Appeal from Circuit Court of McLean County No. 07CF1128 Honorable Charles G. Reynard, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
JUSTICE McCULLOUGH delivered the judgment of the court, with opinion Justice Steigmann concurred in the judgment and opinion.
Justice Cook specially concurred, with opinion.
¶ 1 In October 2007, the State charged defendant, Ronald Richard Blalock, with two counts of unlawful use of a weapon by a convicted felon (720 ILCS 5/24-1.1(a) (West 2006)) committed on October 17, 2007. In May 2008, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to one count in exchange for the State's dismissal of the second count and a recommendation of a four-year sentence cap. In November 2008, the trial court sentenced defendant to 30 months' probation, the first 12 months of which were intensive supervision that included 6 months in jail to be served on a periodic basis.
¶ 2 The State filed petitions to revoke defendant's probation in October 2009, April 2010, and June 2010. In May 2010, the trial court conducted a hearing on the State's first petition to revoke and found defendant in violation of probation. On July 8, 2010, the court resentenced defendant to 4 years' imprisonment, with credit for 183 days as time served. The court's supplemental sentencing judgment reincorporated fines and costs already ordered. On the State's motion, the court dismissed the second and third petitions for revocation of probation.
¶ 3 On August 10, 2010, defendant pro se filed a motion for reduction of sentence. On September 30, 2010, defense counsel filed a supplemental motion to reduce sentence. Following a December 2010 hearing, the trial court denied the motion to reconsider.
¶ 4 Defendant appeals, asserting (1) the McLean County circuit clerk lacked authority to impose the $10 drug-court and $15 children's-advocacy assessments; (2) the children's-advocacy-center fine is void because it was not authorized by statute when defendant committed his offense; and (3) he is entitled to a $5 per diem credit toward his fines for each day spent in pretrial custody (725 ILCS 5/110-14(a) (West 2006)).
¶ 5 The State asserts that the trial court lacked jurisdiction to hear defendant's postjudgment motion because it was untimely. Thus, the State contends this court lacks jurisdiction and must dismiss defendant's appeal. Because a reviewing court must first ascertain its jurisdiction before addressing the merits of an appeal, we first address the State's jurisdictional argument. People v. Smith, 2011 IL App (4th) 100430, ¶ 11, 960 N.E.2d 595.
¶ 6 In this case, the trial court resentenced defendant to four years' imprisonment for violating his probation on July 8, 2010. Thus, defendant had until Monday, August 9, 2010, to file a motion to reconsider his sentence or appeal his sentence order. See 5 ILCS 70/1.11 (West 2010) (providing if the last day of a time period falls on a Saturday or Sunday, the Saturday or Sunday is not included in the computation); see also People v. Allison, 356 Ill. App. 3d 248, 251, 825 N.E.2d 1217, 1220 (2005) (" 'the filing of a motion to reconsider sentence or disposition following a probation[-]revocation hearing is unnecessary before taking an appeal, [so] complying with the requirements of Rule 604(d) is likewise unnecessary' " (quoting In re J.E.M.Y., 289 Ill. App. 3d 389, 391, 682 N.E.2d 451, 452 (1997))). Generally, "[a] court will consider an incarcerated defendant's postplea motion timely filed if the defendant placed it in the prison mail system within the 30-day period, regardless of the date on which the clerk's office received or file-stamped it." Smith, 2011 IL App (4th) 100430, ¶ 13, 960 N.E.2d 595 (citing People v. Tlatenchi, 391 Ill. App. 3d 705, 710, 909 N.E.2d 198, 204 (2009)). However, pursuant to Illinois Supreme Court Rule 12(b)(3) (eff. Dec. 29, 2009), when a defendant relies upon the date of mailing as the date of filing for a postplea motion, proof of mailing must be provided as follows:
"[I]n case of service by mail ***, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail ***, stating the time and place of mailing ***, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid."
¶ 7 Here, the circuit court clerk's office file-stamped defendant's pro se motion on Tuesday, August 10, 2010. Thus, if the date the circuit clerk's office file-stamped the motion controls, defendant's motion is untimely, and this court lacks jurisdiction. The envelope in which defendant mailed his pro se motion shows a postage mark of August 6, 2010, a Friday. The record establishes defendant used a single sheet of paper to address the following three requirements: (1) sworn statement that the attached motion was true and correct in substance (located at top of paper), (2) notice of filing (located in middle of paper), and (3) affidavit of service (located at bottom of paper). The only notarization on this piece of paper containing the three requirements is located at the top of the paper directly under the sworn statement and above the notice of filing and is dated August 5, 2010, a Thursday. As mentioned previously, Rule 12(b)(3) requires that the date of mailing be proved by affidavit. "Our supreme court [has] emphasized 'an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.' " Smith, 2011 IL App (4th) 100430, ¶ 18, 960 N.E.2d 595 (quoting Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 214 (2002)).
¶ 8 Defendant acknowledges that this court recently dismissed an appeal for lack of jurisdiction under Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), finding that the defendant's motion for a new trial and motion to reduce sentence were not timely mailed because the affidavit of service and proof of service were not notarized. Smith, 2011 IL App (4th) 100430, ¶ 19, 960 N.E.2d 595. In dismissing for lack of jurisdiction, we found Tlatenchi, 391 Ill. App. 3d at 710, 909 N.E.2d at 204, persuasive. In Tlatenchi, the First District Appellate Court found that failure to notarize the proof of service filed with a motion or pleading rendered it insufficient to establish compliance with Rule 12(b)(3). Tlatenchi, 391 Ill. App. 3d at 716, 909 N.E.2d at 209. Defendant asserts that Tlatenchi was recently called into question by the Second District Appellate Court in People v. Hansen, 2011 IL App (2d) 081226, ¶ 15, 952 N.E.2d 82, which found in dicta that Rule 12(b)(3)'s affidavit requirement made it "virtually impossible for a pro se defendant to comply with the rule." However, in Smith, this court specifically disagreed with Hansen and found no reason to depart from the Tlatenchi requirement that proof of mailing must comply with Rule 12(b)(3). Smith, 2011 IL App (4th) 100430, ¶ 17, 960 N.E.2d 595.
¶ 9 Defendant further argues that this court need not rely on Smith or Tlatenchi to decide his case because the notice of motion for reduction of sentence, motion for reduction of sentence, and the sheet of paper containing the notarized sworn statement, notice of filing, and affidavit of service are stapled together in the record, suggesting that they were filed as one. Each sheet of paper bears the August 10, 2010, file stamp and each page is notated in the bottom left corner as "Form revised 11/1/01." The post date on the envelope these documents were allegedly mailed in is August 6, 2010. Thus, defendant asserts all these facts demonstrate that the documents were attached when mailed and were all placed in the prison mail system on August 5 or August 6, 2010. Further, defendant argues that any irregularity ...