Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois Nos. 98--CF--1503, 98--CF--1623 and 98--CF--1741 Honorable Stephen D. White, Judge, Presiding
The opinion of the court was delivered by: Presiding Justice Lytton
After the defendant, Eleanor Flowers, negotiated an agreement that the State would recommend four-year concurrent prison sentences, she pled guilty to a total of seven counts of forgery (720 ILCS 5/17--3(a)(2) (West 1998)) in three consolidated cases. At the guilty plea hearing, the trial judge did not admonish her that she could be ordered to pay restitution. The judge did not concur in the plea agreement and instead sentenced defendant to concurrent five-year terms of imprisonment. She also was ordered to pay restitution and court costs. The court authorized the Department of Corrections (DOC) to withhold 50% of her prison income to pay restitution and costs. The defendant filed an untimely motion to reconsider sentence in which she argued that she should have received four-year rather than five-year prison sentences. The motion was denied, and the defendant appealed.
In this appeal, the State argues that, under People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218 (1988), this court lacks jurisdiction to hear the defendant's appeal because she failed to comply with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). The defendant argues that (1) this court has jurisdiction to hear her appeal, (2) the restitution order must be vacated because the trial court failed to admonish her concerning restitution, and (3) the trial court lacked statutory authority to order that 50% of her prison income be withheld to pay for court costs. We find that we have jurisdiction in this case and vacate those parts of the order that require defendant to pay restitution and the DOC to withhold 50% of the defendant's income, but otherwise affirm.
On April 5, 1999, the defendant negotiated a guilty plea in which the State would recommend that she serve four-year concurrent prison sentences. Prior to accepting her plea, the judge told the defendant that he would not be bound by the State's recommendation in his sentencing decision. The court admonished her that she could receive a maximum of three consecutive sentences of 10 years' imprisonment, up to a $25,000 fine in each case, and one year of mandatory release in each case. The judge advised her that the minimum penalty she could receive would be no jail time, a judgment for court costs, and three sentences of conditional discharge. The court did not admonish the defendant that she could be ordered to pay restitution.
The defendant was sentenced on July 14, 1999, to concurrent five-year prison terms. She was ordered to pay restitution and court costs. The court ordered the DOC to withhold 50% of her monthly prison income to pay for restitution and costs.
On October 7, 1999, the defendant filed a pro se post-conviction petition. Her counsel filed a motion to reconsider on November 28, 2000, while her post-conviction petition was still pending. In her motion to reconsider, the defendant argued that she would not have entered into a plea agreement if she had known that she would receive five-year rather than four-year concurrent sentences. The court denied her motion. On November 30, 2000, the defendant withdrew her post-conviction petition.
On December 29, 2000, the defendant filed a pro se notice of appeal, stating that she was appealing from "denial of [her] Post Conviction petition." Her attorney filed a Rule 604(d) certificate on January 26, 2001. On January 29, 2001, the defendant filed a notice of appeal from denial of her "Motion to Reconsider-Post Conviction Petition." Because the defendant had withdrawn her post-conviction petition prior to filing either notice of appeal, we consider her appeal to be from the trial court's denial of her motion to reconsider sentence.
The State argues that, under Wilk, we lack jurisdiction to consider the defendant's appeal because she did not comply with Rule 604(d) by (1) filing a motion to reconsider sentence when she should have filed a motion to withdraw her guilty plea, and (2) filing an untimely motion to reconsider.
The requirements for appealing from a judgment entered on a guilty plea are set forth in Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d). The rule states that:
"[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment. No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a negotiated plea of guilty is one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges then pending. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." 188 Ill. 2d R. 604(d).
In Wilk, 124 Ill. 2d 93, 529 N.E.2d 218, the Illinois Supreme Court emphasized that filing a Rule 604(d) motion is a condition precedent to an appeal from a guilty plea. In Wilk and its progeny, our supreme court has ruled that, with limited exceptions, where a defendant fails to comply with the requirements of Rule 604(d), an appellate court must dismiss the appeal. See, e.g., People v. Foster, 171 Ill. 2d 469, 665 N.E.2d 823 (1996); ...