{ "id": 351276, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PHILLIP HARVEY, Appellant", "name_abbreviation": "People v. Harvey", "decision_date": "2001-06-21", "docket_number": "No. 89522", "first_page": "444", "last_page": "460", "citations": [ { "type": "official", "cite": "196 Ill. 2d 444" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "140 Ill. App. 3d 1151", "category": "reporters:state", "reporter": "Ill. App. 3d", "year": 1986, "pin_cites": [ { "parenthetical": "unpublished order under Supreme Court Rule 23" } ], "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 1112", "category": "reporters:state", "reporter": "Ill. App. 3d", "year": 1989, "pin_cites": [ { "parenthetical": "unpublished order under Supreme Court Rule 23" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453266 ], "year": 2000, "pin_cites": [ { "page": "460-61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0437-01" ] }, { "cite": "179 Ill. 2d 205", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801351 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "210" }, { "page": "210-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0205-01" ] }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "year": 1986, "pin_cites": [ { "page": "309-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "302 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352894 ], "year": 1998, "pin_cites": [ { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0845-01" ] }, { "cite": "191 Ill. App. 3d 1046", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511528 ], "year": 1989, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/1046-01" ] }, { "cite": "297 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910244 ], "year": 1998, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0818-01" ] }, { "cite": "316 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096616 ], "year": 2000, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0245-01" ] }, { "cite": "99 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099942 ], "year": 1981, "pin_cites": [ { "page": "401-02" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0396-01" ] }, { "cite": "207 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2554018 ], "year": 1990, "pin_cites": [ { "page": "703-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0688-01" ] }, { "cite": "78 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606652 ], "year": 1979, "pin_cites": [ { "page": "814-18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0809-01" ] }, { "cite": "183 Ill. 2d 339", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209979 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/183/0339-01" ] }, { "cite": "497 U.S. 37", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212725 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "42" }, { "page": "38" }, { "page": "2719" } ], "opinion_index": 0, "case_paths": [ "/us/497/0037-01" ] }, { "cite": "1 L. Ed. 648", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 11738091 ], "year": 1798, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/us/3/0386-01" ] }, { "cite": "165 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483556 ], "year": 1995, "pin_cites": [ { "page": "242-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0235-01" ] }, { "cite": "99 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163576 ], "year": 1983, "pin_cites": [ { "page": "33", "parenthetical": "final judgments can only be attacked on direct appeal, or in one of the traditional collateral proceedings now defined by statute" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/99/0029-01" ] }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "309-10" }, { "page": "309" }, { "page": "309-10" }, { "page": "310" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "191 Ill. App. 3d 1046", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511528 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "1053" }, { "page": "1053" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/191/1046-01" ] }, { "cite": "194 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096297 ], "year": 2000, "pin_cites": [ { "page": "29" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/194/0001-01" ] }, { "cite": "73 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261218 ], "pin_cites": [ { "page": "917" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/73/0915-01" ] }, { "cite": "65 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436041 ], "year": 1976, "pin_cites": [ { "page": "112" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/65/0108-01" ] }, { "cite": "392 Ill. 130", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2516067 ], "year": 1945, "pin_cites": [ { "page": "135" } ], "opinion_index": 2, "case_paths": [ "/ill/392/0130-01" ] }, { "cite": "113 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173712 ], "year": 1986, "pin_cites": [ { "page": "308-09" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/113/0294-01" ] }, { "cite": "288 Ill. App. 3d 239", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596982 ], "year": 1997, "pin_cites": [ { "page": "246" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/288/0239-01" ] }, { "cite": "122 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521950 ], "year": 1984, "pin_cites": [ { "page": "909" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/122/0905-01" ] }, { "cite": "74 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267436 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "905" }, { "page": "905" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/74/0901-01" ] }, { "cite": "312 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411622 ], "year": 2000, "pin_cites": [ { "page": "559" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/312/0553-01" ] }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "309" }, { "page": "306" }, { "page": "308-09" }, { "page": "309" }, { "page": "309-10" }, { "page": "309-10" } ], "opinion_index": 3, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "73 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261218 ], "weight": 2, "pin_cites": [ { "page": "917" }, { "page": "917", "parenthetical": "noting that section 72(6) of the former Civil Practice Act (now section 2-1401(f) of the Code) explicitly provides that relief from a void judgment is not limited by section 72" } ], "opinion_index": 3, "case_paths": [ "/ill-app-3d/73/0915-01" ] }, { "cite": "122 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521950 ], "year": 1984, "pin_cites": [ { "page": "909" } ], "opinion_index": 3, "case_paths": [ "/ill-app-3d/122/0905-01" ] }, { "cite": "116 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543208 ], "year": 1987, "pin_cites": [ { "page": "5" } ], "opinion_index": 3, "case_paths": [ "/ill-2d/116/0001-01" ] }, { "cite": "103 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5481054 ], "year": 1982, "pin_cites": [ { "page": "332-33", "parenthetical": "construing section 72 of the former Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), the predecessor to section 2-1401" } ], "opinion_index": 3, "case_paths": [ "/ill-app-3d/103/0329-01" ] }, { "cite": "246 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5389622 ], "year": 1993, "pin_cites": [ { "page": "841" } ], "opinion_index": 3, "case_paths": [ "/ill-app-3d/246/0835-01" ] } ], "analysis": { "cardinality": 964, "char_count": 27683, "ocr_confidence": 0.781, "pagerank": { "raw": 2.7120587390635693e-07, "percentile": 0.8294066565270793 }, "sha256": "1754df31d3a44a776e183a34f83684cfb029764c776577151e497f67ba526496", "simhash": "1:bbbc639a6720c894", "word_count": 4587 }, "last_updated": "2023-07-14T19:16:53.942400+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PHILLIP HARVEY, Appellant." ], "opinions": [ { "text": "CHIEF JUSTICE HARRISON\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Champaign County in 1985, defendant was found guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 \u2014 2(a)) and sentenced to an extended term of 45 years\u2019 imprisonment based on a previous conviction for attempted murder. The circuit court\u2019s judgment was affirmed on direct review. People v. Harvey, 140 Ill. App. 3d 1151 (1986) (unpublished order under Supreme Court Rule 23). A post-conviction petition challenging the judgment was subsequently rejected. People v. Harvey, 190 Ill. App. 3d 1112 (1989) (unpublished order under Supreme Court Rule 23).\nDefendant has now filed a petition under section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2\u2014 1401 (West 1998)), challenging his extended-term sentence on the grounds that it is void. The circuit court rejected defendant\u2019s challenge, and the appellate court affirmed. No. 4 \u2014 99\u20140073 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we now affirm the judgment of the appellate court.\nIn undertaking our review, we begin by noting that there is no issue as to defendant\u2019s right to seek redress by means of a section 2 \u2014 1401 petition. Section 2 \u2014 1401 provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from their entry. Although a section 2 \u2014 1401 petition is usually characterized as a civil remedy, its remedial powers extend to criminal cases. People v. Haynes, 192 Ill. 2d 437, 460-61 (2000).\nAs a general rule, a petition for relief from judgment under section 2 \u2014 1401 must be filed within two years after entry of the judgment being challenged. 735 ILCS 5/2 \u2014 1401(c) (West 1998). A section 2 \u2014 1401 petition filed beyond the two-year period will not normally be considered. People v. Caballero, 179 Ill. 2d 205, 210 (1997). An exception to the two-year period has been recognized where a clear showing has been made that the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. Caballero, 179 Ill. 2d at 210-11. A person may also seek relief beyond section 2 \u2014 1401\u2019s two-year limitations period where the judgment being challenged is void. