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11/18/88 the People of the State of v. John W. Favelli

November 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN W. FAVELLI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 386, 176 Ill. App. 3d 618, 126 Ill. Dec. 91 1988.IL.1672

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is the second opinion filed in this case. The original opinion dismissed the case under People v. Wilk (June 20, 1988), Nos. 64738, 64739, 64742, 64744. Subsequent to the filing of that opinion, the supreme court modified its opinion in People v. Wilk (1988), 124 Ill. 2d 93. Pursuant to a petition for rehearing, we withdrew our original opinion and now address this case under Wilk as modified.

Defendant, John Favelli, pleaded guilty to two counts of unlawful delivery of a controlled substance to a person under 18 years of age (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1407(a)). In exchange for defendant's guilty plea, the State nol-prossed two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(c)), one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)), and one count of unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(d)). Defendant was sentenced to two concurrent terms of 10 years' imprisonment and appeals solely from the trial court's imposition of sentence.

On appeal defendant contends that the trial court (1) abused its discretion in sentencing when it twice factored in the difference in the ages of defendant and the buyer; and (2) erred in considering defendant's receipt of proceeds from the sale of drugs as an aggravating factor in sentencing.

The State has filed a motion to dismiss this appeal contending that defendant's failure to withdraw his guilty plea before appealing his sentence leaves this court without appellate jurisdiction. See People v. Stacey (1977), 68 Ill. 2d 261, 266-67.

Defendant filed a response to the State's motion contending that he did not comply with Rule 604(d) because the trial court failed to admonish him that a Rule 604(d) motion was necessary to perfect his appeal as required by Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)). We ordered both the State's motion and the defendant's response to be taken with the case, and both parties have addressed the issue concerning defendant's failure to comply with Rule 604(d) in their appellate briefs.

On January 15, 1987, after imposing defendant's sentence, the trial court gave defendant the following admonishments:

"I advise you, Mr. Favelli, that since the Judgment was entered pursuant to a plea of guilty, you have the right to appeal.

Prior to taking an appeal, the defendant must file with the Court within 30 days from the date which the sentence was imposed a written motion asking to have the Judgment vacated and for leave to withdraw your motion -- leave to withdraw your plea of guilty setting forth specifically the grounds in the motion.

If the motion is allowed, the plea of guilty, sentence and the Judgment will be vacated; and a trial date will be set on the charges to which the plea is made.

Upon the request of the State, any charges that may have been dismissed as a part of this agreement could be reinstated and would also be set for trial.

If you are indigent, a copy of the transcript of these proceedings at the time of your plea of guilty and sentence will be provided for you without cost; and an attorney will be ...


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