NO. 4-06-0239 Filed 12/28/07

IN THE APPELLATE COURT 

OF ILLINOIS

FOURTH DISTRICT

In re: JUSTIN L.V., a MINOR, ) Appeal from 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of

Petitioner-Appellee, ) Livingston County

v. ) No. 05JD66

JUSTIN L.V., )

Respondent-Appellant. ) Honorable

) Jennifer Bauknecht,

) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

Respondent, Justin L.V., a minor, admitted he engaged

in certain criminal conduct. As a result, the trial court adjudicated him a delinquent minor and ordered him committed to the

Illinois Department of Corrections, Juvenile Division (JDOC). 

Within 60 days of entering its order of commitment, the court

reviewed respondent's progress and determined that respondent

should remain committed. Respondent appeals. We dismiss in part

and affirm in part.

I. BACKGROUND

On August 18, 2005, the State filed a petition for

adjudication of wardship, requesting that respondent, age 16, be

adjudicated a delinquent minor pursuant to section 5-105(3) of

the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/5-
- 2 -

105(3) (West 2004)). The State alleged that between August 13,

2005, and August 15, 2005, respondent committed the offenses of

unlawful possession of a stolen vehicle in two counts (625 ILCS

5/4-103(a)(1) (West 2004)) and the offense of criminal damage to

property (720 ILCS 5/21-1(1)(a) (West 2004)).

On August 24, 2005, the trial court entered an order

for respondent's detention in the McLean County Juvenile Detention Center for four days until respondent's seventeenth birthday, at which time he was transferred to the Livingston County

jail until his arraignment on September 13, 2005. At arraignment, the State made an oral motion to amend the petition to add

seven counts, which alleged respondent committed seven additional

offenses between June 2005 and August 2005. Specifically, the

State alleged respondent committed three counts of criminal trespass to a vehicle (720 ILCS 5/21-2 (West 2004)), two additional

counts of criminal damage to property (720 ILCS 5/21-1(1)(a)

(West 2004)), one count of burglary (720 ILCS 5/19-1(a) (West

2004)), and one count of unlawful possession of cannabis (720

ILCS 550/4(a) (West 2004)). The trial court allowed the State's

motion.

Respondent admitted each allegation except one count of

criminal damage to property to which he pleaded not guilty. The

trial court accepted the factual basis for the remaining counts,
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found respondent's admissions were made knowingly and

voluntarily, and adjudicated respondent a delinquent minor. The

court entered a home-confinement order pending sentencing. At an

October 11, 2005, status hearing, respondent admitted the remaining count of criminal damage to property. After considering the

factual basis of that charge, the trial court accepted respondent's admission.

On October 25, 2005, the trial court held a sentencing

hearing. After hearing recommendations from the State and from

respondent, the court stated that it was sentencing respondent to

60 days in JDOC. The court further stated that in 60 days, it

would consider vacating the JDOC commitment and placing respondent "on some kind of probation." However, respondent's counsel

advised the court that it was not authorized to sentence respondent to JDOC for a definite period of time:

MR. MASON [(respondent's counsel)]:

Actually I don't think you can sentence him

to a specific time. You sentence him to DOC

to return on December 20.

THE COURT: All right.

MR. MASON: At which time you can vacate.

THE COURT: Vacate that order or I can

send him back depending on how things are
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going.

* * *

THE COURT: Since I'm setting this for

review, should I advise him of his appeal

rights now? I'm not sure how that works.

MR. MASON: Yeah[, p]robably[,] because

you wouldn't resentence him. You would either vacate the sentence or return him."

The court also explained its intention to respondent:

"THE COURT: I will tell you this. I

will bring it back in 60 days. I'm not going

to argue with you about it. [Sixty] days is

enough time for you to start getting help on

your substance abuse, to look into your education and think about what your actions have

been. And if what you are telling me is

true, you can walk out of that prison in 60

days on that date; and you can put in place

things that are going to keep you on the

right track.

* * *

All right. So that's going to be the

sentence."
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The written order (1) provided that respondent's commitment was necessary to protect the public, (2) directed the

sheriff to transport respondent to the appropriate reception

center, and (3) required respondent to return to court on December 20, 2005, "for further court proceedings." The trial court

also advised respondent of his right to appeal and admonished him

pursuant to Supreme Court Rule 605. 210 Ill. 2d R. 605. Neither

the order of commitment entered by the court nor the docket entry

entered following the hearing specified a term of commitment. 

Between October 26, 2005, and November 10, 2005, respondent was housed at the Illinois Youth Center in St. Charles. 

He was transferred to the Illinois Youth Center in Harrisburg on

November 10, 2005, to begin individualized treatment. According

to the warden and the counselor at St. Charles, in letters presented to the trial court at the December 20, 2005, hearing,

respondent was "cooperative," "exhibit[ed] a positive attitude,"

and was "a positive leader." However, after arriving at Harrisburg, respondent's behavior was less positive. On November 11,

2005, respondent received a "major disciplinary report" for filing a false claim that his roommate had sexually assaulted him. 

