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09/12/89 the People of the State of v. Michael A. Smith

September 12, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MICHAEL A. SMITH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 413, 188 Ill. App. 3d 387, 135 Ill. Dec. 917 1989.IL.1412

Appeal from the Circuit Court of Du Page County; the Hon. Donald J. Hennessy, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

The State appeals from an order of the circuit court of Du Page County which vacated the conviction of defendant, Michael A. Smith, for driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)). Defendant brought his motion to vacate pursuant to section 2-1401(a) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401(a)) eight months after his conviction following a guilty plea. The State contends that the trial court erred in granting defendant's motion on the basis that the motion did not state adequate grounds for relief under section 2-1401. We reverse.

The record indicates that defendant was arrested on August 12, 1987, and charged with driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)); driving with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)); and driving a motorcycle in violation of his driver's license classification (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-104(a)). Defendant was subsequently charged with criminal damage to State-supported property (Ill. Rev. Stat. 1987, ch. 38, par. 21-4(a)) arising out of damage to a telephone in the Du Page County jail.

On December 3, 1987, defendant appeared without counsel and pleaded guilty to all of the charges except driving with a blood-alcohol concentration of 0.10 or more, which was nol-prossed. The trial court admonished defendant and advised him of his rights. After accepting the guilty plea, the court fined defendant $500 for the DUI conviction, $60 for the violation of driver's license classification conviction, and $100 for the criminal damage to property conviction. Defendant did not move to vacate his plea within 30 days of the convictions or anytime thereafter.

On July 29, 1988, defendant filed a verified motion pursuant to section 2--1401 of the Code to vacate his conviction of driving while under the influence of alcohol. Defendant's motion alleged that (1) he appeared in court without counsel on December 3, 1987; (2) prior to his case being called, defendant spoke with an assistant State's Attorney regarding a plea of guilty; (3) during this conversation, the assistant State's Attorney indicated to defendant that if he were to plead guilty he would probably receive a sentence of court supervision on the charge of DUI; (4) at no time did the assistant State's Attorney inform defendant that a conviction would result in his driving privileges being revoked for at least one year; (5) defendant was under pressure and without the benefit of counsel to advise him of the potential consequences of his plea; (6) the admonishments by the court were incomplete and insufficient in that they failed to advise him regarding the potential consequences of his plea; (7) defendant's father was terminally ill at the time defendant entered his plea; (8) defendant did not receive his notices of revocation and suspension resulting from his conviction in this matter until after the expiration of 30 days from the December 3, 1987, judgment, thus preventing him from filing a timely post-judgment motion to vacate his plea of guilty; and (9) should the court see fit to vacate the convictions, defendant would be able to present a meritorious defense and extenuating circumstances.

At the hearing on the motion, the trial court ruled that it had not adequately admonished unrepresented DUI defendants in general, and this defendant in particular, as to the potential loss of driving privileges resulting from a conviction of DUI. Accordingly, the court ruled that defendant's motion to vacate would be granted on that basis. The court subsequently entered an order in accordance with its oral ruling and set the matter for further proceedings. The State then brought this timely appeal.

We initially note that the State has filed this appeal pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301), which governs appeals from final orders. Because there are matters still pending below, the State's citation to Supreme Court Rule 301 is incorrect. We nonetheless note our jurisdiction to consider this case under Supreme Court Rule 304(b)(3) (107 Ill. 2d R. 304(b)(3)), which governs appeals from orders granting or denying relief under section 2--1401. (See Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 144.) Having determined that we have jurisdiction to hear the appeal, we further note that defendant has not filed an appellee's brief. However, because the record is simple and the claimed errors are such that we can easily decide them without the aid of an appellee's brief, we will address the merits of the case. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

The State contends that the trial court erred in granting defendant's motion to vacate pursuant to section 2--1401 of the Code on the basis that the motion did not state adequate grounds for relief under that section. We agree.

Section 2-1401 of the Code, formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from the entry thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401(a); see Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220.) To be entitled to relief under section 2-1401, the party seeking relief must set forth specific factual allegations supporting (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 motion. Smith v. Airoom, 114 Ill. 2d at 220-21.

In a criminal proceeding, section 2--1401 provides a modern substitute for a writ of error coram nobis permitting vacation of judgments obtained by duress or fraud, or judgments entered because of a party's excusable mistake or ignorance, where, without the party's own negligence, the party has been deprived of a defense which, if known to the court, would have prevented judgment. (People v. Smith (1988), 176 Ill. App. 3d 132, 136; In re Charles S. (1980), 83 Ill. App. 3d 515, 517.) In other words, relief under this section is appropriate where the omission of a valid defense was caused by fraud, duress, or excusable mistake. (See People v. Stewart (1978), 66 Ill. App. 3d 342, 347.) The various types of error of fact which a section 2--1401 motion is employed to correct include such matters as the death of a party before judgment, infancy where the party is not properly represented, incompetency at the time of trial, and a valid defense which was not made due to duress, fraud, or excusable mistake. (People v. Hinton (1972), 52 Ill. 2d 239, 243.) The motion must establish adequate grounds for relief and must show that the party seeking relief was not negligent in failing to raise that ground at trial. (People v. Sanchez (1986), 115 Ill. 2d 238, 284; People v. Jennings (1971), 48 Ill. 2d 295, ...


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