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People v. Stacey

OPINION FILED OCTOBER 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

DOUGLAS STACEY, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

RUSSELL BRYANT, APPELLANT.



No. 48829. — Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Williamson County, the Hon. William K. Lewis, Judge, presiding.

No. 49383. — Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Franklin County, the Hon. Philip B. Benefiel, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 23, 1977.

Michael J. Rosborough, Deputy Defender, and Randy E. Blue, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.

William J. Scott, Attorney General, of Springfield (Donald B. Mackay and Timothy B. Newitt, Assistant Attorneys General, of Chicago, of counsel), for the People.

The question for decision is whether a defendant, sentenced on a plea of guilty, who wishes to appeal only the sentence entered thereon must, pursuant to Rule 604(d) (58 Ill.2d R. 604(d)), file a motion to withdraw his plea and vacate the judgment entered thereon prior to undertaking an appeal.

These consolidated appeals present this issue. In each case the appellate court dismissed the appeal. We granted leave to appeal pursuant to Rule 315 (58 Ill.2d R. 315).

In cause No. 48829, defendant, Douglas Stacey, on June 2, 1975, pursuant to a plea agreement, entered a plea of guilty to the offense of robbery. He had originally been indicted for armed robbery. On August 26, 1975, a sentence was imposed. The judge advised Stacey in open court that if he desired to appeal, he must first file a motion to vacate the judgment entered on the plea of guilty within 30 days of that date. On September 26, 1975, 31 days later, Stacey filed a letter with the clerk of the circuit court expressing his desire to appeal. On September 29, 1975, 34 days after the judgment, a notice of appeal was filed, and the public defender was appointed to represent Stacey. At no time was any motion made to either withdraw the plea or to vacate the judgment. A motion was made in the appellate court to dismiss the appeal for failure to comply with Rule 604(d), and it was granted.

In cause No. 49383, defendant, Russell Bryant, entered a plea of guilty on July 28, 1975, pursuant to an agreement with the State to modify certain charges. At the time of sentencing the court advised Bryant of the necessity of filing a motion under Rule 604(d) to vacate the judgment entered on the plea within 30 days. On August 6, 1975, Bryant filed a motion to reduce the sentence. It was denied on August 25, 1975. Bryant appealed from the denial of this motion. That appeal was dismissed for failure to comply with Rule 604(d). 45 Ill. App.3d 428.

It is to be noted that in the case of Bryant a motion was filed to reduce or modify the sentence within 30 days, presumably pursuant to section 5-8-1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-1(d)). Stacey filed no such motion. This fact, however, does not alter in any wise the two cases.

Supreme Court Rule 604(d) provides:

"Appeal by Defendant from a Judgment Entered upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced, and if that judge is then not sitting in the court in which the judgment was entered, then to the chief judge of the circuit, or to such other judge as the chief judge shall designate. * * *" 58 Ill.2d R. 604(d).

In People v. Frey (1977), 67 Ill.2d 77, we recently upheld the requirement of Rule 604(d) that a defendant convicted on a plea of guilty must first file a timely motion in the trial court to withdraw his plea as a condition to appealing his conviction. In the three appeals considered in Frey the defendants' claims were that their pleas of guilty were coerced, or had resulted from inadequate representation by appointed counsel or from a promise by the prosecution which had not been fulfilled.

Our decision in Frey was premised in part on the thesis that challenges to the voluntariness of a guilty plea should be addressed in the first instance to the trial court because such challenges involve evidence by the parties to a negotiated plea. A similar procedure is followed in the Federal courts> under Rule 32(d) of the Federal Rules of Criminal Procedure. (See United States v. Briscoe (8th Cir. 1970), 428 F.2d 954, 956; United States v. Mims (8th Cir. 1971), 440 F.2d 643.) We agree, however, ...


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