As punishment, respondent received seven days in confinement. In

a December 5, 2005, report, the warden and the counselor at Harrisburg indicated that respondent's "weekly level performance has
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been level B and C," with level A being the highest. In addition

to these reports, the State reported to the court at the December

20, 2005, hearing that respondent had received another disciplinary ticket on December 12, 2005, for allegedly stealing three

books from a teacher. 

At the December hearing, respondent's counsel argued

that the October commitment to JDOC be vacated, stating:

"MR. MASON: *** [W]e would recommend

that [Justin] be released on probation. ***

*** [W]e would request that the [c]ourt

vacate the commitment to [JDOC] and release

him to his parents on a term of probation

with a term of home confinement if the

[c]ourt believes that would be reasonable to

start things off with." 

However, the State argued for respondent’s continued

incarceration, emphasizing respondent's negative performance:

"MR SPRAY [(Court Services)]: [The

counselor] was I guess quite amazed that

someone in Justin’s position would have two

[disciplinary tickets] knowing that he’s

going before a judge. ***

He was pretty surprised that he had that
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type of incident reports written up on him

knowing full well the [c]ourt was going to

take that into consideration in whether or

not you were to vacate his commitment order

or send him back to [JDOC].

* * *

MR. SANBORN [(Assistant State’s

Attorney)]: *** [I]t’s the State’s

recommendation that [Justin] stay in [JDOC]. 

If we can’t trust him not to misbehave when

it counts, then society is not protected if

[the court] would allow him to go home

today."

The trial court expressed its dissatisfaction with

respondent's performance in JDOC and indicated that it would not

be vacating the October sentencing order:

"THE COURT: All right. Based upon the

reports from the Illinois [JDOC], taking into

consideration the nature of the original

offenses, and coupled with the fact, Justin,

that you've not been able to maintain

positive conduct even for a short period of

time, I don't think it would be appropriate
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to vacate the order today.

I don't understand what you were

thinking. I don't understand what you were

thinking with this. It's almost like you

were asking me not to vacate the order. 

That's just completely unacceptable conduct

to accuse somebody of something like that.

***

So I don't think I'm going to vacate

that order today. ***

* * *

THE COURT: My question, Mr. Mason, is do

I set this for another status? My

understanding is that if I commit him to

[JDOC] they then release him when they think

he is ready to be released.

MR. MASON: That is correct.

THE COURT: And I do nothing further at

this point or I set it for a status?

MR. MASON: No. You don’t need to do

anything. If your decision is to commit him

back to [JDOC], that’s it. You don’t need to

have any further court reviews.
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THE COURT: That is my decision."

The docket entry following the December hearing

indicates that the trial court "decline[d] to vacate" the October

25, 2005, sentencing order, and respondent was returned to JDOC

custody.

On January 19, 2006, respondent filed a motion to

reconsider sentence, alleging (1) the sentence was against the

manifest weight of the evidence, (2) the sentence was not in

respondent's best interest, and (3) the social-investigation

report indicated that respondent would benefit from intensive

outpatient substance-abuse treatment. On March 14, 2006, the

trial court denied respondent's motion, indicating, "I have

listened carefully to Mr. Mason. I have reviewed his motion, and

I have reviewed the case file. I have not heard anything today

that would suggest that the [c]ourt's sentence on December 20[ ]

was the wrong sentence." This appeal followed.

II. ANALYSIS

On appeal, respondent claims the trial court was not

authorized under the Juvenile Act to impose a sentence of 60 days

in JDOC for "evaluation." He further claims the indeterminate

term in JDOC imposed following the initial 60 days violated

double jeopardy. In addition, respondent argues that the case

must be remanded because respondent's trial counsel failed to
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file a certificate as required by Supreme Court Rule 604(d) (210

Ill. 2d R. 604(d)) and that respondent is entitled to credit for

time served. We dismiss in part for lack of jurisdiction and

affirm in part.

A. This Court Has Jurisdiction Over Respondent’s Appeal

From the December 20, 2005, Order

Initially, the State claims respondent's appeal should

be dismissed for lack of appellate jurisdiction because the

October 25, 2005, order committing respondent to JDOC was the

only final order for purposes of appeal in this case. We

disagree.

1. Respondent’s Appeal Arises From His

December 20, 2005, Hearing

Except where an Illinois Supreme Court rule provides

for an interlocutory appeal, this court has jurisdiction to

review only final judgments. In re Sean A., 349 Ill. App. 3d

964, 968, 812 N.E.2d 669, 672 (2004). Supreme Court Rule 660(a)

provides that "[a]ppeals from final judgments in delinquent minor

proceedings, except as otherwise specifically provided, shall be

governed by the rules applicable to criminal cases." 210 Ill.

