Appeal from the Circuit Court of Montgomery County; the Hon.
Dennis M. Huber, Judge, presiding.
PRESIDING JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
The defendant, Shannon Gibson, pleaded guilty to burglary and was sentenced to three years' imprisonment on April 1, 1982. On April 2, 1982, the written judgment order was filed. On May 4, 1982, a pro se letter from the defendant was filed by the clerk of the circuit court. The State filed a motion to dismiss on the basis that the letter did not constitute a motion to withdraw the plea of guilty as contemplated by Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)). After a hearing, the court granted the motion to dismiss. The only issue on appeal is whether the letter was timely filed and whether it complies with Supreme Court Rule 604(d). We affirm.
The letter from defendant stated:
I wish to appeal my case, on the grounds of inadequate defence [sic] by my attorney. I was psycologicly [sic] coherced [sic] into pleading guilty. I would also like to have the court appoint me another attorney. Thank you.
Sincerely [sic] yours Shannon Gibson case # 81-CF-94."
At the hearing, the defendant testified that he mailed the letter on April 27, 1982. The court stated that during the week prior to May 4, 1982, he was in another county and that he had no doubt that the letter had been in his basket for a week. As soon as he found the letter, he opened it and had it filed. Assuming, arguendo, that the letter was timely, the appeal must be dismissed because the letter does not constitute a motion to withdraw a plea of guilty as contemplated by Supreme Court Rule 604(d). Defendant's letter does not qualify as a motion to vacate the plea where factual allegations not appearing in the record are not supported by an affidavit and the letter does not request withdrawal of the plea. The letter does not request any action other than in matters relative to the appeal. Therefore, the court properly dismissed the motion. People v. Frey (1977), 67 Ill.2d 77, 83, 364 N.E.2d 46.
Defendant, relying on People v. Parks (1977), 54 Ill. App.3d 967, 369 N.E.2d 1373, contends that the court may treat a letter as a motion to withdraw a plea of guilty. However, in Parks, defendant's letter which was timely filed sought unequivocally to withdraw the negotiated plea of guilty. In the case at bar, defendant's letter does not unequivocally seek to withdraw the negotiated plea of guilty.
For the foregoing reasons, the judgment of the circuit court of Montgomery County is affirmed.
JUSTICE KASSERMAN, dissenting:
I am unable to agree with the decision of the majority; therefore, I respectfully dissent.
The record indicates that defendant testified that on April 27, 1982, he mailed the undated letter referred to by the majority. Although this letter was not filed by the circuit clerk until May 4, 1982, the court stated that it had no doubt that the letter had been in its mail basket for a week prior to its being filed. Thus, had defendant's letter received even routine treatment, it would have been filed in ...