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309-10 (1986); see In re Marriage of Steinberg, 302 Ill. App. 3d 845, 856 (1998). In addition, section 2 \u2014 1401\u2019s limitations period may be waived by the opposing party. People v. Ross, 191 Ill. App. 3d 1046, 1053 (1989).\nBecause the defendant in this case is challenging his extended-term sentence on the grounds that it is void, the State has conceded that section 2 \u2014 1401\u2019s two-year limitations period is inapplicable. Here, as in the appellate court, it has not attempted to invoke that deadline as a barrier to defendant\u2019s petition. We shall therefore proceed to address defendant\u2019s claims on the merits.\nIn imposing sentences, trial courts must adhere to statutory requirements. If a trial court imposes a sentence greater than that permitted by statute, the excess portion of the sentence is void. See People v. Rankin, 297 Ill. App. 3d 818, 822 (1998). Accordingly, the extended-term portion of a criminal sentence is subject to challenge and cannot stand where the requirements of the extended-term sentencing statute have not been met. See People v. Pittman, 316 Ill. App. 3d 245, 253 (2000). Defendant contends that this is such a case.\nThe extended-term sentence challenged here was imposed by the circuit court pursuant to section 5 \u2014 8\u20142 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 8\u20142) based on its findings that the factors in aggravation set forth in section 5 \u2014 5\u20143.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005 \u2014 5\u20143.2(b)(1)) were present. The aggravating factors set forth in section 5 \u2014 5\u20143.2(b)(1) exist when a defendant has been \u201cconvicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.\u201d Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005 \u2014 5\u2014 3.2(b)(1).\nThe felony for which defendant was convicted and for which he was sentenced to the extended term was armed robbery. At the time he received the extended-term sentence, defendant had previously been convicted of attempted murder. That conviction, dating to 1974, was also a felony. There is no dispute that both convictions took place in Illinois and occurred within 10 years of each other, excluding time defendant spent in custody. There is likewise no dispute that the charges underlying the convictions were separately brought and tried and arose out of different series of acts. Defendant\u2019s challenge to his extended-term sentence turns solely on the question of whether attempted murder can be regarded as \u201cthe same or greater class felony\u201d as armed robbery.\nAt the time defendant committed attempted murder, the offense was classified as a Class 1 felony for sentencing purposes. See Ill. Rev. Stat. 1973, ch. 38, par. 8 \u2014 4(c)(1). So was armed robbery. Ill. Rev. Stat. 1973, ch. 38, par. 18 \u2014 2(b). By the time defendant had committed the armed robbery for which he received the extended term, the Criminal Code of 1961 had been amended. For purposes of sentencing, attempted murder was no longer considered a Class 1 felony. It was now a Class X felony. Ill. Rev. Stat. 1983, ch. 38, par. 8 \u2014 4(c)(1); People v. Zuniga, 99 Ill. App. 3d 396, 401-02 (1981). The same was true, however, of armed robbery. It was also reclassified as a Class X felony. Ill. Rev. Stat. 1983, ch. 38, par. 18\u2014 2(b). The relative severity of the offenses thus remained unchanged. For purposes of sentencing, both offenses were still of the same class. That being so, the requirements of the extended-term sentencing provisions were satisfied.\nDefendant challenges this conclusion by arguing that the classification of his attempted murder conviction should be determined in accordance with the law as it existed at the time he committed that offense. In his view, the reclassification should be disregarded. Similar claims were advanced by other defendants in the wake of the legislature\u2019s reclassification of offenses in 1978. They were properly rejected by the appellate court then (see People v. Tipton, 207 Ill. App. 3d 688, 703-04 (1990); People v. Butler, 78 Ill. App. 3d 809, 814-18 (1979)), and they were properly rejected by the appellate court here. The change in the law did not affect the elements of the crime, and the relative severity of attempted murder was correctly assessed by the circuit court in accordance with the law as it existed after that offense was reclassified.\nHow defendant\u2019s attempted murder conviction should be classified for purposes of the extended-term sentencing rules is not affected by this court\u2019s recent decision in People v. Olivo, 183 Ill. 2d 339 (1998). In contrast to the present case, Olivo had nothing to do with the effect of statutory reclassification on offenses which were and remained of the same relative severity. The prior convictions in Olivo were less severe than the conviction for which the extended term was imposed. They had merely drawn enhanced sentences. Because enhancement of a sentence does not operate to elevate the class of the crime for which the sentence is imposed, the defendant in Olivo could not be said to have been previously convicted \u201cof the same or greater class felony\u201d within the meaning of section 5 \u2014 5\u20143.2(b)(1). That case is therefore inapposite.