Appeal from the Circuit Court of Johnson County. No. 97-CF-72 Honorable Terry J. Foster, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Sheldon Pittman (defendant), appeals his sentence following the entry of his guilty plea for two counts of unlawful possession of contraband in a penal institution. Defendant contends that his sentence on his conviction for the offense of unlawful possession of cocaine violates section 5-5-4 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-5-4 (West 1996)) and that his sentence on his conviction for the offense of unlawful possession of cannabis is improper under the supreme court's ruling in People v. Jordan, 103 Ill. 2d 192 (1984).
Initially, this court dismissed the appeal for a lack of jurisdiction because we determined that defendant's notice of appeal was filed prematurely, i.e., the notice of appeal was filed after the court's oral pronouncement of the sentence but before the entry of the written order. Our determination was based upon the following. Defendant originally pleaded guilty to two counts of unlawful possession of contraband in a penal institution (crack cocaine and cannabis) on September 22, 1997. On November 12, 1997, the court sentenced defendant to 12 years' incarceration for unlawful possession of cocaine and to eight years' incarceration for unlawful possession of cannabis. Defendant filed a motion to withdraw his guilty plea, and on March 17, 1998, the court granted defendant's motion. The court also vacated defendant's sentences, and Judge James Williamson recused himself from the case.
Defendant again pleaded guilty to the same offenses before Judge Terry Foster on May 15, 1998. On July 22, 1998, Judge Foster sentenced defendant to 14 years' incarceration for the offense of unlawful possession of cocaine and eight years' incarceration for the offense of unlawful possession of cannabis. Defendant filed a motion to reconsider his sentence. A hearing was held on November 13, 1998, on defendant's motion, and Judge Foster made the following docket entry that day:
"ASA [assistant State's Attorney] & Attorney Herbert [defense counsel] are present. Attorney Herbert is given leave to amend the Motion to Reconsider Sentence with additional argument. The Court considers the Supplement filed yesterday to be an amendment to the Motion to Reconsider. The Attorneys argue and the matter is under advisement. The Court finds that [section] 5-8-1(c) does not apply as defendant did not move for reconsideration of his original sentence but withdrew his plea of guilty and the original judgment and sentence was vacated. Also, the Court finds section 5-5-4 does not apply for the reasons set forth in Miller, 676 N.E.2d 309. The other arguments raised by Defendant are not well taken[,] and the Motion to Reconsider and the Supplement are denied. [The assistant State's Attorney] will prepare an Order. The Clerk will mail a copy of this docket sheet to counsel."
On November 17, 1998, defendant's counsel filed a notice of appeal. Subsequently, a written order, essentially stating the court's ruling as entered on the docket sheet above, was entered on November 20, 1998. An amended notice of appeal was never filed after November 20, 1998.
Based upon the foregoing facts, this court determined that defendant's notice of appeal was premature under Supreme Court Rule 271 (134 Ill. 2d R. 271). Rule 271 provides:
"When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise." 134 Ill. 2d R. 271.
In People v. Jones, 104 Ill. 2d 268 (1984), the supreme court determined that a court's decision on a motion to suppress was not a final judgment but was a ruling on a motion other than in the course of trial and that Rule 271 applied. Jones, 104 Ill. 2d at 275. In Jones, the trial court made an oral pronouncement that it was granting defendant's motion to suppress, and the supreme court found that the trial court contemplated that a written order would be prepared and entered. A written order was entered more than four months later. After the oral pronouncement but before the entry of the written order, the State filed a notice of appeal. The supreme court held that the State's notice of appeal was premature and that the notice of appeal did not confer jurisdiction on the appellate court. See Jones, 104 Ill. 2d at 276. Thus, in the case sub judice, based upon the holding in Jones, this court determined that under Rule 271 defendant had filed his notice of appeal prematurely, because defendant's motion to reconsider sentence was a motion not made in the course of the trial, because the court directed that a written order be prepared and the order was prepared a week after the hearing, and because defendant filed his notice of appeal after the oral pronouncement of the sentence and before the entry of the written order. Therefore, this court dismissed defendant's appeal for a lack of jurisdiction.
Defendant filed a motion for supervisory order with the supreme court. On June 26, 2000, the supreme court entered the following supervisory order:
"This cause coming to be heard on the motion of the movant, due notice having been given to the respondents, and the court being fully advised in the premises;
IT IS ORDERED that the motion for supervisory order is allowed. In the exercise of this court's supervisory authority, the Appellate Court, Fifth District, is directed to vacate its order of May 23, 2000, dismissing the appeal in People v. Pittman, No. 5-98-0747. The appeal shall be reinstated, and the appellate court shall consider the appeal on the merits. Order entered by the Court."
Therefore, in accord with the supreme court's supervisory order, we consider the merits ...