2d, R. 660(a). Generally, the dispositional order in a juvenile

delinquency proceeding will be considered a final order. In re

J.N., 91 Ill. 2d 122, 127, 435 N.E.2d 473, 475 (1982). We do

agree with the State that the October 25, 2005, dispositional
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order was a final order for purposes of appeal. We also agree

that respondent failed to timely appeal that order. 

The State cites In re J.T., 221 Ill. 2d 338, 345-46,

851 N.E.2d 1, 5-6 (2006), for the proposition that failure to

file timely notice of appeal from a sentencing order in a

juvenile delinquency proceeding divests the appellate court of

jurisdiction to consider any issue arising from that order. In

that case, the respondent pleaded guilty to criminal damage to

property and was sentenced to probation. He filed no appeal from

that sentence. After the respondent was found to have violated

his probation, the trial court ordered the respondent committed

to JDOC. The respondent appealed that decision, but included in

his appeal, inter alia, an argument that his case be remanded

because the trial court failed to properly advise the respondent

of his appeal rights when the respondent originally pleaded

guilty. The supreme court held that the appellate court lacked

jurisdiction to consider that claim, because the respondent

failed to appeal the improper admonishment within the specified

period for appeal. However, in J.T., the respondent was

attempting to circumvent his earlier inaction by appealing the

original sentencing order at a later date. In this case, unlike

J.T., respondent’s appeal arises not from his sentencing order,

entered October 25, 2005, but from the trial court's December 20,
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2005, order, and his appeal of that order is timely. The

jurisdiction of this court, therefore, is not precluded by J.T.,

because this appeal is based on the December order.

2. Respondent’s Counsel Made a Proper Oral Motion

To Vacate JDOC’s Guardianship of Respondent at the

December 2005 Hearing

Section 5-750(3) of the Juvenile Act allows a court to

commit a minor to JDOC for "an indeterminate term." 705 ILCS

405/5-750(3) (West 2004). When doing so, the court "shall

appoint the Assistant Director of Corrections, Juvenile Division,

legal custodian of the minor." 705 ILCS 405/5-750(4) (West

2004). The Juvenile Act also provides for court review of a

delinquent minor in several ways:

"(1) The court may require any legal

custodian or guardian of the person appointed

under this Act to report periodically to the

court or may cite him or her into court and

require him or her, or his or her agency, to

make a full and accurate report of his or her

or its doings in behalf of the minor. The

legal custodian or guardian, within 10 days

after the citation, shall make the report,

either in writing verified by affidavit or

orally under oath in open court, or otherwise
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as the court directs. Upon the hearing of the

report the court may remove the legal

custodian or guardian and appoint another in

his or her stead or restore the minor to the

custody of his or her parents or former

guardian or legal custodian.

(2) A guardian or legal custodian

appointed by the court under this Act shall

file updated case plans with the court every

6 months. Every agency which has guardianship

of a child shall file a supplemental petition

for court review, or review by an

administrative body appointed or approved by

the court and further order within 18 months

of the sentencing order and each 18 months

thereafter. The petition shall state facts

relative to the child's present condition of

physical, mental[,] and emotional health as

well as facts relative to his or her present

custodial or foster care. The petition shall

be set for hearing and the clerk shall mail

10 days notice of the hearing by certified

mail, return receipt requested, to the person
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or agency having the physical custody of the

child, the minor and other interested parties

unless a written waiver of notice is filed

with the petition.

Rights of wards of the court under this

Act are enforceable against any public agency

by complaints for relief by mandamus filed in

any proceedings brought under this Act.

(3) The minor or any person interested

in the minor may apply to the court for a

change in custody of the minor and the

appointment of a new custodian or guardian of

the person or for the restoration of the

minor to the custody of his or her parents or

former guardian or custodian. In the event

that the minor has attained 18 years of age

and the guardian or custodian petitions the

court for an order terminating his or her

guardianship or custody, guardianship or

legal custody shall terminate automatically

30 days after the receipt of the petition

unless the court orders otherwise. No legal

custodian or guardian of the person may be
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removed without his or her consent until

given notice and an opportunity to be heard

by the court." 705 ILCS 405/5-745 (West

2004).

Section 5-745 appears in part seven of the Juvenile

Act, entitled, "Proceedings After Trial, Sentencing," just before

the above-referenced section 5-750, which defines commitment of a

juvenile to JDOC. Section 5-745's provisions permitting periodic

court reviews, updated case plans, and custodial changes were

clearly intended to apply to cases, such as the case at bar, in

which the minor has been adjudicated delinquent and committed to

JDOC.

In the case sub judice, respondent’s counsel did not

file a written motion to vacate JDOC’s guardianship of Justin. 

