People v. Jones ( 2004 )

JUSTICE SCHMIDT,

dissenting:

I respectfully dissent. As the majority sets forth, the defendant was sentenced on July 19, 2000. The defendant filed a motion to reconsider sentence (without moving to withdraw his guilty plea) on January 17, 2003, arguing only that his sentence was excessive. On January 13, 2003, the motion was denied as untimely.

The majority relies on People v. McKay, 282 Ill. App. 3d 108, 668 N.E.2d 580 (1996), for the proposition that we can consider the merits of defendant’s appeal. The McKay court found that a Rule 604(d) motion is not jurisdictional. McKay, 282 Ill. App. 3d at 111. However, as the supreme court has recently made clear in Flowers, a circuit court does not have jurisdiction to entertain an untimely Rule 604(d) motion. Flowers, 208 Ill. 2d at 306.

The supreme court made it plain that the power of the appellate court attaches only upon compliance with rules governing appeals, such as Rule 604(d). Flowers, 208 Ill. 2d at 308.

At the time of sentencing, the trial court clearly advised defendant of his right to appeal and of the steps he was required to take before an appeal could be filed. Defendant was represented by counsel. The transcript of proceedings indicates that defendant heard and understood the court’s admonishments under Supreme Court Rule 605 (145 Ill. 2d R. 605). Unlike the McKay defendant, defendant here was not taking psychotropic medications at the time of the plea and sentencing. Even assuming McKay is good law, it is distinguishable. There is no suggestion on the record that anyone, including defense counsel, doubted defendant’s fitness to enter his plea or understand the admonitions.

This was an untimely and improper Rule 604(d) motion. The only pleading filed with the trial court by defendant after conviction and sentencing was a motion to reduce sentence and that was filed more than two years after the sentencing. The trial court had no jurisdiction to hear it. The circuit court had no choice other than to deny the motion for lack of jurisdiction. Flowers, 208 Ill. 2d at 307. Because the trial court had no jurisdiction to consider defendant’s Rule 604(d) motion, the appellate court, in turn, has no authority to consider the merits of defendant’s appeal from the trial court’s judgment denying his motion. Flowers, 208 Ill. 2d at 306. I think our only course is to dismiss this appeal. See Flowers, 208 Ill. 2d at 307.

Therefore, I dissent.