People v. Malloy

              No. 3--05--0512
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Filed July 10, 2007.
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiff-Appellee, ))
No. 94-CF-4156
v. )
)
SEAN MALLOY, ) Honorable
) Gerald Kinney,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE CARTER delivered the opinion of the court:
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Defendant, Sean Malloy, pled guilty to first degree murder and was sentenced to 60 years’
imprisonment. More than 9 years later, defendant filed a petition for collateral relief. The trial court,
characterizing the petition as both a petition for relief from judgment (735 ILCS 5/2-1401 (West
2004)) and a postconviction petition (725 ILCS 5/122-1 (West 2004)), dismissed the petition on its
own motion. Defendant appeals that dismissal and argues: (1) that the trial court may not dismiss a
petition for relief from judgment, on its own motion, without first providing defendant with notice
and an opportunity to be heard; and in the alternative, (2) that even if the trial court may make such
a dismissal, it may not do so on the basis of timeliness. We agree with defendant’s second contention,
and find that the dismissal was erroneous. We also conclude, however, that the error was harmless,
and therefore, affirm.