Appeal from the Circuit Court of St. Clair County; the Hon.
Patrick J. Fleming, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Defendant, Gary Potts, appeals the judgment entered on his negotiated plea of guilty to the offenses of residential burglary and theft over $300. The State, however, in support of its contention that this court lacks jurisdiction to hear this case, points to the following chronology as being dispositive of the appeal:
April 14, 1983 Defendant entered plea of guilty to theft over $300. Court accepted plea.
May 10, 1983 Defendant filed notice of intent to petition court to withdraw guilty plea; notice contained paragraph requesting court to allow defendant to withdraw guilty plea or, in the alternative, requesting court to appoint counsel for him outside of the office of the public defender to assist him in the proper preparation of such a motion.
June 28, 1983 Defendant's motion to withdraw guilty plea denied.
July 7, 1983 Defendant sentenced to five years' imprisonment.
July 20, 1983 Defendant filed notice of appeal.
July 27, 1983 Defendant filed second motion to withdraw guilty plea; motion never ruled upon.
• 1 The jurisdictional defect upon which the State urges us to dismiss is the defendant's failure to properly follow the procedures outlined in Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)) for withdrawal of his guilty plea. According to the rule, a defendant may not appeal from a judgment entered upon a plea of guilty unless the defendant files a motion to withdraw his plea of guilty and vacate the judgment within 30 days of the date he is sentenced. The motion must be properly presented to the trial court, which must then promptly hear the motion and rule upon it. If the motion is denied and the defendant desires to appeal, the notice of appeal must be filed within 30 days of the denial. (87 Ill.2d R. 604(d).) The failure of a defendant convicted on a plea of guilty to file a Rule 604(d) motion is a jurisdictional defect which prevents this court from entertaining an appeal from that judgment unless the defendant has not been properly admonished pursuant to Supreme Court Rule 605(b) (87 Ill.2d R. 605(b)) that he must file such a motion in order to preserve his right to appeal. People v. Lundeen (1977), 55 Ill. App.3d 799, 371 N.E.2d 329.
In the instant case, we note that although the defendant was not properly admonished according to Rule 605(b) at his sentencing hearing, he nonetheless proceeded to file a timely Rule 604(d) motion as required by the rule. We believe that this fact negates any suggestion that defendant was misled or prejudiced by the improper admonition (see People v. Leon (1978), 66 Ill. App.3d 778, 383 N.E.2d 1378) since defendant has, in fact appealed. Any failure on the part of defendant to preserve his right to appeal is not due to his failure to file a timely Rule 604(d) motion; he did that on July 27, 1983. Rather, it is due to defendant's failure to bring his Rule 604(d) motion to the court's attention for a ruling prior to the time he filed a notice of appeal from the disposition of that motion as is required by Rule 604(d). We must conclude that in light of defendant's actions, the improper admonishment at sentencing was harmless and did not prejudice defendant's right to appeal. The timely filing of a Rule 604(d) motion was, therefore, not waived and defendant was not absolved of his responsibility to otherwise preserve his right to appeal.
Having determined that the timely filing of a Rule 604(d) motion has not been waived, we must now determine whether either of defendant's two Rule 604(d) motions satisfied the rule so as to allow this court to entertain the appeal.
• 2 Since the defendant filed the May 10 Rule 604(d) motion before he was sentenced, unless there is an exception to the rule that motion was premature and, as such, failed to fulfill Rule 604(d)'s jurisdictional requirement. Defendant's second Rule 604(d) motion, while satisfying the rule's 30-day post-sentence filing requirement, nevertheless failed to satisfy the rule's remaining provisions since the motion was never ruled upon and a notice of appeal was never filed following its disposition. Because the defendant has not filed a second notice of appeal, our jurisdiction over this appeal must be based on the notice of appeal filed on July 20, 1983, which was prior to defendant's second Rule 604(d) motion, with the result that defendant's second Rule 604(d) motion may not be considered by this court. The issue thus becomes whether, under these facts, defendant's May 10 Rule 604(d) motion, despite being filed prior to sentencing, may be considered sufficient under Rule 604(d) to allow us to entertain the appeal. We hold that it may not.
• 3 We believe that the defendant in People v. Hale (1979), 77 Ill. App.3d 721, 396 N.E.2d 317, rev'd on other grounds (1980), 82 Ill.2d 172, 411 N.E.2d 867, followed the proper procedure in such situations. In Hale, the defendant filed his first Rule 604(d) motion prior to sentencing, but filed another Rule 604(d) motion after being sentenced. Both motions were denied, and defendant filed his notice of appeal following the second denial. The court held that the first Rule 604(d) motion could be properly heard and disposed of prior to sentencing, but that an appeal could not be taken from the denial of that motion until defendant had been sentenced and a second Rule 604(d) motion had been considered as required by Supreme Court Rule 604(d). The Hale court reasoned that it would be "futile to require a defendant who discovers an error in the guilty plea to wait until a presentence report is prepared (and during any possible continuances in the sentencing hearing) before filing a motion to withdraw his guilty plea." (77 Ill. App.3d 721, 723, 396 N.E.2d 317, 318.) By enlarging the defendant's opportunities to have his grievances heard, the Hale court thus attempted to eliminate the delay inherent in waiting until after sentencing to file a Rule 604(d) motion. The court found that it had jurisdiction to hear the appeal since defendant had filed a second Rule 604(d) motion which was ruled upon before defendant filed his notice of appeal. In so holding, the Hale court was able to equitably balance both the defendant's interest in the immediate airing of his grievances and the supreme court rule's jurisdictional requirement and satisfy each of them. We believe this to be a fair and reasonable approach.
The case of People v. Paul (1981), 93 Ill. App.3d 302, 417 N.E.2d 251, also dealt with the issue before us. There, as in the case before us, the Rule 604(d) motion was filed prior to sentencing, and the defendant was not properly admonished at the sentencing hearing. The defendant in Paul, however, failed to file a second Rule 604(d) motion. In dictum, the Paul court specifically questioned the wisdom of the Hale decision, but found the facts it was faced with to be distinguishable and was therefore able to find that it had jurisdiction over the appeal. The court expressed concern that strict ...