Instead, the trial court, sua sponte, conducted a review hearing

as permitted by section 5-745(1) of the Juvenile Act to evaluate

respondent’s progress in JDOC. At that hearing, respondent’s

counsel addressed the court, stating, "[W]e would request that

the [c]ourt vacate the commitment to [JDOC] and release him to

his parents on a term of probation with a term of home

confinement if the [c]ourt believes that would be reasonable to

start things off with."

Respondent’s counsel’s request must be construed as a
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motion to vacate the guardianship of JDOC. Despite the fact that

counsel failed to use the word "motion," he clearly requested

that the trial court vacate respondent's commitment and wardship.

Further, the State not only failed to object to the form of that

request, but the State presented arguments on the merits of these

issues as well, emphasizing reports from Justin’s counselors in

JDOC and arguing that respondent should "stay in JDOC."

Notably, section 5-745(3) contains no requirement as to

the form or substance of the application for a change in custody,

nor does the section indicate what standard the trial court

should apply in deciding whether to grant such an application.

When a court appoints JDOC the guardian of the minor following

delinquency proceedings, as the trial court did here, section 5-

745(3), therefore, contemplates that the minor or any interested

person may move the court to return guardianship to his parents

and, necessarily, vacate JDOC’s guardianship of the minor.

Moreover, a motion need not always be made in writing

to be effective. See, e.g., People v. Davis, 356 Ill. App. 3d

725, 731, 826 N.E.2d 994 (2005) (considering merits of appeal

from the defendant’s oral motion to reconsider sentence after

determination that State had waived objection to motion not being

in writing); People v. Enoch, 122 Ill. 2d 176, 188, 522 N.E.2d

1124, 1130-31 (1988) (finding that a motion for a new trial need
- 17 -

not be in writing where the State does not object to the oral

motion); People v. Thomas, 34 Ill. App. 3d 1002, 1006-07, 341

N.E.2d 178, 182 (1976) (finding that juvenile’s motion to

transfer trial to adult criminal court may be made orally). 

Further, the court need not adhere to strict rules of procedure

in determining whether a motion has been made. See Thomas, 34

Ill. App. 3d at 1007, 341 N.E.2d at 182 (the defendant’s

conviction would not be reversed on the "purely formal basis"

that he failed to use the word "motion" in his application for

transfer to adult criminal court); Vogelsang v. Credit Life

Insurance Co., 119 Ill. App. 2d 67, 72-73, 255 N.E.2d 479, 482

(1970) (formal procedures for filing a written motion will be

waived where there is no objection and the court appears to have

considered the merits of the motion). Therefore, in People v.

Todd, 249 Ill. App. 3d 835, 840, 619 N.E.2d 1353, 1357 (1993),

the court held that where a defendant made any statement that

could be construed as a motion for a new trial, and the State

failed to object to the statement’s not being in writing, the

reviewing court should consider the issue preserved for appeal. 

Similarly, in People v. Sanchez, 329 Ill. App. 3d 59, 66, 768

N.E.2d 99, 105 (2002), the court held that the defendant’s

statements at sentencing that his attorney had failed to

investigate his case should have been construed by the trial
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court as a motion for new counsel. 

At the December 20, 2005, hearing, the State failed to

object to the form of respondent’s motion, and therefore, the

State has forfeited any such objection. Additionally, in his

motion to reconsider sentence and vacate commitment to JDOC,

filed January 19, 2006, respondent indicated that, "[o]n December

20, 2005, the minor moved the [c]ourt to vacate the commitment to

[JDOC]. The [c]ourt denied said motion and continued the

commitment to [JDOC]." The State similarly voiced no objection

to respondent's characterization of the December 20, 2005,

proceedings. Finally, the trial court clearly considered the

issue on its merits. At the December hearing, the court

concluded, "I don’t think it would be appropriate to vacate the

order today," and the record of that hearing indicates that "the

court decline[d] to vacate the order."

Although we have concluded that the respondent minor

did move to vacate JDOC guardianship, we encourage counsel for

respondent minors in situations such as this to avoid any doubt

as to the procedural adequacy of their request for a change of

custody. They should file a written motion expressly invoking

section 5-745(3), when the change of custody is sought, either at

the time of sentencing or after the sentencing to JDOC.

3. The Court’s Denial of the Motion To Vacate Guardianship
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Is a Final Order For Purposes of Appeal

The State also argues that the denial of the motion to

vacate JDOC's guardianship of respondent is not a final order for

purposes of appeal, relying on In re Brandon S., 331 Ill. App. 3d

757, 760, 771 N.E.2d 1117, 1120 (2002), a child-dependency case. 

We disagree, and we decline to follow Brandon S. here.

