Appeal from Circuit Court of Macon County. No. 83CF545. Honorable Rodney A. Scott, Judge Presiding.
As Corrected December 6, 1995.
Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring
The opinion of the court was delivered by: Green
JUSTICE GREEN delivered the opinion of the court:
On November 23, 1983, defendant Albert Williams was charged in the circuit court of Macon County with the offense of retail theft with a prior theft conviction (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3(a)) occurring on November 22, 1983. After a fitness hearing at which defendant was found fit to stand trial, the case was set for jury trial on February 23, 1984, at which time defendant did not appear. The defendant was tried before a jury in his absence and on that date, thecourt entered a judgment on the verdict of the jury finding defendant guilty. On March 2, 1984, in defendant's absence, the court proceeded to hear and deny defendant's post-trial motion and sentenced defendant to three years' imprisonment.
On June 22, 1993, defendant filed a motion in the circuit court of Macon County seeking to have his conviction and sentence voided pursuant to section 115-4.1(e) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4.1(e) (West 1992)). On July 9, 1993, the circuit court denied the motion. On August 6, 1993, the defendant filed a notice of appeal from the denial of that motion. On December 30, 1994, this court entered a summary order affirming pursuant to Supreme Court Rule 23(c)(2) (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(c)(2), eff. July 1, 1994). (People v. Williams (Dec. 30, 1994, 4th Dist. Gen. No. 4-93-0699, unpublished order under Supreme Court Rule 23).) The order was based on the theory that all defendant's claims of error concerned errors allegedly arising at trial and sentencing and did not concern the propriety of trying defendant in absentia. Defendant filed a motion for rehearing which was allowed January 30, 1995.
Section 115-4.1 of the Code provides for the trial of a person charged with crime who is absent at the time of trial. Subsection (e) thereof provides for a procedure whereby a defendant convicted in absentia may obtain a new trial or new sentencing hearing if that defendant "can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control." (725 ILCS 5/115-4.1(e) (West 1992).) Paragraph (g) of the Code then provides:
"A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court." 725 ILCS 5/115-4.1(g) (West 1992).
We concluded we had been mistaken in summarily affirming the order on appeal because defendant's notice of appeal was sufficient to indicate a request for a review of the judgment of conviction and sentence referred to in paragraph (g). On this appeal defendant maintains that (1) the State failed to present sufficient evidence to support a determination that defendant was the person committing the offense; (2) errors occurred in determining that defendant was fit to stand trial; (3) the court did not properly advise defendant of his need to appear at trial; (4) errors occurred at sentencing; and (5) at sentencing, defendant was not given sufficient credit for time served. We affirm.
We have a responsibility to sua sponte determine whether we have jurisdiction. ( In re Marriage of Betts (1987), 159 Ill. App. 3d 327, 330, 511 N.E.2d 732, 734, 110 Ill. Dec. 555; Rothert v. Rothert (1982), 109 Ill. App. 3d 911, 918, 441 N.E.2d 179, 183, 65 Ill. Dec. 387.) In this regard we are concerned with whether section 115-4.1(g) of the Code (725 ILCS 5/115-4.1(g) (West 1992)), purporting to give defendant a "review of the judgment and sentence not vacated by the trial court," is void, at least as applied here, because of a conflict between it and Supreme Court Rule 606(b) (134 Ill. 2d R. 606(b)). That rule requires most appeals by defendants in criminal cases to be perfected within 30 days from the order appealed. Here, defendant seeks review of a judgment of conviction and sentence entered apparently a decade earlier. Rule 606(b) states as follows:
"Time. Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion. Within 5 days of its being so filed a copy of the notice of appeal or an amendment of the notice of appeal shall be transmitted by the clerk of the circuit court to the clerk of the court to which the appeal is taken. Except as provided in paragraph (c) below, and in Rule 604(d), no appeal may be taken from a trial court to a reviewing court after the expiration of 30 days from the entry of the order or judgment from which the appeal is taken." (134 Ill. 2d R. 606(b).)
Rule 604(d) (134 Ill. 2d R. 604(d)) concerns appeals from judgments arising from pleas of guilty. Rule 606(c) (134 Ill. 2d R. 606(c)) allows extensions of time for filing notices of appeal from judgments otherwise covered by Rule 606(b) when extenuating circumstances, not involved here, exist.
We requested the parties to brief this issue and they have made suitable response. A complicated question exists as to whether section 115-4.1(g) of the Code and Rule 606(b) are in conflict in the vast majority of cases where the section 115-4.1(g) appeal is taken many months after the defendant's conviction and sentence. We conclude that no conflict exists, section 115-4.1(g) can be validly applied and we do have jurisdiction.
Aspects of the relationship between section 115-4.1(e) and Rule 606(b) were before the supreme court in People v. Partee (1988), 125 Ill. 2d 24, 530 N.E.2d 460, 125 Ill. Dec. 302. There, a defendant was convicted of crime in absentia. His counsel then filed a timely notice of appeal to the appellate court. The State sought to have the appellate court dismiss the appeal on the theory that when a defendant was tried in absentia, the conviction and sentence do not constitute a final judgment appealable under Rule 606(b) until a section 115-4.1(e) motion is filed and ruled on. The appellate court rejected the State's contention but remanded to the circuit court to obtain a ...