thus, if the court is to dismiss, there should be a clear reason

for doing so beyond the technical flaw. See id. at 988. Because no such clear reason was

present in the case, and because the defendant had made a prompt attempt to cure the

problem, the trial court abused its discretion when it dismissed the petition. Id.

¶ 12 The State argues that, as in Wallace, defendant attempted to serve the petition but did so

incorrectly. It then argues that the concerns in Wallace about adjudication on the merits do

not apply, because the record shows that the court here received and fully considered the

merits of the petition, making it unnecessary to remand for such a determination. But the

State’s argument misses the point that a sua sponte dismissal on the merits is premature

when the State has not been properly served. Should the State wish to make the disposition

of cases such as this one more efficient, the best course would be to waive an objection to

the defective service. The action could then proceed normally through an adjudication on the

merits.

¶ 13 III. CONCLUSION

¶ 14 The dismissal on the merits was premature. Accordingly, we vacate the judgment of the

circuit court of Kane County and remand for further proceedings.

¶ 15 Vacated and remanded.

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