In Brandon S., the respondents appealed the denial of

their motion for return home of their minor children or, in the

alternative, unsupervised visitation with the children. Brandon

S., 331 Ill. App. 3d at 759, 771 N.E.2d at 1119. While

acknowledging that the trial court retained jurisdiction to

modify its disposition vacate its previous order, the First

District held that the trial court's denial of such a

modification "did not change the status quo" and was therefore

not appealable. Brandon S., 331 Ill. App. 3d at 761, 771 N.E.2d

at 1120. The court noted, however, that the respondents' motion,

"in essence, [']jumped the gun['] on the next scheduled

permanency hearing and the order resulting therefrom could be

analogized to an order resulting from a permanency hearing,"

which is not appealable. Brandon S., 331 Ill. App. 3d at 761,

771 N.E.2d at 1121. 

Two years after Brandon S., however, in In re Tr. O.,

362 Ill. App. 3d 860, 865, 840 N.E.2d 1263-1267 (2005), the
- 20 -

Second District held it had jurisdiction to review the trial

court’s denial of a motion to vacate private guardianship. 

There, after finding that Tr. O. was neglected or abused, the

trial court awarded custody of the child to foster parents and

entered an order closing Tr. O.’s case. Tr. O., 362 Ill. App. 3d

at 862, 840 N.E.2d at 1265. Two years later, after the time for

appealing the custody order had run, the child’s biological

mother filed a supplemental petition to reinstate wardship and a

motion to vacate private guardianship. Tr. O., 362 Ill. App. 3d

at 863, 840 N.E.2d at 1266. The trial court dismissed the

petition for lack of subject-matter jurisdiction. Tr. O., 362

Ill. App. 3d 862, 840 N.E.2d at 1266. On appeal, the court

rejected the argument that an order denying a motion to vacate

private guardianship was not a final order. The court relied on

In re Faith B., 216 Ill. 2d 1, 832 N.E.2d 152 (2005), in which

the supreme court held that an order establishing a private

guardianship was final for purposes of appeal, even though

permanency orders generally are not. The Tr. O. court held that

the fact that the dismissal of the petition to vacate merely

maintained the status quo was "immaterial" for the purpose of the

court’s jurisdiction on appeal. Tr. O., 362 Ill. App. 3d at 864,

840 N.E.2d at 1266.

The Tr. O. court enumerated four factors that the
- 21 -

supreme court had considered relevant in Faith B.: (1) the trial

court believed it was entering a final order; (2) the trial court

declined to set any further hearings; (3) the trial court had

determined that the disposition was the only acceptable

arrangement; and (4) the guardianship represented the status quo

at the time. Tr. O., 362 Ill. App. 3d at 864-65, 840 N.E.2d at

1266.

The instant case is more analogous to Tr. O. and Faith

B. than Brandon S. The factors relied on by the court in Tr. O.

apply with equal force in our case. First, the trial court

clearly believed it was entering a final order at the December

review hearing, as evidenced by this exchange between the court

and respondent’s counsel:

"THE COURT: My question, Mr. Mason, is

do I set this for another status? My

understanding is that if I commit him to

[JDOC] they then release him when they think

he is ready to be released.

MR. MASON: That is correct.

THE COURT: And I do nothing further at

this point or I set it for a status?

MR. MASON: No. You don’t need to do

anything. If your decision is to commit him
- 22 -

back to [JDOC], that’s it. You don’t need to

have any further court reviews.

THE COURT: That is my decision."

Second, the trial court declined to set any further

hearings for review. Unlike the order at issue in Brandon S.,

the court's order here was not merely an intermediate step along

a continuing path; respondent here is not "jumping the gun" on

some later scheduled chance for review in the court. Instead, as

the court made clear, the December 20, 2005, order meant that

respondent could be released from JDOC only at such time as JDOC

determined, and the court had nothing more to say on the matter.

Third, the trial court clearly felt that declining to

vacate its prior order represented the only acceptable

disposition, stating:

"THE COURT: *** Based upon the reports

from the Illinois [JDOC], taking into

consideration the nature of the original

offenses, and coupled with the fact, Justin,

that you’ve not been able to maintain

positive conduct even for a short period of

time, I don’t think it would be appropriate

to vacate the order today.

I don’t understand what you were
- 23 -

thinking. I don’t understand what you were

thinking with this. It’s almost like you

were asking me not to vacate the order."

Fourth, as in Tr. O., the trial court’s denial of the

motion to vacate guardianship represented maintaining the status

quo at the time. At his October sentencing, respondent was

committed to JDOC for an indeterminate term. When his motion to

vacate JDOC’s guardianship was denied at the December review

hearing, the court’s October order was left in place, and

respondent returned to JDOC. 

A trial court's ruling upon a request for a change of

custody may clarify the situation by expressly stating, on the

record, the court's intent that its order is final and by

immediately advising the respondent minor of the minor's right to

appeal the ruling. Therefore, the court's December 2005 order

denying the motion to vacate the commitment to JDOC was a final

order, and this court has jurisdiction to consider the appeal. 

However, because respondent did not timely appeal the October 25,

2005, sentencing order, this court lacks jurisdiction to consider

"any issues arising from either his guilty plea or his sentence."