\nAs an alternative basis for attacking the lower courts\u2019 judgments, defendant argues that using his 1974 attempted murder conviction as an aggravating factor to support imposition of an extended term for his subsequent armed robbery conviction contravenes the federal and state constitutional prohibitions against ex post facto laws (U.S. Const., art. I, \u00a7 10; Ill. Const. 1970, art. I, \u00a7 16). The prohibition against ex post facto laws bars a state from enacting legislation that \u201c \u2018changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.\u2019 \u201d (Emphasis omitted.) Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38, 110 S. Ct. 2715, 2719 (1990), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). Defendant contends that the statutory reclassification of his attempted murder conviction from a Class 1 to a Class X felony offends that prohibition because, in light of the extended-term sentencing provisions, it had the effect of subjecting him to a more serious punishment for attempted murder than would have been possible when he committed the crime.\nThere are two flaws in this argument. First, it fails to appreciate that the particular classification a felony carries has no importance, in and of itself, for purposes of applying the extended-term sentencing provisions. As our discussion has suggested, the critical inquiry in determining whether those sentencing provisions are applicable is the relative severity of the offenses. The offenses at issue here retained their same relative severity. Before reclassification they were both regarded as Class 1 felonies. After reclassification they were both regarded as Class X felonies. There was no change in the elements of the offenses, and there was never a time when attempted murder was considered to be less serious than armed robbery. Reclassification thus had no effect on defendant\u2019s eligibility for an extended term.\nThe second, and equally fundamental, flaw in defendant\u2019s argument is that it assumes that the enhanced punishment defendant received is attributable to his attempted murder conviction. It is not. Defendant\u2019s subsequent conviction for armed robbery is what drew the enhanced sentence. His punishment for the attempted murder conviction remained the same. Defendant\u2019s prior conviction for attempted murder merely served as a factor in aggravation at the sentencing hearing for defendant\u2019s subsequent armed robbery conviction. Under such circumstances, our court has specifically held that no ex post facto concerns are present. People v. Dunigan, 165 Ill. 2d 235, 242-43 (1995).\nFor the foregoing reasons, the judgment of the appellate court is affirmed.\nAffirmed.", "type": "majority", "author": "CHIEF JUSTICE HARRISON" }, { "text": "JUSTICE McMORROW\nspecially concurring:\nI write separately to respond briefly to the concerns raised in the concurring opinions of Justice Fitzgerald and Justice Garman. Both concurring opinions conclude that a motion attacking a void judgment is not properly brought under section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1401 (West 1998)).\nParagraph (f) of section 2 \u2014 1401 states: \u201cNothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.\u201d 735 ILCS 5/2\u2014 1401(f) (West 1998). The concurring opinions read paragraph (f) as excluding motions to vacate void judgments from the purview of section 2 \u2014 1401. Both opinions stress that void judgments may be attacked at any time and in any court but then conclude that such a motion may be brought as some type of \u201cfreestanding\u201d action. Neither opinion indicates under what statutory provision, rule of court, or common law procedure such a motion may be brought.\nIn my view, paragraph (f) of section 2 \u2014 1401 does nothing more than state that a motion attacking a void judgment need not meet the requirements applied to other post-judgment motions brought under section 2 \u2014 1401. In other words, a post-judgment motion seeking relief on the basis that the judgment is void is not bound by the two-year limitation but, rather, may be brought at any time and does not require allegations of a meritorious defense or a showing of due diligence. Contrary to the views of the concurring justices, I do not interpret paragraph (f) as affirmatively excluding motions to vacate void judgments from being brought under section 2 \u2014 1401.\nMoreover, I note that section 2 \u2014 1401(a) expressly abolishes the old common law writs and equitable remedies that would have provided the procedural vehicle for attacking a void judgment at common law. As section 2 \u2014 1401(a) states:\n\u201cWrits of error coram nobis and coram vobis, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.\u201d (Emphasis added.) 735 ILCS 5/2\u20141401 (West 1998).