People v. Wallace
405 Ill. App. 3d 984
| Ill. App. Ct. | 2010Background
- Wallace pleaded guilty to a drug offense on July 13, 2006 and was sentenced to eight years' imprisonment; he did not file a direct appeal.
- On April 10, 2008, he filed a section 2-1401 petition alleging ineffective assistance of counsel during the plea proceedings.
- The petition's Affidavit of Service did not show to whom he served or reference certified or registered mail.
- The State moved to dismiss for improper service; the court set a hearing and on May 5, 2008, a certified mail copy was filed with a confusing handwritten note about who to mail to.
- On July 11, 2008, the court dismissed the petition for failure to perfect service, occurring just before the section 2-1401(c) deadline.
- Wallace argued on appeal that the proper remedy for improper service is to quash service, not dismiss; the court agreed and vacated the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper remedy for improper service | Wallace argues to quash service, not dismiss. | State argues dismissal is appropriate for improper service | Dismissal was abuse of discretion; quash service and remand |
| Finality and appealability under Walker | Walker finality rules apply; order was final and appealable. | Not necessary to contest finality here. | Order was final and appealable |
Key Cases Cited
- People v. Walker, 395 Ill.App.3d 860 (2009) (finality of dismissal hinges on prejudice to filer; significant barrier to asserting claim)
- Sarkissian v. Chicago Board of Education, 201 Ill.2d 95 (2002) (right to attack service flaw; timing considerations for default judgments)
- Venzor v. Carmen's Pizza Corp., 235 Ill.App.3d 1053 (1992) (preference for vacating default judgments when timely; disdain for technical dismissals)