## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Bailey , 2012 IL App (2d) 110209

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CHRI STOPHER B. B AI L EY, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-11-0209

Filed Dec ember 10, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s appea l from the denial of his motion to vaca te his guilty plea and sente nce f

or criminal sex ual abuse was dismissed, since his motion

was untimely
, and the Sta t e’ s p articipation in the proce eding s did not

reve st the trial court with jurisdiction beca use the State argued ag ainst the untimely motion.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 06-CM-4924; the Hon. Will iam I . Fe rguson, J udg e, pre siding.

J udg ment Appea l dismi ssed.Counsel on

Appea l Thomas A. L ilien and J aime L

. Montgome ry , both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Robert B. Be rlin, State’s Attorney
, of Wheaton (L isa Anne Hoffma n, Assistant State’s Attorney
, and L awr ence M. Ba uer and J ay Paul Hoffma n, both of State’s Attorney s Appell at e Prosecutor’ s Offic e, of counsel), f

or the People.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustice Schostok concur

red in the judgment and opinion.
J ustice McL are n dissented, with opinion.

OP INION

¶ 1 On Marc h 14, 2007, defe ndant, Christopher B. Ba iley
, enter ed an open guilty plea to the offe nse of criminal sexual a buse, and the trial court sentenc ed him to 300 day s, with credit for time serve d. On October 7, 2010, defe ndant filed a motion to vacate his plea and sentenc e
as being void. The State filed a response , arguing ag ainst the motion, but it did not challeng e the timeliness of the motion. The trial court denied the motion on J anuar y 28
, 2 0 11. Def endant filed a notice of appea l on Fe bruar y 25, 2011, appea ling the denial of his motion to vaca te his plea and sentenc e. He raises the following issues: (1) whether the trial court had jurisdiction (and there fore this cou rt has jurisdiction) to rule on his untimely motion to

vacate, pursuant to the reve stment doctrine, and (2) whether the cause must be rema nded for further proce eding s on his motion becau s e h i s trial counsel failed to file a cer tificate of compliance with I llinois Supreme Court Rule 604(d) (ef f. July 1, 2006). The State responds that the t rial court was not reve sted with jurisdiction an d thus this court lacks jurisdiction. We agree with the State and dismiss the appea l.

¶ 2 BA CKGROUND ¶ 3 The off

ense to whic h defe ndant pled guilty arose from consensua l se x betwee n the 17-
year -old defe ndant and h is 1 6

- year -old g irlfriend. See 720 I L CS 5/12-15(c) (West 2006). The State reque sted, among other thi ng s, that the t rial cour t sentence defe ndant to two year s of

sex offe nder probation and order defe ndant to underg o a sex offe nder evaluation, to reg ister

as a sex offe nder, and to submit to HIV and STD testing. After the trial court sentenc ed defe ndant, an unidentified speake r, presumably either defe nse counsel or t h e prosec utor, asked: “Judge, is there any sentenc e reg arding [sex offe nder] reg istration ? ” The judge replied: “No[,] *** I think my sentenc e was fa i r and appropriate based upon what’s going

-2-on. He’ s g oing to be on mandatory supervised rele ase on the parole any way .” The court then deter mined that defe ndant had been incar cer ated since September 2006 and stated, “we have plent y o f t i me t o *** handle this another way .” Defenda nt acknow ledg ed that he had rea d

a notice of his appea l rights, disc u s s ed t h o s e rights in g reat detail with his counsel, understood them, and had no questions about them. Def endant did not file any timely postjudgment motions following se ntencing

. ¶ 4 On October 7, 2010, more than 31⁄2 year s afte r he was senten ce d
, d ef en dant filed an untimely motion to vaca te his plea and sentenc e. The motion alleged that his plea and sentenc e wer e void beca use a person convicted of criminal sexual abuse is statutorily require d to reg ister as a sex offe nder, and there fore the court did not have t h e authority to rule that de fenda

nt need not re g ister as a sex off ender

. See 730 I L CS 150/2(B )(1)
, 7 (West 2006). Defenda

nt’s attorney did not fi l e a cer tificate of compliance with Rule 604(d) with his moti on to vacate the plea and sente nce. ¶ 5 The State responde d that (1) defe ndant’s sentenc e was not void, beca us e s ex offe nder reg istration is mandatory and, beca use it takes eff

ect b y o p er at i on of law, it need not be specific ally

mentioned in sentenc ing; ( 2) the trial court did not order that defe ndant would not have to reg ister as a sex offe nder; it mere ly did not mention reg istration in the sentenc e; and (3) even if defe ndant’s sentenc e wer e void, the proper reme dy would be to va cate only the sentenc e, not the plea. The State did not challeng e the timeliness of defe ndant’s motion to vacate, but simply denied that the trial court’s admon i s h m en t t h at defe ndant was not require d to reg ister as a

sex offender

rende red his plea

and sente nce void. ¶ 6 The trial court denied defe ndant’s motion on J anuar y 28, 2011, rea soning that the duties, responsibilities, and obligations of sex offe nder reg istration are prede termined by the statute and that the fac t that a court does not order compliance as part of a sentenc e does not me an that the statute has no application. Def endant filed a notice of appea l on Fe bruar y 25, 2011, from the denial of his motion to vacate his plea and sentenc e. On appea l, defe ndant contends that the trial court had jurisdiction under the reve stment doctrine (and there fore this court has jurisdictio n ), an d that the cause must be rema nded for further proce eding s on his motion beca use his trial counsel f

ailed to file a

cer tificate of compliance with Rule 604(d).