\nSee also Ill. Ann. Stat., ch. 110, par. 2 \u2014 1401, Joint Committee Comments [1955] and Historical & Practice Notes, at 602-10 (Smith-Hurd 1983).\nI read section 2 \u2014 1401, similar to Rule 60 of the Federal Rules of Civil Procedure (Fed. R. Civ. E 60), as replacing traditional collateral proceedings as the proper vehicle for attacking void judgments. See Malone v. Cosentino, 99 Ill. 2d 29, 33 (1983) (final judgments can only be attacked on direct appeal, or in one of the traditional collateral proceedings now defined by statute).\nFurther, although the concurring justices agree on the merits of the case at bar, the justices do not identify the means by which this court exercises appellate jurisdiction. In this case, defendant challenged the extended-term portion of his criminal sentence, claiming the requirements of the extended-term sentencing statute had not been met. The trial court\u2019s ruling, upholding defendant\u2019s sentence against the challenge for voidness, might be viewed as a final and appealable order. In other cases, however, depending upon the underlying basis for the claim of voidness, the judgment entered may, or may not, be a final and appealable order. In this second class of cases, if the motion to vacate a void judgment is not viewed or utilized as a section 2 \u2014 1401 motion, there is no vehicle for finding appellate jurisdiction. While this court might exercise its supervisory authority to gain jurisdiction, the appellate court cannot. See Ill. Const. 1970, art. VI, \u00a7 16.\nIn light of these concerns, I believe the better course of action is simply to recognize that a motion for relief from a void judgment may be brought under section 2 \u2014 1401 of the Code of Civil Procedure. This clarifies the basis of jurisdiction and provides the procedural mechanism for exercising the principle of law with which every member of this court agrees, i.e., that a motion attacking a void judgment may be brought at any time.\nJUSTICE FREEMAN joins in this special concurrence.", "type": "concurrence", "author": "JUSTICE McMORROW" }, { "text": "JUSTICE FITZGERALD,\nalso specially concurring:\nI agree with the majority that the judgment of the appellate court, rejecting defendant\u2019s challenge to his extended-term sentence, should be affirmed. To the extent this opinion holds, however, that section 2 \u2014 1401 is a proper vehicle to attack a void judgment even after the two-year limitation period has expired, I disagree.\nAs noted by the majority, section 2 \u2014 1401 of the Code of Civil Procedure provides a method to attack final judgments or orders after 30 days of the entry of judgment. 735 ILCS 5/2 \u2014 1401 (West 1998). The language contained in section 2 \u2014 1401 is clear: a petition for relief must be filed not later than two years after the entry of the order or judgment. 735 ILCS 5/2 \u2014 1401(c) (West 1998). Section 2 \u2014 1401 by its express language relaxes this limitation period only if the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. 735 ILCS 5/2 \u2014 1401(c) (West 1998). Contrary to the view expressed by the majority, section 2 \u2014 1401 does not also relax this limitation period if the petitioner attacks the judgment on the basis that it is void. This exception is absent from the language of the statute. When statutory language is clear it must be given effect \u2014 it is not proper to depart from the plain language by reading into the statute exceptions not expressed by the legislature. People v. Wright, 194 Ill. 2d 1, 29 (2000). Moreover, this exception is unnecessary. Section 2 \u2014 1401 does not provide an obstacle for parties who seek redress from void judgments beyond the two-year limitation. Rather, \u201c[njothing contained in [section 2 \u2014 1401] affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.\u201d 735 ILCS 5/2\u20141401(1) (West 1998).\nCiting to this court\u2019s opinion in R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309-10 (1986), the majority states that, \u201cthere is no issue as to defendant\u2019s right to seek redress by means of a section 2 \u2014 1401 petition.\u201d 196 Ill. 2d at 447. In R.W. Sawant, an order of default was entered against the defendant on the underlying and third-party complaints. Within four months of the order, the defendant entered a special and limited appearance and a motion to quash the service of summons of both complaints. This court considered whether the defendant used the \u201cproper vehicle\u201d to contest jurisdiction. R.W. Sawant, 111 Ill. 2d at 309. The plaintiff and third-party plaintiff characterized the defendant\u2019s jurisdictional attack as a collateral attack on the circuit court\u2019s judgment under section 2 \u2014 1401. Plaintiffs argued that the defendant, however, had failed to satisfy the due diligence requirement contained in section 2 \u2014 1401. We concluded that section 2 \u2014 1401 did not govern the defendant\u2019s jurisdictional attack:\n\u201cWe note initially that \u2018[a] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.