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People v. Stroud

August 19, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BENNIE STROUD, DEFENDANT-APPELLANT.



Kankakee County, Illinois No. 97--CF--621 and No. 98--CF--374 Honorable Kathy Bradshaw-Elliott Judge, Presiding

The opinion of the court was delivered by: Presiding Justice Lytton

UNPUBLISHED

The defendant, Bennie Stroud, pled guilty to possession of a stolen vehicle (625 ILCS 5/4--103(a)(1) (West 1996)) (No. 97--CF--621) via closed circuit television and was sentenced to a probationary term of two years. While on probation, the defendant was found guilty of a subsequent offense (No. 98--CF--374) and his probation was revoked. The trial court sentenced the defendant to seven years in prison on each conviction. The defendant's direct appeal was dismissed for lack of jurisdiction (People v. Stroud, No. 3--98--0981 (consolidated with No. 3--98--0982) (2000) (unpublished order under Supreme Court Rule 23)).

The defendant filed a post-conviction petition which was dismissed. The defendant now appeals from that dismissal, arguing that his plea of guilty in case No. 97--CF--621 should be vacated because it was entered over closed circuit television. He also contends that his sentence in case No. 98--CF--374 should be vacated and remanded for resentencing. We vacate the conviction in case No. 97--CF--621, vacate the sentence in case No. 98--CF--374 and remand both causes for further proceedings.

FACTS

On March 23, 1998, the defendant appeared via closed circuit television and pled guilty to the charge of possession of a stolen motor vehicle (No. 97--CF--621). Pursuant to agreement, he was sentenced to two years' probation. The trial court admonished the defendant of his appellate rights. He did not appeal his conviction or sentence.

On July 1, 1998, the State filed a petition to revoke probation, alleging that the defendant violated his probation by committing another offense. Subsequently, the defendant was found guilty of unlawful possession of a controlled substance (720 ILCS 570/402 (West 1998)) (No. 98--CF--374) and his probation in case No. 97--CF--621 was revoked. The trial court sentenced the defendant to seven years' imprisonment for each offense. Based on his prior felony conviction in case No. 97--CF--621, the defendant was not eligible for probation in case No. 98--CF--374.

On direct appeal, the defendant claimed that his guilty plea in case No. 97--CF--621 should be vacated since he was not physically present in the courtroom when the plea was entered. We dismissed the appeal for lack of subject matter jurisdiction because the defendant did not file a timely motion to withdraw the plea. Stroud, No. 3--98--0981 (consolidated with No. 3--98--0982).

On November 22, 2000, the defendant filed a timely post-conviction petition, again arguing that his guilty plea should be vacated because the trial court conducted the proceeding via closed circuit television rather than in person. He also asked that his sentence in case No. 98--CF--374 be vacated and remanded for resentencing. The State moved to dismiss the petition because the defendant failed to file a timely motion to withdraw his plea pursuant to Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d). The trial court agreed and the petition was dismissed.

ANALYSIS

I. Closed Circuit Television Guilty Plea (No. 97-CF-621)

A. Waiver

On appeal, the defendant argues that the trial court erred in dismissing his post-conviction petition because he failed to file a timely postplea motion. The State claims that the defendant waived review by failing to file a motion to withdraw his guilty plea pursuant to Supreme Court Rule 604(d).

The State's contention that the defendant cannot challenge his guilty plea on collateral review is misplaced. Rule 604(d) provides that no appeal from a judgment entered upon a guilty plea shall be taken unless the defendant files a motion to withdraw his plea within 30 days of that judgment. 188 Ill. 2d R. 604(d). A petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2000)) is not a direct appeal; it is a collateral attack on a prior judgment. This court has consistently held that the direct appeal requirements of Rule 604(d) do not apply to post-conviction proceedings. People v. Stein, 255 Ill. App. 3d 847, 625 N.E.2d 1151 (1993); People v. Brumas, 142 Ill. App. 3d 178, 491 N.E.2d 773 (1986); see also People v. ...


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