People v. Caliendo

State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-0121 Rel

Case Date: 05/20/2009

Preview:No. 2--07--0121

Filed: 5-20-09

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. CALIENDO, Defendant-Appellant.

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Appeal from the Circuit Court of Kane County.

No. 04--CF--629 Honorable Patricia Piper Golden, Judge, Presiding.

JUSTICE HUTCHINSON delivered the opinion of the court: Defendant, James D. Caliendo, appeals the dismissal of his petition filed under section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 2006)). The trial court summarily dismissed his pleading, citing section 122--2.1(a)(2) of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--2.1(a)(2) (West 2006)). Defendant now contends that the trial court committed reversible error when it recharacterized his section 2--1401 petition as a postconviction petition and failed to properly notify him that it intended to do so, warn him of the consequences of the recharacterization, and allow him to withdraw or amend the petition, as required by People v. Shellstrom, 216 Ill. 2d 45 (2005), and People v. Pearson, 216 Ill. 2d 58 (2005). For the following reasons, we vacate the trial court's summary dismissal and remand the case with instructions. In June 2004, a grand jury returned an indictment against defendant, charging him with the offenses of burglary (720 ILCS 5/19--1(a) (West 2004)) and criminal damage to property (720 ILCS

No. 2--07--0121 5/21--1(1)(a) (West 2004)). The charges alleged that defendant threw a brick though the window of the French Country Market, went inside, and took a number of items. Defendant pleaded guilty to the charge of burglary, entering a fully negotiated plea. In exchange, the State recommended a sentence of 8

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