Defendant, who was serving 20-year prison sentence (with 25-year firearm enhancement), mailed a "Motion to Vacate Judgment" arguing that enhancement was void because court only found him guilty of murder. Appellate court erred in remanding, finding trial court's dismissal was premature as State had not been served. Record does not affirmatively demonstrate there was deficient service. The absence of a certified mail receipt in record does not affirmatively establish that service by certified mail was not accomplished. Any section 2-1401 petitioner who seeks to use, on appeal, his own error by way of allegedly defective service, in effort to gain reversal of a sua sponte dismissal of petition on the merits, must affirmatively demonstrate error via proceedings of record. (GARMAN, FREEMAN, THOMAS, KILBRIDE, BURKE, and THEIS, concurring.)
Illinois Supreme Court
Criminal Court
Relief from Judgment