J.T., 221 Ill. 2d at 346-47, 851 N.E.2d at 6. We therefore

confine our review to those issues properly arising from the

December 20, 2005, order denying respondent’s motion to vacate
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JDOC’s guardianship of respondent.

B. Respondent's Sentence is Authorized by the

Juvenile Courts Act

Respondent claims that the trial court’s December 20,

2005, order violated the prohibition against double jeopardy by

resentencing respondent for the same acts for which respondent

was sentenced in October. As noted above, this court lacks

jurisdiction to consider issues arising from the October order. 

However, to fully address respondent’s double-jeopardy claim, we

must briefly address respondent's additional claim that the trial

court’s October sentencing order was not authorized by the

Juvenile Act. We disagree with both of respondent’s contentions.

Respondent argues that the trial court's October 25,

2005, order sentenced respondent to a 60-day period of

"evaluation," a sentence not authorized by the Juvenile Act. 

Respondent points out that the Juvenile Act strictly limits the

options available to the court in sentencing a minor who is over

the age of 13 and adjudged delinquent. Section 5-710 of the

Juvenile Act enumerates these options, which include probation,

conditional discharge, substance-abuse assessment and treatment,

detention for a period not to exceed 30 days, and commitment to

JDOC. 705 ILCS 405/5-710(1) (West 2004). Section 5-750, however,

provides that "the commitment of a delinquent to the [JDOC] shall
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be for an indeterminate term," except where the minor is adjudged

delinquent for the offense of first degree murder. 705 ILCS

405/5-750(3) (West 2004).

Respondent relies on the trial court's statements, made

at the October hearing, that it was "sentencing [respondent] to

60 days," to argue that the sentence imposed by the court did not

comply with section 5-750's condition that any commitment to JDOC

be for an indeterminate term. However, in the remainder of that

hearing, respondent's counsel informed the court that the court

could sentence respondent only for an indeterminate term. As

previously discussed, the court then corrected its previous

statements and indicated that it was sentencing respondent for an

indeterminate term, to be returned to court on December 20, 2005.

This intent is reflected in the written orders following the

hearing. Neither the written entry following the October hearing

nor the court's written order of commitment mentions a 60-day

"sentence." Where the court's oral and written orders are

arguably inconsistent, and the written order is consistent with

the court's intent, the written order will be enforced. People

v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004, 1006

(1993). Therefore, the court clearly sentenced respondent for an

indeterminate term in compliance with the Juvenile Act, not for a

60-day "evaluation" as respondent claims. 
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Clearly, then, respondent's return to court in December

was not, as respondent contends, the end of his sentence, but

instead respondent was returned to court pursuant to the court's

reviewing authority under the Juvenile Act. When a trial court

commits a minor to JDOC, the sentencing provisions of the

Juvenile Act state that the court "shall appoint the Assistant

Director of Corrections, Juvenile Division, legal custodian of

the minor." 705 ILCS 405/5-750(4) (West 2004). The preceding

section of the Juvenile Act, section 5-745, entitled "Court

Review," which also appears in the sentencing provisions, allows

the trial court to require "any legal custodian or guardian of

the [minor] appointed under this Act," or the custodian's agency,

to appear before the court and report, "as the court directs."

705 ILCS 405/5-745(1) (West 2004). The provision also indicates

that, at such a hearing, "the court may remove the legal

custodian or guardian and appoint another in his or her stead or

restore the minor to the custody of his or her parents or former

guardian or legal custodian." 705 ILCS 405/5-745(1) (West 2004). 

This section, along with section 5-745’s additional provisions

for court review, updated case plans, and changes in custody,

establish a wide variety of mechanisms by which the trial court

may continue to exercise authority over a delinquent minor, in

JDOC and otherwise. Contrary to respondent's assertion, the
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Juvenile Act clearly authorizes the action of the trial court in

this case. The court required JDOC, as respondent's legal

custodian, to return Justin for the review hearing and report on

respondent's progress at that review hearing, and JDOC did so.

Further, the trial court did not resentence respondent

at the December hearing. As discussed above, respondent's

October sentence was for an indeterminate term and therefore had

not ended when respondent was returned to the court in December. 

At that hearing, respondent made a motion to vacate the

commitment, indicating that he understood the sentence was

ongoing. The court did not resentence respondent when it

declined to grant that motion, nor did it subject respondent to

any further prosecution or punishment. In fact, the sentence

remained completely unaffected by the December hearing because

the motion to vacate was denied. Therefore, respondent was not

subjected to double jeopardy. See People v. Sienkiewicz, 331

Ill. App. 3d 70, 73, 771 N.E.2d 580, 583 (2002) ("The double

jeopardy clause protects a defendant from (1) a second

prosecution after acquittal; (2) a second prosecution after

conviction; and (3) multiple punishments for the same offense").

