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People v. Hale

OPINION FILED OCTOBER 25, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JERRY L. HALE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Coles County; the Hon. THOMAS M. BURKE, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Can a motion to withdraw a plea of guilty be filed and heard prior to sentencing?

Yes.

But an appeal from a denial of such motion cannot be taken until after sentence and the filing of another a motion to withdraw the plea.

Defendant pleaded guilty to armed robbery. He now appeals, claiming that the trial court abused its discretion in failing to grant his motion to withdraw that guilty plea.

JURISDICTION

This court — in fulfillment of our duty to inquire into our own jurisdiction — issued a rule to show cause why this appeal should not be dismissed for want of a timely notice of appeal. Here is why:

9-11-78 Defendant entered plea of guilty.

10-10-78 Defendant filed first motion to withdraw guilty plea.

11-9-78 Motion denied, defendant sentenced, mittimus issued.

12-6-78 Defendant filed second motion to withdraw guilty plea and to vacate judgment.

2-23-79 Second motion denied.

2-28-79 Notice of appeal filed.

The basic question is at what time must the notice of appeal have been filed? Prior to appealing a judgment on a plea of guilty, a defendant must file with the trial court a motion to withdraw his guilty plea. (58 Ill.2d R. 604(d).) In the instant case, however, we have two such motions which assert the same error alleged on appeal. If the first motion to withdraw the guilty plea was valid for purposes of Rule 604(d), then the only act required by the defendant to perfect his appeal was the filing of a notice of appeal within 30 days of the date sentence was imposed. If this were true, the defendant's notice of appeal here would have had to have been filed ...


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