People v. Smith ( 2008 )

NO. 4-06-0274
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
EDWARD J. SMITH, ) No. 03CF2166
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE TURNER delivered the opinion of the court:
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.
I. BACKGROUND
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0104 (November 1, 2005) (unpublished order under Supreme Court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
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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 postconviction
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 postconviction petition, rejected
defendant's "lawsuit" argument, and affirmed the trial court's
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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.
II. ANALYSIS
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
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exact nature and date of the appealed order. In the alternative,
defendant requested this court to allow him to brief the issue of
jurisdiction.
Given the procedural posture of this case, we decline to
entertain defendant's motion and thus dismiss it. First, we note
defendant raised similar arguments in his petition for rehearing in
the supreme court, and the supreme court denied the petition.
Moreover, the supreme court remanded the cause with specific
instructions to ascertain whether an amended notice of appeal was
filed and did not instruct us to entertain a motion to cure the
defect it found. Further, while we originally concluded this court
had jurisdiction under Rule 606, the supreme court's analysis cites
Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)) and cases that address Rule
303(b)(2). See Smith, 228 Ill. 2d at 104-05, 885 N.E.2d at 1058-
59. Thus, we do not construe the supreme court's opinion as
authorizing us to conclude we were vested with jurisdiction under
Rule 606.
B. Amendment
As stated, the supreme court has remanded the cause for an
answer to a very specific question, whether defendant amended his
notice of appeal under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)).
The record on appeal contains only one notice of appeal, which is
defendant's pro se notice of appeal.
We do note that, on the day after defendant filed his
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March 20, 2006, pro se notice of appeal, the trial court ordered the
circuit clerk to prepare and file a notice of appeal on defendant's
behalf. Under Rule 303(a)(1) (210 Ill. 2d R. 303(a)(1)), defendant
had until March 23, 2006, to file a timely notice of appeal. Even if
the circuit clerk had filed a notice of appeal but not designated it
as an amended notice, we could have regarded it as such since, under
Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)), an appellant may amend the
notice of appeal without leave of court within the period for filing
the notice of appeal. See Hammond v. Firefighters Pension Fund, 369
Ill. App. 3d 294, 302, 859 N.E.2d 1094, 1100 (2006). However,
neither the record on appeal nor our court file contains a notice of
appeal prepared by the circuit clerk. Thus, we find an amended
notice of appeal was not filed in this case.
Accordingly, based on the supreme court's opinion, we
lacked jurisdiction to entertain defendant's appeal from the February
16, 2006, summary dismissal of his motion to correct sentence, and
our prior opinion should be vacated.
III. CONCLUSION
For the reasons stated, we find defendant did not file an
amended notice of appeal. Thus, under the supreme court's decision
in Smith, 228 Ill. 2d at 106, 885 N.E.2d at 1059, our March 13,
2007, opinion addressing defendant's appeal is vacated for lack of
jurisdiction.
Question answered and opinion vacated.
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APPLETON, P.J., and McCULLOUGH, J., concur.
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