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09/22/88 the People of the State of v. Julie Ann Johnson

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JULIE ANN JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 1360, 174 Ill. App. 3d 812, 124 Ill. Dec. 252 1988.IL.1427

Appeal from the Circuit Court of Champaign County; the Hon. Jeffrey B. Ford, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT, J., concurs. PRESIDING JUSTICE GREEN, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On December 9, 1987, defendant Julie Ann Johnson entered a plea of guilty to driving under the influence of alcohol, and judgment was entered based on the plea. On January 19, 1988, rather than sentencing the defendant, the trial court placed defendant under supervision pursuant to section 5-6-1(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-1(c)). Prior to granting supervision, the trial court stated one of the conditions of supervision would require the defendant to place an advertisement in the Champaign daily newspaper publishing the picture taken of the defendant when booked, together with an apology for her conduct. The defendant was required to and did agree to this condition prior to the supervision being granted. The sole purpose of defendant's appeal is to challenge the propriety of this condition.

APPELLATE JURISDICTION

We first address the issue of appellate jurisdiction. Section 5 -- 6 -- 1(c) of the Code allows for a court order of supervision with the possibility of the defendant being discharged without judgment being entered. Because judgment was entered on the plea on December 9, 1987, and such is inconsistent with supervision, we find the December 9 judgment was effectively vacated by the court's January 19, 1988, order granting supervision. See People v. Allen (1985), 109 Ill. 2d 177, 486 N.E.2d 873.

A problem still exists because Supreme Court Rule 604(d) provides, in part:

"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." (107 Ill. 2d R. 604(d).)

This condition applies to those sentenced to incarceration, to probation, or to conditional discharge, and has been held to be mandatory. (See People v. Wilk (1988), 124 Ill. 2d 93.) Because the rule refers to an appeal from a judgment and judgment is not entered when supervision is ordered, we conclude that Rule 604(d) does not apply to this case. A defendant cannot ask to vacate a judgment when none exists. The present appeal is pursuant to authority granted by Rule 604(b), which provides:

"A defendant who has been placed under supervision or found guilty and sentenced to probation or conditional discharge (see Ill. Rev. Stat. 1981, ch. 38, pars. 1005-6-1 through 1005-6-4), or to periodic imprisonment (see Ill. Rev. Stat. 1981, ch. 38, pars. 1005-7-1 through 1005-7-8), may appeal from the judgment and may seek review of the conditions of supervision, or of the finding of guilt or the conditions of the sentence, or both. He may also appeal from an order modifying the conditions of or revoking such an order or sentence." (107 Ill. 2d R. 604(b).)

We conclude that defendant's appeal is properly ...


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