also specially concurring:
I agree with the majority that the judgment of the appellate court, rejecting defendant’s challenge to his extended-term sentence, should be affirmed. To the extent this opinion holds, however, that section 2 — 1401 is a proper vehicle to attack a void judgment even after the two-year limitation period has expired, I disagree.
As noted by the majority, section 2 — 1401 of the Code of Civil Procedure provides a method to attack final judgments or orders after 30 days of the entry of judgment. 735 ILCS 5/2 — 1401 (West 1998). The language contained in section 2 — 1401 is clear: a petition for relief must be filed not later than two years after the entry of the order or judgment. 735 ILCS 5/2 — 1401(c) (West 1998). Section 2 — 1401 by its express language relaxes this limitation period only if the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. 735 ILCS 5/2 — 1401(c) (West 1998). Contrary to the view expressed by the majority, section 2 — 1401 does not also relax this limitation period if the petitioner attacks the judgment on the basis that it is void.1 This exception is absent from the language of the statute. When statutory language is clear it must be given effect — it is not proper to depart from the plain language by reading into the statute exceptions not expressed by the legislature. People v. Wright, 194 Ill. 2d 1, 29 (2000). Moreover, this exception is unnecessary. Section 2 — 1401 does not provide an obstacle for parties who seek redress from void judgments beyond the two-year limitation. Rather, “[njothing contained in [section 2 — 1401] affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2—1401(1) (West 1998).
Citing to this court’s opinion in R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309-10 (1986), the majority states that, “there is no issue as to defendant’s right to seek redress by means of a section 2 — 1401 petition.” 196 Ill. 2d at 447. In R.W. Sawant, an order of default was entered against the defendant on the underlying and third-party complaints. Within four months of the order, the defendant entered a special and limited appearance and a motion to quash the service of summons of both complaints. This court considered whether the defendant used the “proper vehicle” to contest jurisdiction. R.W. Sawant, 111 Ill. 2d at 309. The plaintiff and third-party plaintiff characterized the defendant’s jurisdictional attack as a collateral attack on the circuit court’s judgment under section 2 — 1401. Plaintiffs argued that the defendant, however, had failed to satisfy the due diligence requirement contained in section 2 — 1401. We concluded that section 2 — 1401 did not govern the defendant’s jurisdictional attack:
“We note initially that ‘[a] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.’ (Emphasis added.) [Citations.] A defendant, therefore, can properly challenge a court’s jurisdiction after a default judgment or order is entered.
*** A defendant who is contesting personal jurisdiction is not ‘strictured by either the time limitations or the requirement of due diligence to which petitions relying on’ section 2 — 1401 must conform. Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917. (Home State Savings cited section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72); this section became section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401)).
As the appellate court correctly pointed out in this case, ‘section 2 — 1401, which provides relief from default judgments, *** does not affect a party’s right to seek relief from a void order or judgment by any other "method. See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401(f).’ [Citation.]
[The defendant] chose one method of attacking the personal jurisdiction of the Illinois courts. Although the method [the defendant] chose may not be the most used or the one most favored, it was nonetheless permissible and proper.” R.W. Sawant, 111 Ill. 2d at 309-10.
Thus, R.W. Sawant did not create an exception to the two-year limitation period.
As in R.W. Sawant, the defendant’s right to seek relief does not depend on whether he satisfies the requirements contained in section 2 — 1401. A party may attack a void judgment at any time in a motion separate and apart from a section 2 — 1401 petition. R.W. Sawant, 111 Ill. 2d at 310; City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112 (1976); Barnard v. Michael, 392 Ill. 130, 135 (1945); see State Bank v. Thill, 113 Ill. 2d 294, 308-09 (1986); Cavanaugh v. Lansing Municipal Airport, 288 Ill. App. 3d 239, 246 (1997); In re Marriage of Parks, 122 Ill. App. 3d 905, 909 (1984); First Federal Savings & Loan Ass’n v. Brown, 74 Ill. App. 3d 901, 905 (1979). Moreover, it is irrelevant that defendant brought his petition pursuant to section 2 — 1401. The character of a motion is determined by its content and not the title or label asserted by the petitioner. Savage v. Mui Pho, 312 Ill. App. 3d 553, 559 (2000); see also First Federal Savings & Loan Ass’n, 74 Ill. App. 3d at 905.
In the instant case, defendant brought his petition well beyond the two-year limitation period. He does not allege legal disability, duress, or fraudulent concealment in order to invoke the express exceptions contained in section 2 — 1401 (735 ILCS 5/2 — 1401(c) (West 1998)). Therefore, he may not proceed under section 2 — 1401. See 735 ILCS 5/2 — 1401(c) (West 1998). Nonetheless, because defendant challenges his extended-term sentence on the basis that the judgment is void, his challenge is proper and not restricted by the two-year limitation period in section 2 — 1401.
JUSTICES THOMAS and GARMAN join in this special concurrence.
The majority also states that the “limitations period may be waived by the opposing party.” 196 Ill. 2d at 447, citing Ross, 191 Ill. App. 3d 1046, 1053 (1989). In Ross, the appellate court held that section 2 — 1401 codifies a common law remedy and, therefore, “the statute is procedural and may be waived.” Ross, 191 Ill. App. 3d at 1053. This court has never directly addressed whether section 2 — 1401 codifies a common law remedy or creates a new cause of action rendering the limitations period jurisdictional and not subject to waiver. I do not express an opinion on the issue of whether the two-year limitation period in section 2 — 1401 is procedural or jurisdictional.