Appeal from the Circuit Court of Du Page County. No. 06-CM-4924 Honorable William I. Ferguson, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Justice Schostok concurred in the judgment and opinion.
Justice McLaren dissented, with opinion.
¶ 1 On March 14, 2007, defendant, Christopher B. Bailey, entered an open guilty plea to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days, with credit for time served. On October 7, 2010, defendant filed a motion to vacate his plea and sentence as being void. The State filed a response, arguing against the motion, but it did not challenge the timeliness of the motion. The trial court denied the motion on January 28, 2011. Defendant filed a notice of appeal on February 25, 2011, appealing the denial of his motion to vacate his plea and sentence. He raises the following issues: (1) whether the trial court had jurisdiction (and therefore this court has jurisdiction) to rule on his untimely motion to vacate, pursuant to the revestment doctrine, and (2) whether the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). The State responds that the trial court was not revested with jurisdiction and thus this court lacks jurisdiction. We agree with the State and dismiss the appeal.
¶ 3 The offense to which defendant pled guilty arose from consensual sex between the 17-year-old defendant and his 16-year-old girlfriend. See 720 ILCS 5/12-15(c) (West 2006). The State requested, among other things, that the trial court sentence defendant to two years of sex offender probation and order defendant to undergo a sex offender evaluation, to register as a sex offender, and to submit to HIV and STD testing. After the trial court sentenced defendant, an unidentified speaker, presumably either defense counsel or the prosecutor, asked: "Judge, is there any sentence regarding [sex offender] registration?" The judge replied: "No[,] *** I think my sentence was fair and appropriate based upon what's going on. He's going to be on mandatory supervised release on the parole anyway." The court then determined that defendant had been incarcerated since September 2006 and stated, "we have plenty of time to *** handle this another way." Defendant acknowledged that he had read a notice of his appeal rights, discussed those rights in great detail with his counsel, understood them, and had no questions about them. Defendant did not file any timely postjudgment motions following sentencing.
¶ 4 On October 7, 2010, more than 31/2 years after he was sentenced, defendant filed an untimely motion to vacate his plea and sentence. The motion alleged that his plea and sentence were void because a person convicted of criminal sexual abuse is statutorily required to register as a sex offender, and therefore the court did not have the authority to rule that defendant need not register as a sex offender. See 730 ILCS 150/2(B)(1), 7 (West 2006). Defendant's attorney did not file a certificate of compliance with Rule 604(d) with his motion to vacate the plea and sentence.
¶ 5 The State responded that (1) defendant's sentence was not void, because sex offender registration is mandatory and, because it takes effect by operation of law, it need not be specifically mentioned in sentencing; (2) the trial court did not order that defendant would not have to register as a sex offender; it merely did not mention registration in the sentence; and (3) even if defendant's sentence were void, the proper remedy would be to vacate only the sentence, not the plea. The State did not challenge the timeliness of defendant's motion to vacate, but simply denied that the trial court's admonishment that defendant was not required to register as a sex offender rendered his plea and sentence void.
¶ 6 The trial court denied defendant's motion on January 28, 2011, reasoning that the duties, responsibilities, and obligations of sex offender registration are predetermined by the statute and that the fact that a court does not order compliance as part of a sentence does not mean that the statute has no application. Defendant filed a notice of appeal on February 25, 2011, from the denial of his motion to vacate his plea and sentence. On appeal, defendant contends that the trial court had jurisdiction under the revestment doctrine (and therefore this court has jurisdiction), and that the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Rule 604(d).
¶ 9 "The timely filing of a notice of appeal is both jurisdictional and mandatory." Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009). Defendant appeals from a judgment entered on a guilty plea, and therefore Rule 604(d) governs the perfection of the appeal. Rule 604(d) requires the filing of a postplea motion within 30 days of the court's imposition of the defendant's sentence. If the postplea motion is denied, the defendant must file a notice of appeal from the judgment within the time set forth by Illinois Supreme Court Rule 606(b) (eff. Sept. 1, 2006), which is measured from the date of entry of the order denying the motion. Rule 606(b) requires that "[e]xcept as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion." Without the filing of a timely notice of appeal, an appellate court is without jurisdiction to entertain an appeal. People v. Kellerman, 342 Ill. App. 3d 1019, 1023 (2003).
¶ 10 The trial court sentenced defendant on March 14, 2007. See People v. Danenberger, 364 Ill. App. 3d 936, 939 (2006) (final judgment is entered in a criminal case when the defendant is sentenced). Under Rule 604(d), defendant had until April 14, 2007, to file a postplea motion. Thus, defendant's October 7, 2010, postplea motion was untimely. Because defendant's postplea motion was untimely, it did not toll the 30-day postjudgment period for filing a notice of appeal. Pursuant to Rule 606(b), defendant had to file his notice of appeal by April 14, 2007. Therefore, defendant's February 25, 2011, notice of appeal was untimely under Rule 606(b), and we lack jurisdiction.
¶ 11 Defendant concedes that his October 7, 2010, motion to vacate was untimely filed, but he nonetheless contends that the trial court was revested with jurisdiction when it heard argument on his untimely postplea motion. The State maintains that its participation at the hearing, arguing against the postplea motion, did not revest the trial court with jurisdiction.
¶ 12 Absent a timely postplea motion, a trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of the judgment; however, under the revestment doctrine, the parties may revest the trial court with jurisdiction under certain circumstances. People v. Minniti, 373 Ill. App. 3d 55, 65 (2007). Revestment occurs when the parties, (1) without objection, (2) actively participate (3) in further proceedings inconsistent with the merits of the prior judgment after the 30-day period has run. People v. Gibson, 403 Ill. App. 3d 942, 948 (2010). The State did not object to the timeliness of defendant's postplea motion and actively participated in the hearing on the motion. The issue thus is whether the parties' participation in the proceedings was inconsistent with the merits of the prior judgment.
¶ 13 Defendant argues that the State's participation, without objection, in the hearing on the motion indicated that the State did not view the prior judgment as final and binding and that therefore its participation in the hearing was inconsistent with the merits of the prior judgment. The State concedes that a line of cases from this court supports defendant's position, but it argues that in light of supreme court precedent we incorrectly applied the revestment doctrine. See People v. Flowers, 208 Ill. 2d 291 (2003); People v. Kaeding, 98 Ill. 2d 237 (1983); Sears v. Sears, 85 Ill. 2d 253 (1981). The State argues that under Flowers the doctrine does not apply to untimely Rule 604(b) postplea motions. Additionally, the State argues that under Kaeding and Sears its participation in the hearing on the motion was not inconsistent with the prior judgment, because it advocated that the trial court deny defendant's motion. According to the State, its conduct was consistent with the prior judgment and therefore did not revest the trial court with jurisdiction.
¶ 14 We begin with an historical review of the applicable case law. In Sears, the supreme court found untimely a husband's notice of appeal from the denial of his successive postjudgment motion challenging the distribution of marital assets, because the motion was filed more than 30 days after the judgment and the successive motion did not toll the filing period. Sears, 85 Ill. 2d at 259. The husband, nevertheless, argued that his notice of appeal was timely because his wife actively participated in the hearing on the second motion and thus revested the trial court with jurisdiction at that time. Sears, 85 Ill. 2d at 260. The court found the revestment doctrine inapplicable, stating:
"The hearing on [the husband's] motion did not concern the merits of the judgment; the participants did not ignore the judgment and start to retry the case, thereby implying by their conduct their consent to having the judgment set aside. On the contrary, the hearing was about whether the judgment should be set aside; and [the wife] insisted that it should ...