People v. Simmons

164 Ill. App.3d 205 (1987) 517 N.E.2d 1106

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ALBERT SIMMONS, Defendant-Appellant.

No. 5-87-0588.

Illinois Appellate Court — Fifth District.

Opinion filed December 17, 1987.

Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.

No brief filed for the People.

Cause remanded.

JUSTICE CALVO delivered the opinion of the court:

The defendant, Albert Simmons, pleaded guilty to five counts of theft of service on January 25, 1986. He was sentenced to five years' imprisonment at that time. Defendant mailed a motion to withdraw his pleas of guilty pursuant to Supreme Court Rule 604(d) (107 Ill.2d R. 604(d)) on February 22, 1986. The motion was received by the circuit court on February 25, 1986. On July 16, 1987, the court dismissed the motion to withdraw on the basis that it was filed one day too late and was therefore untimely. On appeal, the only issue is whether the motion to withdraw the pleas was timely.

This court has examined the record on appeal and finds that the proof of service was dated February 21, 1986, and the envelope containing said motion has the Menard Correctional Center's mail stamp date of February 22, 1986. Therefore, the motion having been mailed within 30 days of sentencing was timely. See In re Marriage of Morse (1986), 143 Ill. App.3d 849, 493 N.E.2d 1088.

For the foregoing reasons, this cause is remanded to the circuit court of Williamson County with directions to vacate the order of dismissal, to consider the motion to withdraw the pleas of guilty and to take whatever action the circuit court deems necessary. It is further ordered that the clerk of this court issue the mandate instanter.

Remanded with directions.

HARRISON and WELCH, JJ., concur.