JUSTICE KAPALA delivered the opinion of the court:

Defendant, Theodore Knox, appeals from the denial of his"motion to vacate unconstitutional and void judgments." On appeal,he argues that his motion was in substance a petition under thePost-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West2000)) and that the trial court erred in considering the State'sargument before deciding whether the "postconviction petition" wasfrivolous or patently without merit. We affirm.

Defendant's convictions stemmed from the shooting deaths ofSantos Escobedo and Domingo Garcia, Jr. A jury found defendantguilty of two counts of first-degree murder (Ill. Rev. Stat. 1987,ch. 38, par. 9--1(a)(3) (now 720 ILCS 5/9--1(a)(3) (West 2000)))and two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38,par. 33A--2 (now 720 ILCS 5/33A--2(a) (West 2000))). The trialcourt vacated the armed violence convictions and on the murderconvictions imposed a mandatory life sentence pursuant to section5--8--1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev.Stat. 1987, ch. 38, par. 1005--8--1(a)(1)(c) (now 730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2000))). Defendant appealed, and this courtaffirmed. People v. Knox, 241 Ill. App. 3d 205 (1993).

In 1993, defendant filed a pro se petition seeking reliefunder section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1992)) or alternatively under the Act. The petitionalleged that the State and its key occurrence witness misled thejury about the plea agreement that led to the witness's testimony. The trial court dismissed the petition as frivolous and patentlywithout merit, and this court affirmed. People v. Knox, No. 2--93--0763 (1995) (unpublished order under Supreme Court Rule 23).

On June 21, 2001, defendant filed a "motion to vacateunconstitutional and void judgments" alleging that his mandatorylife sentence violated the rule in Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant's motiondid not cite or refer to the Act. During the preliminary hearing,the trial court stated, "Defendant has filed a motion. I willcontinue it *** to give the State an opportunity to review it." During the hearing on the motion the following exchange occurred:

"THE COURT: I don't think this is a post-convictionpetition. I have not seen anything with respect to that. It's just a motion.

MR. NEWSOME [assistant State's Attorney]: Just a motion,Judge. I think it would be not timely.

THE COURT: What's the State's position?

MR. NEWSOME: Judge, we would say it is not a recognizedmotion of any type. It's past the two-year time limit, and asa post-conviction petition, he hasn't done the necessaryrequired conditions for filling [sic] *** under [725] ILCS5/122-1(b), which would be filing a petition with a copyverified by affidavit and serving that copy on the State'sAttorney's Office, and he must specify in the petition headingthat it's filed under the post-conviction petition section. He has not done that.

THE COURT: Even so, I don't think Apprendi applies. Thedefendant received a life sentence for killing two persons,and that fact was considered by the jury.

MR. NEWSOME: That would also be correct.

THE COURT: Even so, I am not saying it is the rightmotion. I will dismiss it based upon that."

The trial court denied the motion, and defendant timely appealed.

The Act provides a remedy for defendants whose convictions aretainted by a substantial denial of their constitutional rights. People v. Cheeks, 318 Ill App. 3d 919, 921 (2001). It prescribesa three-step process for adjudicating postconviction petitions. During the first step, the trial court must determine, within 90days after the petition is filed and docketed, whether the petitionis frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2)(West 2000). The trial court evaluates the petition withoutfurther input from the petitioner or participation by the State. People v. Scullark, 325 Ill. App. 3d 876, 879 (2001).

If the court finds that the petition is either frivolous orpatently without merit, the court must, in a written order, dismissthe petition. 725 ILCS 5/122--2.1(a)(2) (West 2000). To survivepast stage one, the petition need assert only the gist of aconstitutional claim. Scullark, 325 Ill. App. 3d at 879. Adismissal during the first stage is improper if the trial courtrelied on input from the State. See People v. Gaultney, 174 Ill.2d 410, 419-20 (1996).

On appeal, defendant argues that his motion was in substancea postconviction petition and therefore that the trial court erredin considering the State's argument before deciding whether the"petition" was frivolous or patently without merit. Courts haverecognized that when a pro se defendant collaterally attacks hisconviction and alleges a deprivation of constitutional rightscognizable under the Post-Conviction Hearing Act, the trial courtshould treat it as such. People v. Gandy, 227 Ill. App. 3d 112,139 (1992). The Act was amended in 1997, however, and nowprovides:

"A person seeking relief by filing a petition under thisSection must specify in the petition or its heading that it isfiled under this Section. A trial court that has received apetition complaining of a conviction or sentence that fails tospecify in the petition or its heading that it is filed underthis Section need not evaluate the petition to determinewhether it could otherwise have stated some grounds for reliefunder this Article." 725 ILCS 5/122--1(d) (West 2000).

Defendant's motion did not indicate in any way that it soughtrelief under the Act. Thus, under the plain language of section122-1(d), the trial court was not required to treat the motion asa postconviction petition.

Defendant responds that section 122--1(d) violates theseparation of powers provision of the Illinois Constitution (Ill.Const. 1970, art. II,