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Opinion filed 9/10/08;  NO. 5-07-0199  
Modified Opinion on Denial of Rehearing filed 10/27/08.  IN THE  
APPELLATE COURT OF ILLINOIS  
FIFTH DISTRICT  

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the ) Circuit Court of     Plaintiff-Appellee, ) Effingham County. )
v. ) No. 03-CF-264 ) TOBBY J. SMITH, ) Honorable
) Sherri L. E. Tungate,     Defendant-Appellant. ) Judge, presiding.
Modified Upon Denial of Rehearing PRESIDING JUSTICE STEWART delivered the opinion of the court: On December 11, 2003, the defendant, Tobby J. Smith, was charged with two counts
of first-degree murder for the death of Ronald Hood.  On February 22, 2005, pursuant to a fully negotiated plea, the defendant pled guilty to the charge of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2004)) in return for the State dismissing all the other pending matters against him, including a second charge of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) and the charges, in two other cases, of domestic battery, aggravated battery, and aggravated battery with a firearm.  At the plea hearing, the State set out the terms of the plea agreement: the defendant would plead guilty to the charge of first-degree murder for an agreed sentence of 22 years' imprisonment in the Department of Corrections with credit for time served, pursuant to truth in sentencing he would serve 100% of his sentence, he would pay the costs of the proceedings in the murder case, he would submit to DNA testing, and his bond would be distributed for fees, fines, and costs.  The State explained that in exchange for the guilty plea, all the other charges against the defendant would be dismissed. The
Neither the State nor defense counsel mentioned mandatory supervised release.  The
defendant received the following admonishment from the court: "THE COURT: State says in Count II of the Indictment filed December 18th of 2003 that on December 6 of 2003 in Effingham County you committed the offense of first[-]degree murder in that you, without lawful justification, shot Ronald Hood with a handgun knowing such act created a strong probability of death or great bodily harm to Ronald Hood thereby causing the death of Ronald Hood in violation of [section 9-1(a)(2) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(2) (West 2004))]. Do you understand what it is the State says you did? DEFEND ANT: Yes. THE COURT: For that sentence, for that offense, you could be sentenced to twenty to sixty years in the Department of Corrections.  You could be fined up to $25,000.  You could be subject to mandatory supervised release of three years. You're not eligible for probation.  Do you understand what the possible penalty for the charge is? DEFEND AN T: Yes."
When the court imposed the sentence, it stated as follows: "THE COURT: Mr. Smith, I am then going to find that you understand the charge and possible penalties, that there is a factual basis, that the plea is voluntary, you understand your rights to trial and the other rights I explained, that you give up those rights voluntarily, and I'm going to accept your guilty plea to Count II of the Indictment, December 18, 2003, and per your agreement with the State I'm going to sentence you on that Count II to 22 years in the Department of Corrections."
The court dismissed the other charges, entered a judgment on his plea to first-degree murder,
served, assessed court costs, required him to submit to DNA testing, and set out the distribution of his bond for fees, costs, and fines.  When the court pronounced the sentence, it did not state that the defendant would be required to serve a term of mandatory supervised release.  The written sentencing judgment made no reference to a term of mandatory supervised release.
The defendant filed no posttrial motions or direct appeal.  On February 27, 2007, the defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), alleging that his constitutional right to due process and fundamental fairness was violated because he had not been informed that a 3-year mandatory-supervised-release term would apply to the 22-year prison sentence to which he pled guilty.  The defendant did not challenge the validity of his plea, nor did he seek the withdrawal of his guilty plea.  The defendant conceded that the statutory minimum for first-degree murder is 20 years' incarceration and that subtracting 3 years from his sentence would take it below the statutory minimum; therefore, he requested that his sentence be reduced to 20 years' imprisonment followed by a period of 3 years' mandatory supervised release.  On March 6, 2007, the trial court, sua sponte, ordered the defendant's petition dismissed on the grounds that it was untimely filed and that it failed to plead facts upon which relief could be granted.  The defendant filed a timely notice of appeal alleging that, pursuant to People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005), his fully negotiated 22-year prison sentence must be modified to 20 years' imprisonment plus 3 years' mandatory supervised release, so that his sentence will approximate the sentence to which he pled guilty. We find that the circuit court erred in dismissing the petition based upon timeliness, in failing to recharacterize the petition as a postconviction petition, and in finding that the petition was without merit.  We reverse and remand with directions.                
The defendant argues that the trial court erred in dismissing, sua sponte, his section 2

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