In the future, a trial court invoking the provisions of

section 5-745 when a respondent minor is sentenced to JDOC should

clearly state that the minor is sentenced to an indeterminate
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term in JDOC, which is not to exceed the maximum sentence

possible for an adult. The court should also expressly state

that maximum (such as, for instance, seven years) in its

sentencing order. The court may then order that the minor be

returned to court on a date certain, expressly pursuant to

section 5-745(a). Last, the court should then state that a

hearing will be held pursuant to section 5-745(c) with respect to

a possible change of custody.

C. Respondent's Counsel Was Not Required To

File a Rule 604(d) Certificate

Respondent next contends that his case must be remanded

because his trial counsel failed to file a certificate as

required by Illinois Supreme Court Rule 604(d). That rule

provides, in pertinent part:

"No appeal from a judgment entered upon

a plea of guilty shall be taken unless the

defendant, within 30 days of the date on

which sentence is imposed, files in the trial

court a motion to reconsider the sentence

***. *** The defendant's attorney shall file

with the trial court a certificate stating

that the attorney has consulted with the

defendant either by mail or in person to
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ascertain defendant's contentions of error in

the sentence or the entry of the plea of

guilty, has examined the trial court file and

report of proceedings of the plea of guilty,

and has made any amendments to the motion

necessary for adequate presentation of any

defects in those proceedings." 210 Ill. 2d

R. 604(d).

Although these Rule 604(d) requirements apply to juvenile

proceedings (In re J.E.M.Y., 289 Ill. App. 3d 389, 390, 682

N.E.2d 451, 452 (1997)), these requirements do not apply to

appeals other than appeals filed "from a judgment entered upon a

plea of guilty." Therefore, in People v. Mathis, 357 Ill. App.

3d 45, 48, 827 N.E.2d 932, 934 (2005), the court held that a

motion to vacate judgment filed more than 30 days after the

imposition of the defendant's sentence was a collateral attack on

the judgment rather than a direct appeal, and therefore the

defendant was not required to file a Rule 604(d) certificate.

Respondent's appeal simply is not an appeal from the

judgment entered by the trial court upon the plea of guilty. 

That judgment, as previously discussed, was entered on October

25, 2005, and respondent did not appeal therefrom. Instead, like

the cause in Mathis, the present appeal arises from a collateral
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attack via the December 20, 2005, motion to vacate. Therefore,

no Rule 604(d) certificate was required.

D. This Court Lacks Jurisdiction To Consider Respondent’s

Claim of Credit for Time Served

Finally, respondent argues that he is entitled to

credit for 21 days served while in the custody of the Livingston

County jail awaiting arraignment and 41 days served while on home

confinement pending sentencing. We hold that this court lacks

jurisdiction to consider this claim at this time.

A claim for additional presentence credit cannot be

forfeited by a defendant’s failure to raise the issue in the

trial court. See, e.g., People v. Dieu, 298 Ill. App. 3d 245,

249, 698 N.E.2d 663, 666 (1998) (holding that normal forfeiture

rules do not apply to claims of improper sentence credit for time

served).

However, while forfeiture is a limitation only on the

parties, and therefore may be dispensed with by the court, lack

of jurisdiction in this court cannot be overlooked. Compare

People v. Normand, 215 Ill. 2d 539, 544, 831 N.E.2d 587, 590

(2005) (noting that the rule of forfeiture is an admonition to

the parties and not a limitation on the court), and People v.

Schutz, 344 Ill. App. 3d 87, 90, 799 N.E.2d 930, 932 (2003)

(electing to consider defendant's claims despite forfeiture),
- 31 -

with People v. Collins, 202 Ill. 2d 59, 65, 782 N.E.2d 195, 198

(2002) (holding that appellate court decision rendered without

jurisdiction is void). Therefore, in People v. Flowers, the

supreme court reversed as without jurisdiction an appellate court

decision to vacate a cost-withholding provision in a trial court

order, despite the appellate court’s finding that the trial

court’s order was void:

"A well-established principle of law

holds that a void order may be attacked at

any time or in any court, either directly or

collaterally. [Citation.] The appellate

court relied on this principle to vacate the

cost-withholding provision of the trial

court’s judgment. We note, however, that

there is a flaw in the appellate court’s

reasoning. Although a void order may be

attacked at any time, the issue of voidness

must be raised in the context of a proceeding

that is properly pending in the courts. If a

court lacks jurisdiction, it cannot confer

any relief, even from prior judgments that

are void. The reason is obvious. Absent

jurisdiction, an order directed at the void
- 32 -

judgment would itself be void and of no

effect." People v. Flowers, 208 Ill. 2d 291,

308, 802 N.E.2d 1174, 1184 (2003).

