dissenting:
I respectfully dissent and would reverse and remand.
In ruling on a section 2 — 1401 petition in a criminal case, a trial court may not summarily dismiss the petition as “frivolous or *** patently without merit” as permitted under the Post-Conviction Hearing Act. 725 ILCS 5/122 — 2.1(a)(2) (West 2004); Vincent, 226 Ill. 2d at 10-11, 871 N.E.2d at 24-25. The trial court may, however, sua sponte — as it would in civil cases — dismiss the case for failure to state a cause of action. Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26. A civil case may not be dismissed simply because the trial court believes it has little merit. A motion to dismiss raises an issue of law as to the legal sufficiency of the allegations in the complaint. “[A] motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiff to recover.” Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).
The trial court in this case did not dismiss the petition because its allegations did not provide a legal basis for relief under section 2 — 1401. Instead, the court dismissed the petition as untimely because the two-year period had expired. As I stated in my original dissent in this case:
“When the trial court dismissed defendant’s section 2 — 1401 petition for being untimely, the court did not afford defendant the opportunity to respond. Under section 2 — 1401, a petition ‘must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.’ 735 ILCS 5/2 — 1401(c) (West 2004). Defendant could also have avoided the two-year limitations period if she could show that the judgment against her was void. See Anderson, 352 Ill. App. 3d 936, 817 N.E.2d at 1002. Had the trial court given defendant the opportunity, defendant may have presented an acceptable explanation for the delay. Defendant may then have demonstrated a meritorious claim. On the other hand, defendant may not have had any explanation for the lengthy delay and the court could have quickly disposed of defendant’s claim.” Laugharn, slip order at 5 (Cook, J., dissenting) (unpublished summary order under Supreme Court Rule 23(c)(2)).
It is not clear that no set of facts could ever be proved in this case that would allow defendant to show the petition was timely. The trial court should allow a litigant the opportunity to amend the petition when so doing could yield a meritorious claim. Vincent, 226 Ill. 2d at 13 n.3, 871 N.E.2d at 26 n.3. Even a postconviction petition may not be summarily dismissed, at the first stage, as untimely. The time requirement for filing a postconvict ion petition is considered an affirmative defense that may be raised, waived, or forfeited by the State. People v. Boclair, 202 Ill. 2d 89, 101, 789 N.E.2d 734, 742 (2002).