Defendant was convicted, after jury trial, of aggravated battery with a firearm. Defendant filed pro se petition for relief under section 2-1401 of Code of Civil Procedure, and in that petition asked court to consider his petition as a postconviction petition under Post-Conviction Hearing Act. Defendant's petition met requirements of section 122-1(d) of the Act, and trial court erred in not considering the pro se section 2-1401 petition as a postconviction petition. Court used its determination that Defendant's arguments would not succeed as postconviction claims to buttress its refusal to consider the petition as a postconviction petition. Court's view that Defendant's arguments were waived was incorrect, as Defendant avoided waiver by arguing that appellate counsel was ineffective for failing to raise trial counsel's errors. Because Defendant named and cited the Act in his petition, the court was required to consider the petition as a postconviction petition. (ZENOFF and JORGENSEN, concurring.)
Illinois Appellate Court
Criminal Court
Postconviction Petitions