As noted above, this court’s jurisdiction in this case

is limited by the supreme court’s decision in J.T., holding that

a respondent’s failure to timely appeal from sentencing deprives

a reviewing court of jurisdiction over "any issues arising from

either his guilty plea or his sentence." (Emphasis added.) 

J.T., 221 Ill. 2d at 346-47, 851 N.E.2d at 6. Respondent's

contention that he is entitled to presentence credit is,

ultimately, a claim that the order committing him to JDOC should

be amended to reflect that credit. In this case, the only order

committing respondent to JDOC was issued at respondent's October

2005 sentencing hearing. Under the supreme court's analysis in

J.T., this court does not have jurisdiction to consider issues

arising from that October sentencing. As previously discussed,

respondent was not sentenced in December 2005 and therefore no

sentencing judgment was issued. The record contains no other

sentencing judgment we could order amended to satisfy

respondent's claim. Respondent’s request for additional

presentence credit is an issue directly "arising from either his

guilty plea or his sentence" and does not arise in any manner

that would confer jurisdiction upon this court.
- 33 -

We also note that our holding is not affected by the

fact that respondent is properly before the court at this time on

issues arising from the December 2005 order denying the motion to

vacate JDOC’s guardianship. Our courts have repeatedly found

jurisdiction over issues raised by criminal defendants on appeal

while dismissing other issues raised in the same appeal for lack

of jurisdiction. See, e.g., People v. O’Connor, 313 Ill. App. 3d

134, 136-37, 728 N.E.2d 1175, 1177 (2000); People v. Lee, 318

Ill. App. 3d 417, 419, 743 N.E.2d 1019, 1021 (2000) (dismissing

the defendant’s claims regarding nonfinal denial of motion to

dismiss for lack of jurisdiction despite finding of jurisdiction

on remaining issues on appeal); see also Faith B., 349 Ill. App.

3d 930, 936, 812 N.E.2d 640, 645 (2004) (holding that the

appellate court lacked jurisdiction over permanency issues on

appeal while retaining jurisdiction over motion to vacate). 

Therefore, we hold that this court lacks jurisdiction

to consider respondent’s claim to presentence credit at this

time. We note, however, that the trial court retains

jurisdiction over "nonsubstantial matters" such as the amendment

of the sentencing judgment, despite the filing of an appeal. 

Baker v. Department of Corrections, 106 Ill. 2d 100, 106, 477

N.E.2d 686, 689 (1985). Thus, nothing in this ruling precludes

respondent from challenging the sentencing judgment in the trial
- 34 -

court. See People v. Green, 188 Ill. App. 3d 1027, 1030, 544

N.E.2d 1307, 1309-10 (1989) (holding that the court lacked

jurisdiction to consider the defendant's claim of presentence

credit because the defendant had failed to timely appeal the

judgment and sentence, but noting that the defendant could

challenge validity of the sentencing judgment in the trial

court).

III. CONCLUSION

For the foregoing reasons, we dismiss respondent's

claims that his sentence was unauthorized and that he is entitled

to credit for time served for lack of appellate jurisdiction. 

The trial court's order is affirmed in all other respects.

Dismissed in part and affirmed in part.

STEIGMANN, J., concurs.

APPLETON, P.J., dissents.
- 35 -

PRESIDING JUSTICE APPLETON, dissenting:

I respectfully dissent from the decision of the

majority and would dismiss this appeal for want of appellate

jurisdiction.

Despite the recognition of what the trial court

attempted to do, sentences imposed on juveniles for criminal

offenses are to be of an indeterminate term. 705 ILCS 405/5-

750(3) (West 2004). That term cannot exceed the maximum adult

sentence for the offense charged. 705 ILCS 405/5-710(7) (West

2004). The imposition of the sentence to the JDOC is a final

order. In re J.N., 91 Ill. 2d 122, 127, 435 N.E.2d 473, 475

(1982). 

Here, the trial court brought the juvenile defendant

back to court after 60 days for a review hearing. This is

pursuant to the trial court's inherent ability to modify, by

reduction, any sentence imposed in juvenile cases. See also 705

ILCS 405/5-745(1) (West 2004). The assertion of the majority

that defense counsel made an oral motion for discharge is not

correct. Defense counsel only mirrored the language and original

intention of the trial court to review respondent's status and

progress.

Absent the filing of a motion for discharge or a change

of custody, the trial court was not revested with original
- 36 -

jurisdiction. Had such a motion been filed and denied, an

appealable order would exist. Here, however, the trial court

held a review of the juvenile's progress, found it wanting, and

made no change to the original order. This "review" was pursuant

to the continuing jurisdiction of the trial court created by the

original petition for adjudication, which resulted in a finding

of guilt and imposition of sentence. The opportunity to appeal

that sentence ended on the 30th day following its imposition. 

See 188 Ill. 2d R. 606(a).

No new sentence was imposed following review and

nothing was done by the trial court to create a reviewable order. 

I would therefore dismiss the appeal.