\u2019 (Emphasis added.) [Citations.] A defendant, therefore, can properly challenge a court\u2019s jurisdiction after a default judgment or order is entered.\n*** A defendant who is contesting personal jurisdiction is not \u2018strictured by either the time limitations or the requirement of due diligence to which petitions relying on\u2019 section 2 \u2014 1401 must conform. Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917. (Home State Savings cited section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72); this section became section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401)).\nAs the appellate court correctly pointed out in this case, \u2018section 2 \u2014 1401, which provides relief from default judgments, *** does not affect a party\u2019s right to seek relief from a void order or judgment by any other \"method. See Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401(f).\u2019 [Citation.]\n[The defendant] chose one method of attacking the personal jurisdiction of the Illinois courts. Although the method [the defendant] chose may not be the most used or the one most favored, it was nonetheless permissible and proper.\u201d R.W. Sawant, 111 Ill. 2d at 309-10.\nThus, R.W. Sawant did not create an exception to the two-year limitation period.\nAs in R.W. Sawant, the defendant\u2019s right to seek relief does not depend on whether he satisfies the requirements contained in section 2 \u2014 1401. A party may attack a void judgment at any time in a motion separate and apart from a section 2 \u2014 1401 petition. R.W. Sawant, 111 Ill. 2d at 310; City of Chicago v. Fair Employment Practices Comm\u2019n, 65 Ill. 2d 108, 112 (1976); Barnard v. Michael, 392 Ill. 130, 135 (1945); see State Bank v. Thill, 113 Ill. 2d 294, 308-09 (1986); Cavanaugh v. Lansing Municipal Airport, 288 Ill. App. 3d 239, 246 (1997); In re Marriage of Parks, 122 Ill. App. 3d 905, 909 (1984); First Federal Savings & Loan Ass\u2019n v. Brown, 74 Ill. App. 3d 901, 905 (1979). Moreover, it is irrelevant that defendant brought his petition pursuant to section 2 \u2014 1401. The character of a motion is determined by its content and not the title or label asserted by the petitioner. Savage v. Mui Pho, 312 Ill. App. 3d 553, 559 (2000); see also First Federal Savings & Loan Ass\u2019n, 74 Ill. App. 3d at 905.\nIn the instant case, defendant brought his petition well beyond the two-year limitation period. He does not allege legal disability, duress, or fraudulent concealment in order to invoke the express exceptions contained in section 2 \u2014 1401 (735 ILCS 5/2 \u2014 1401(c) (West 1998)). Therefore, he may not proceed under section 2 \u2014 1401. See 735 ILCS 5/2 \u2014 1401(c) (West 1998). Nonetheless, because defendant challenges his extended-term sentence on the basis that the judgment is void, his challenge is proper and not restricted by the two-year limitation period in section 2 \u2014 1401.\nJUSTICES THOMAS and GARMAN join in this special concurrence.\nThe majority also states that the \u201climitations period may be waived by the opposing party.\u201d 196 Ill. 2d at 447, citing Ross, 191 Ill. App. 3d 1046, 1053 (1989). In Ross, the appellate court held that section 2 \u2014 1401 codifies a common law remedy and, therefore, \u201cthe statute is procedural and may be waived.\u201d Ross, 191 Ill. App. 3d at 1053. This court has never directly addressed whether section 2 \u2014 1401 codifies a common law remedy or creates a new cause of action rendering the limitations period jurisdictional and not subject to waiver. I do not express an opinion on the issue of whether the two-year limitation period in section 2 \u2014 1401 is procedural or jurisdictional.", "type": "concurrence", "author": "JUSTICE FITZGERALD," }, { "text": "JUSTICE GARMAN,\nalso specially concurring:\nI agree with the affirmance of the appellate court\u2019s judgment in this case. I write separately because I believe that defendant\u2019s petition was not properly brought under section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 1998)).\nSection 2 \u2014 1401 provides relief by petition from final orders and judgments after 30 days have elapsed from the entry thereof. 735 ILCS 5/2 \u2014 1401(a) (West 1998). The petition must be filed not later than two years after entry of the order or judgment. 735 ILCS 5/2 \u2014 1401(c) (West 1998). Section 2 \u2014 1401(f) of the Code makes clear that \u201c[njothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.\u201d 735 ILCS 5/2 \u2014 1401(f) (West 1998). A void judgment is one that was entered without jurisdiction of the parties or the subject matter and such a judgment may be attacked at any time, either directly or collaterally. People v. Wade, 116 Ill. 2d 1, 5 (1987). Neither the two-year time limitation nor the due diligence requirement of section 2 \u2014 1401 apply to a petition challenging a judgment as void. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986).