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JUSTICE KAPALA delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County,defendant, Jared L. Gaines, was found guilty of aggravated batteryof a child (720 ILCS 5/12--4.3(a) (West 1998)) and was sentenced to28 years' imprisonment. His conviction and sentence were affirmedon direct appeal. People v. Gaines, No. 2--99--1262 (2001)(unpublished order under Supreme Court Rule 23). On April 19,2001, one day before our decision in defendant's direct appeal wasfiled, defendant filed a timely pro se petition seeking relief fromthe judgment of conviction pursuant to section 2--1401 of the Codeof Civil Procedure. 735 ILCS 5/2--1401 (West 2000). In hispetition, defendant alleged that he and a codefendant, CherrieSargent, were tried simultaneously and that the jury hearingdefendant's case heard evidence that Sargent had made statementsthat she and defendant had conspired to kill their child. In hispetition defendant claimed that his conviction was a direct resultof Sargent's statements. With the petition, defendant submitted anaffidavit from Sargent averring that the statements were false andthat she made them in response to coercion from police whothreatened to take her child away if she did not make thestatements. Defendant made an additional request for theappointment of counsel.

On April 20, 2001, the trial court appointed the Lake Countypublic defender to represent defendant, advised the prosecutor thatit would give defendant a hearing date, and set the petition forstatus.

On April 24, 2001, the State filed a "motion to reconsider". Although it addressed the merits of defendant's petition, theState's motion to reconsider did not expressly seek a dispositiveruling on the petition. Rather, the prayer for relief consisted ofthe following sentence fragment: "WHEREFORE the People of the Stateof Illinois respectfully request this Court to reconsider anyrulings made regarding the Petition filed by [defendant], and thatthe Court." In its motion the State claimed that in order toprevail on his petition defendant "must prove on the face of hispetition that the 'newly discovered evidence' existed at the timeof his trial." According to the State, "Cherrie Sargeant [sic]testified during her portion of this double jury trial and saidtestimony was different, but not substantially so, from heraffidavit." In seeming contradiction, however, the State stated that "[t]he testimony of Cherrie Sargeant [sic] was not availableto [defendant] during the prior trial due to her Fifth Amendmentright against self-incrimination." The State further contendedthat the evidence would not have changed the result of defendant'strial.

The judge, who was different from the judge who had presidedover defendant's trial, heard the State's motion the same day itwas filed. An assistant public defender appeared on defendant'sbehalf, but he advised the court that he had received no priornotice of the motion and was unprepared to argue against it. TheState, however, was allowed to proceed with its argument. Whilethe State recognized that defendant filed his petition pursuant tosection 2--1401 of the Code of Civil Procedure, the Statecontended:

"It's much like a post-conviction petition, but on the 2--1401, the defendant must show on the face of his petitionthat evidence existed, No. 1, at the time of his trial. No.2, that through no fault of his own, it was newly discovered. And No. 3, that it would change a result of his trial. If hedoes not show that, we don't go any further. We don't haveany attorneys appointed; we don't order him to be brought toLake County, and the State does not have to file a response tothat petition." (Emphasis added.)

Similarly, the State contended:

"Nothing happens, and that includes the appointment of anattorney, until the Court finds the petitioner has sustainedhis burden of proof on the face of his complaint. Nothing. He has no right to be present; he does not get an attorney. No hearing is ordered; the State does not have to respond."(Emphasis added.)

Having essentially taken the position that, as with apostconviction petition, the State was not required to respond tothe section 2--1401 petition until the trial court made anindependent determination of the sufficiency of the petition, theState nonetheless proceeded with an argument on the merits of thepetition contending, inter alia, that Sargent's statement "isn'tany different now than it was then, which shows that, No. 1, it'snot newly discovered evidence." According to the State:

"She said this to the jury last time. She said the policeforced her to say what she said. The jury rejected that."

The State also indicated that defendant's direct appeal was stillpending, although, in fact, our decision had been issued a few daysearlier.

Based on the State's representations about Sargent'stestimony, the trial court ruled Sargent's statements were notnewly discovered evidence. The court noted that the case was"pending before the appellate court, where issues of this magnitudecan be raised." The court also found that the petition was"frivolous at this juncture" and terminated the appointment ofcounsel. In a written order, the trial court dismissed thepetition on the basis that defendant "fail[ed] to sustain hisburden of proof." This appeal followed. We note that the recordon appeal does not include a transcript of defendant's trial.

