Trial court improperly dismissed 2-1401 petition by not giving defendant time to respond

In People v. Rucker, 2018 IL App (2d) 150855, the defendant filed a pro se petition for relief from judgment (known as a 2-1401 petition). The State filed a motion to dismiss. Fourteen days later, the court granted the State’s motion to dismiss without the defendant being present. The defendant filed a pro se motion to reconsider, which was denied also without him being present. Rucker appealed.

The Second District reversed and remanded the trial court’s order granting the State’s motion to dismiss on grounds that Rucker was denied due process when the trial court granted the State’s motion to dismiss without giving Rucker an opportunity to respond to the State’s motion. The Rucker court reasoned that “Defendant was deprived of the opportunity to respond to the State’s motion before the trial court initially ruled on it. Further, when defendant had the opportunity to respond via his motion to reconsider, he had the burden of persuasion, whereas, if he had been given the opportunity to respond before the court’s initial ruling, the burden would have been on the State to establish a basis for dismissal.” Id. at ¶ 29. The trial court’s order was then vacated and remanded.

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