Appeal from Circuit Court of Champaign County No. 03CF2166 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
MODIFIED UPON DENIAL OF REHEARING
The Supreme Court of Illinois has remanded this cause to our court to address a jurisdictional question it raised with regard to defendant's notice of appeal. We address the supreme court's question and vacate our March 13, 2007, opinion.
On November 10, 2004, pursuant to a plea agreement, defendant, Edward J. Smith, pleaded guilty to possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c)(2) (West 2002)), and the trial court sentenced him to 10 years' imprisonment. After a January 31, 2005, hearing, the court denied defendant's amended motion to withdraw his guilty plea, and defendant appealed. In November 2005, this court affirmed the trial court's judgment. People v. Smith, No. 4-05-0104 (November 1, 2005) (unpublished order under Supreme Court Rule 23).
In February 2006, defendant filed a pro se pleading entitled "motion to correct sentence," in which he argued his two-year term of mandatory supervised release (MSR) (actually a three-year term (see 730 ILCS 5/5-8-1(d)(1) (West 2002))) was void because it was unconstitutional. Defendant requested the trial court to "encompass" his MSR term into his sentence. On 21, 2006, the court sua sponte denied the motion, noting the pleadings were "frivolous and patently without merit." The court also sent a letter to the warden of the prison where defendant was housed, informing the warden of its finding and noting section 3-6-3(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(d) (West Supp. 2003)) with regard to defendant's good-conduct credit.
On March 20, 2006, defendant filed a notice of appeal. The notice of appeal listed the date of judgment appealed as November 10, 2004, and labeled the nature of the order appealed as a "conviction." In a March 21, 2006, docket entry, the trial court directed the circuit clerk to prepare and file a notice of appeal and appointed OSAD to represent defendant. In a written order dated March 21, 2006, and filed March 23, 2006, the trial court appointed OSAD to represent defendant and ordered the circuit clerk to prepare a notice of appeal. On March 23, 2006, the circuit clerk filed a document certifying she sent a copy of the attached notice of appeal to various offices, including this court. A notice of appeal was not attached to the copy of the circuit clerk's certification in the appellate record, and this court's records indicate we only received defendant's pro se notice of appeal.
On appeal, defendant contended the trial court erred by finding his February 2006 "motion to correct sentence" was a "lawsuit" as defined by section 3-6-3(d)(2) of the Unified Code (730 ILCS 5/3-6-3(d)(2) (West Supp. 2003)). While this court always examines the record to verify our jurisdiction, we have normally, in the past, only expressly addressed our jurisdiction when raised by the parties or when we have lacked jurisdiction. Since defendant's appeal is in a criminal matter and the rules governing criminal appeals also apply to post-conviction proceedings (see 134 Ill. 2d R. 651(d)), this court believed it had jurisdiction under Supreme Court Rule 606 (210 Ill. 2d R. 606), which only requires substantial compliance with the form notice set forth in subsection (d) of that rule (210 Ill. 2d R. 606(d)). Moreover, we note the facts of this case clearly indicate what order the pro se defendant was appealing, and the State, as appellee, has never made a claim to the contrary.
Thus, we entered an opinion that found defendant's motion to correct sentence was a post-conviction petition, rejected defendant's "lawsuit" argument, and affirmed the trial court's dismissal. People v. Smith, 371 Ill. App. 3d 817, 820-21, 867 N.E.2d 1150, 1153-54 (2007).
Defendant filed a petition for leave to appeal to the Supreme Court of Illinois, which that court granted. People v. Smith, 224 Ill. 2d 589, 871 N.E.2d 60 (2007). Citing Supreme Court Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)), the supreme court found defendant's March 20, 2006, pro se notice of appeal was deficient and did not confer jurisdiction on this court to review defendant's appellate contentions. People v. Smith, 228 Ill. 2d 95, 104-05, 885 N.E.2d 1053, 1058-59 (2008). The court further noted that if defendant had filed an amended notice of appeal under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)), the jurisdictional defect might have been corrected and the appellate court might have acquired jurisdiction. Smith, 228 Ill. 2d at 105, 885 N.E.2d at 1059. Thus, the supreme court remanded the cause to this court to consider the jurisdictional question it raised regarding defendant's notice of appeal. Smith, 228 Ill. 2d at 105-06, 885 N.E.2d at 1059. On March 24, 2008, the supreme court denied a petition for rehearing. We now address the supreme court's question.
A. Motion Taken with the Case
On remand, defendant filed a motion to order the trial court to amend the notice of appeal nunc pro tunc to reflect the exact nature and date of the appealed order. In the alternative, defendant requested this ...