ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Prado, 2012 IL App (2d) 110767
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARTIN PRADO, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0767
Filed November 2, 2012
Held The dismissal of defendant’s petition under section 2-1401of the Code of
(Note: This syllabus Civil Procedure was vacated and the cause was remanded for further
constitutes no part of proceedings, since the sua sponte dismissal on the merits was premature
the opinion of the court in view of defendant’s failure to properly serve the petition on the State
but has been prepared and the proper disposition was to remand the petition to allow defendant
by the Reporter of to properly serve the State or permit the trial court to dismiss the case for
Decisions for the want of prosecution after a reasonable time.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 06-CF-1070; the
Review Hon. Timothy Q. Sheldon, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal 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0774 (2010) (unpublished order under Supreme Court Rule 23).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
-2-
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
-3-
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.
-4-