dissenting:
I respectfully dissent. The trial court effectively granted defendant leave to file the petition when it went ahead and heard it. See Fischer v. Senior Living Properties, L.L.C., 329 Ill. App. 3d 551, 771 N.E.2d 505 (2002). Also, the second postconviction petition was filed in May 2003. Section 122 — 1 was not amended to add subsection (f) until January 2004. 725 ILCS 122 — 1(f) (West 2004).
An appellate court may affirm on the basis of an issue not raised in the trial court, but we should be careful in doing so. “[T]he appellate court should not consider different theories or new questions not raised in the trial court if they might have been refuted or overcome had they been presented below.” Geaslen v. Berkson, Gorov & Levin, Ltd,., 155 Ill. 2d 223, 230, 613 N.E.2d 702, 705 (1993). “[T]he appellate court should take care that litigants are not deprived of an opportunity to present argument.” Geaslen, 155 Ill. 2d at 230, 613 N.E.2d at 705. The State gains an advantage by raising these issues for the first time in the reviewing court. If the State had raised the issue in the trial court, the trial court may have granted leave to file the petition or allowed it to be amended.