Defendant argues that the trial court erred in dismissing hispetition. Based on the substantial irregularities in theproceedings below, we agree. Our supreme court has described theapplication of section 2--1401 to criminal convictions:

"Section 2--1401 of the Code of Civil Procedure (735 ILCS5/2--1401 (West 1996)) provides a comprehensive statutoryprocedure by which final orders, judgments, and decrees may bevacated after 30 days from their entry. Although a section2--1401 petition is usually characterized as a civil remedy,its remedial powers extend to criminal cases. [Citation.] Asection 2--1401 petition for relief from a final judgment isthe forum in a criminal case in which to correct all errors offact occurring in the prosecution of a cause, unknown to thepetitioner and court at the time judgment was entered, which,if then known, would have prevented its rendition.[Citations.]" People v. Haynes, 192 Ill. 2d 437, 460-61(2000).

In his petition, defendant asserted that newly discovered evidencethat a codefendant made false statements under duress would haveprevented defendant's conviction.

The State essentially advocated treating defendant's petition as a postconviction petition, and the trial court's dismissal orderresembles a summary dismissal under section 122--2.1(a)(2) of thePost-Conviction Hearing Act (Act) (725 ILCS 5/122--2.1(a)(2) (West2000)). Section 2--1401 and the Act both afford procedures foradvancing a collateral challenge to a criminal conviction, but theyare separate and distinct remedial provisions. Thus, for example,while only constitutional claims are cognizable in a postconvictionproceeding (725 ILCS 5/122--1(a) (West 2000)), this limitation doesnot apply in proceedings under section 2--1401 (see People v.Brown, 169 Ill. 2d 94, 107 (1995)).

More importantly, the particular statutory proceduresapplicable to petitions under the Act do not apply to section 2--1401 proceedings. The Act instructs the trial court toindependently examine a postconviction petition within 90 daysafter it is filed. 725 ILCS 5/122--2.1(a) (West 2000). "At thisstage, the Act does not permit any further pleadings from thedefendant or any motions or responsive pleadings from the State." People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The court isdirected to summarily dismiss the petition if the court finds thatit is "frivolous or is patently without merit." 725 ILCS 5/122--2.1(a)(2) (West 2000). Otherwise, the petition is docketed forfurther proceedings of a traditional adversary nature. 725 ILCS5/122--2.1(b) (West 2000). The Act provides that after the court'ssummary review counsel may be appointed for indigent defendants. 725 ILCS 5/122--4 (West 2000). In contrast, section 2--1401 has nocorresponding provision for independent examination by the trialcourt, nor is the trial court authorized to summarily dismiss asection 2--1401 petition. Moreover, unlike proceedings under theAct, there is no statutory basis for the appointment of counsel ina section 2--1401 proceeding.

During the proceedings below, the State argued thatdefendant's petition was subject to summary dismissal. As noted,the summary dismissal procedure is applicable to postconvictionpetitions, not section 2--1401 petitions. Moreover, even if thiswas a postconviction matter, summary dismissal would have been improper because the State participated in the summary reviewproceedings and the trial court clearly relied on the State'sarguments. See Gaultney, 174 Ill. 2d at 419-20.

A section 2--1401 petition is akin to the complaint in acivil action, and to challenge the petition, the opponent musteither move to dismiss it or file an answer. See Carroll & Nieman,Inc. v. Silverman, 28 Ill. App. 3d 289, 290-91 (1975). It isapparent from the court's order that the trial judge considered theState's "motion to reconsider" as a motion to dismiss. As thewritten order stated, "it is hereby ordered that the People'smotion is granted, and the petitioner's 2-1401 petition isdismissed."

Here, the procedures followed below were seriously flawed. Defendant's attorney was not given adequate notice of the motionand did not have a meaningful opportunity to respond. This wasparticularly unfair in this case as the State based its argument,in part, on evidence at trial even though the judge who heard theState's motion had not presided over the trial and was not familiarwith the evidence. We believe basic notions of fairness dictatethat the defendant be afforded notice of, and an opportunity torespond to, any motion or responsive pleading by the State.Specifically, in this case, defendant should have had anopportunity to respond to the State's factual representations aboutwhat occurred at trial.

On appeal, the State largely ignores the proceduralirregularities below, focusing instead on the merits of thepetition. According to the State, defendant's petition does notwarrant relief under section 2--1401 because Cherrie Sargent'saffidavit is essentially the same as her trial testimony. Thisargument is not cognizable in this court because Sargent's trialtestimony is not part of the record on appeal. We will notconsider facts outside the record. See Talbert & Mallon, P.C. v.Stokes Towing Co., 213 Ill. App. 3d 992, 996 (1991).

For the foregoing reasons, the judgment of the circuit courtof Lake County is reversed, and the cause is remanded for furtherproceedings.

Reversed and remanded.

BOWMAN and GROMETER, JJ., concur.