Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 98--CF--1823 Honorable Gerald R. Kinney Judge, Presiding
The opinion of the court was delivered by: Justice Homer
Gaylyn Green pled guilty to retail theft (720 ILCS 5/16A--3 (West 2000)) and was sentenced to six years' imprisonment. Green filed a timely motion to reconsider his sentence, which the trial court denied. The trial court did not advise Green that he could appeal, and no appeal was filed. Nine months later, Green filed a pro se motion for reduction of his sentence, which the trial court construed as a post-conviction motion. The trial court denied the motion, and Green appealed. Following our careful review, we remand to the trial court for proper admonitions so that Green may file a notice of appeal as required by Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d).
Gaylyn Green was charged with retail theft (720 ILCS 5/16A--3 (West 2000)) for allegedly stealing $452 worth of clothing from Sears in Joliet. On November 1, 1999, Green entered a guilty plea. Green signed a guilty plea form acknowledging that he freely and voluntarily waived his right to a jury trial and subjected himself to the penalty that the judge could impose. The trial court informed Green of the applicable minimum and maximum sentences, including the possibility of an extended--term sentence. After some questioning, the court found that Green's plea was voluntary, accepted the plea and entered judgment of conviction. On November 9, 1999, the court sentenced Green to a six-year extended term of imprisonment because of his criminal history. At the conclusion of the sentencing hearing, the court advised Green that he had to file a motion to withdraw his guilty plea or reconsider his sentence within 30 days and that he would be provided a transcript as well as an attorney if he could not afford one. However, the court failed to inform Green about his right to appeal.
On November 19, 1999, Green's counsel filed a motion to reconsider Green's sentence. That motion was denied on December 15, 1999. No appeal admonition was given after the trial court's denial of the motion to reconsider. Neither Green nor his counsel filed a certificate or a notice of appeal in accordance with Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d).
On August 29, 2000, Green filed a pro se motion for reduction of his sentence along with a request for leave to file the motion late. The motion alleged Green only pled guilty because his attorney promised him a probation sentence of 36 months. The motion also alleged that Green was unable to make clear decisions when he pled guilty because he was under the influence of a controlled substance and suffered a head injury. The trial court construed defendant's pro se motion as a post-conviction motion because it was filed over 30 days after Green's sentencing. On October 11, 2000, the court denied Green's motion for a reduction of sentence and notified him that he had the right to appeal the order.
Green filed a timely notice of appeal. In his appeal, Green argues, inter alia, that his case should be remanded to the circuit court because of its failure to admonish him regarding his right to appeal. We agree and therefore remand to the trial court for the proper admonitions.
Whether this case should be remanded to the circuit court because the court failed to properly admonish the defendant is a legal issue involving the application of law to uncontroverted facts and is therefore reviewed de novo. People v. Boyer, 305 Ill. App. 3d 374, 375, 713 N.E.2d 655, 656 (1999).
Supreme Court Rule 605(b) contains certain admonitions that must be provided to a defendant who pleads guilty. Rule 605(b) provides: "In all cases in which a judgment is entered upon a plea of guilty, other than a negotiated plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that the defendant has a right to appeal;
(2) that prior to taking an appeal the defendant must file in the trial court within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion;
(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the ...