\nIn Sawant, the circuit court entered a default judgment against defendant Allied. Allied filed a special and limited appearance and a motion to quash service of summons, alleging lack of personal jurisdiction. Sawant, 111 Ill. 2d at 306. The circuit court struck the special and limited appearance and denied the motion to quash, holding that Allied used improper procedure, had not diligently presented its defense, and that Allied was subject to Illinois jurisdiction. Sawant, 111 Ill. 2d at 308-09. The appellate court disagreed with each of these findings and reversed. Sawant, 111 Ill. 2d at 309. On further appeal, plaintiffs argued that Allied\u2019s filing of its special and limited appearance constituted a collateral attack on the judgment under section 2 \u2014 1401 of the Code and that Allied had not established the requisite due diligence. This court rejected that argument, noting that a void judgment may be attacked at any time and that due diligence need not be shown. Section 2 \u2014 1401 of the Code did not preempt other means of attacking a void judgment or order. We noted that,' although Allied\u2019s choice of a special and limited appearance as a method to chailenge the jurisdiction of the circuit court may be unusual, it was nonetheless proper. Sawant, 111 Ill. 2d at 309-10.\nThe majority in the instant case cites Sawant as authority for the proposition that a party may seek relief under section 2 \u2014 1401 beyond the two-year time limitation where the judgment is alleged to be void. 196 Ill. 2d at 447. However, Sawant does not support this assertion. In addressing the plaintiffs\u2019 argument there that section 2 \u2014 1401 did not provide relief to Allied in challenging the circuit court\u2019s jurisdiction, this court observed that:\n\u201cA defendant who is contesting personal jurisdiction is not \u2018strictured by either the time limitations [citation] or the requirement of due diligence to which petitions relying on\u2019 section 2 \u2014 1401 must conform.\u201d Sawant, 111 Ill. 2d at 309-10, quoting Home State Savings Ass\u2019n v. Powell, 73 Ill. App. 3d 915, 917 (1979).\nThe method used by Allied in- that case to attack the judgment as void was a special and limited appearance. The quoted statement merely noted that this method was not subject to the restrictions of section 2 \u2014 1401.\nA motion filed more than two years after entry of the judgment challenged does not meet the time limitation for motions under section 2 \u2014 1401. The statute contains no exception to that time limitation for a motion attacking a judgment as void. Instead, it expressly permits a party to attack a judgment as void outside the scope of the statute. 735 ILCS 5/2 \u2014 1401(f) (West 1998). Prior appellate decisions establish that a party may challenge a void judgment at any time by motion directed to the court. See, e.g., In re Marriage of Parks, 122 Ill. App. 3d 905, 909 (1984); Augsburg v. Frank\u2019s Car Wash, Inc., 103 Ill. App. 3d 329, 332-33 (1982) (construing section 72 of the former Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), the predecessor to section 2\u20141401); Home State Savings Ass\u2019n v. Powell, 73 Ill. App. 3d 915, 917 (1979) (noting that section 72(6) of the former Civil Practice Act (now section 2\u20141401(f) of the Code) explicitly provides that relief from a void judgment is not limited by section 72).\nThus, where a party files a motion challenging a judgment as void more than two years after the judgment was entered, the motion is not properly brought under section 2 \u2014 1401. The party may simply challenge the judgment by motion directed to the circuit court.\nHere, although defendant mislabeled his petition as one under section 2 \u2014 1401 of the Code, courts should be liberal in recognizing such a petition as a collateral attack on a void judgment. See People v. Reymar Clinic Pharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Accordingly, defendant\u2019s petition may be considered outside the scope of section 2\u20141401 as a collateral attack upon a void judgment.\nJUSTICES FITZGERALD and THOMAS join in this special concurrence.", "type": "concurrence", "author": "JUSTICE GARMAN," } ], "attorneys": [ "Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant, and Phillip Harvey, of Canton, appellant pro se.", "James E. Ryan, Attorney General, of Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers, Kristen L. Hopkins and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 89522.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PHILLIP HARVEY, Appellant.\nOpinion filed June 21, 2001.\nMcMORROW J., joined by FREEMAN, J., specially concurring.\nFITZGERALD and GARMAN, JJ., joined by THOMAS, J., also specially concurring.\nDaniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant, and Phillip Harvey, of Canton, appellant pro se.\nJames E. Ryan, Attorney General, of Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers, Kristen L. Hopkins and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0444-01", "first_page_order": 454, "last_page_order": 470 }