¶ 7 ANALYSI S ¶ 8 Revestment ¶ 9 “The timely fi l i n g o f a notice of appea l is both jurisdictional and mandatory .” Secura Insurance Co. v. Illinois Farmers Insurance Co.
, 232 I ll. 2d 209, 213 (2009). Def endant appea ls from a judgme nt entered o n a gu i l ty plea, and there fore Rule 604(d) g overns the perf ection of the appea l. Rule 604(d) require s the filing of a postplea motion within 30 day s of t he court’s imposit ion o f t he defenda nt’s sentenc e. I f t he postplea moti on is denied, the defe ndant must file a notice of appea l from the judgme nt within the time set forth by I llinois S up reme Court Rule 606(b) (eff

. Sept. 1, 2006), which is measure d from the date of en t ry of the order denying the m o t i o n

. Ru l e 606(b) require s that “[e]x cept as provided in Rule 604(d), the notice of appea l must be filed with the cler k of the c ircuit court within 30 day s afte r the entry of the final judgme nt appea led from or if a motion direct ed aga i n s t t he

-3-judgme nt is timely filed, within 30 day s afte r the entry of the order disposing of the motion.”

Wit hout the filing of

a timely notice of a

ppeal, a n appellatecourt is without jurisdiction to enter tain an appe al. People v . Kellerman , 342 I ll. App. 3d 1019, 1023 (2003). ¶ 10 The trial court sentenc ed defe ndant on Marc h 14, 2007. See People v. Danenbe rger , 364 I ll. App. 3d 936, 939 (2006) (final judgme nt is enter ed in a criminal case when the defe ndant is senten ce d ). Under Rule 604(d), defe ndant had until April 14, 2007, to file a postplea motion

. T h u s , defe ndant’s October 7, 2010, postplea motion was untimely

. Be cause defe ndant’s postplea motion was untimely
, it did not toll the 30-day postjudgment period for filing a notice of appea l. Pursuant to Rule 606(b), defe ndant had to file his notice of appea l by April 14, 2007. There fore
, defe ndant’s Fe bruar y 25, 2011, notice of appea l was untimely under Rule 606(b), and w e lac k jurisdiction. ¶ 11 Def

endant conce des that his October 7, 2010, motion to vaca te was untimely

filed, but he nonetheless contends that the t ri al court was reve sted with jurisdiction when it hear d argument on his untim ely postplea motion. The State maintains that its participation at the hearing, arguing ag ainst the postplea motion, did not reve st the trial court with jurisdiction. ¶ 12 Absent a timely postplea m otion, a trial court loses jurisdiction to vacat e or m odify its judgme nt 30 day s after entry of the judgme nt; howe ver, unde r the re vestment doctrine, the parties may reve st the trial cou rt wi t h j urisdiction under cer tain circ umstances. People v. Minni t i , 373 I ll. App. 3d 55, 65 (2007). Revestment occur s when the parties, (1) without objection, (2) a ctively

participate (3) in f

urther proce eding s inconsistent w ith the me rits of the prior judgme nt a fter the30-day period ha s run. People v. Gibson
, 403 I ll. App. 3d 942, 948 (2010). The State did not object to the timel i n es s o f d efe ndant’s postplea motion and actively participated in the hea ri n g o n the motion. The issue thus is whether the parties’ participation in the procee dings w as inconsistent with the merits of the pr ior judg ment. ¶ 13 Def

endant argues that the State’s participation, without objection, in the hearing on the motion indicated that the State did not view the prior judgme nt as final and binding and that therefore its participation in the hearing was inconsistent with the merits of the prior judgme nt. The State conce des that a line of case s from this co urt s up p orts defe ndant’s position, but it argues that in light of supreme court prec edent we incorre ctly ap plied the

reve stment doctrine. See People v . Flowers , 208 I ll. 2d 291 (2003); People v . Kaeding , 98 I ll. 2d 237 (1983); Sears v. Sears
, 85 I ll. 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 pa

rticipation in the hea

ringon the motion was not inconsistent with the prior judgme nt, b ec au s e i t advocated that the trial court deny defe nd an t ’s motion. Acc ording to the State, its conduct was consistent with the prior judgme nt and there fore did not revest the tria l court with jurisdiction. ¶ 14 We beg in with an historical revie w of the applicab l e ca s e l aw

. I n Sears
, the supreme court found untimel y a h u sband’s notice of appea l from the denial of his succe ssive postjudgment motion challeng ing the distribution of marital assets, beca use the motion was filed more than 30 day s afte r the judgme nt a nd the succe ssive motion did not toll the filing period. Sears
, 85 I ll. 2d at 259. The husband, never theless, argued that his notice of appea l was ti mely beca

use hi s wife actively participated i n th e h ea ri ng on the s econd motion and

-4-thus reve sted the trial court with jurisdiction at that time. Sears
, 85 I ll. 2d at 260. The court

found the re vestment doctrine ina pplicable, stating : “The hearing on [t he husband’s] motion did not conce rn the merits of the judgme nt; the participa nts did not ignore the judgme nt a nd start to retry the case , there by implying by their conduct their consent to having the judgme nt set aside. On the contra ry , the hearing

was about whether the judgme nt should be set aside; and [the wife] insisted that it should not. Nothing in the proce eding s was inconsistent with the judgme nt.” Sears
, 85 I ll. 2d at 260. ¶ 15 In Kaeding
, the supreme court observe d that, although it had not had “occ asion to apply the reve stment doctrine in rec ent year s ( cf. Sears [, 85 I ll. 2d at 260]), it enjoy [ed] continued vitality in our appellate court.” Kaeding , 98 I ll. 2d at 241 (citing Sabatino v. Kozy Kottage Inn, Inc.
, 102 I ll. App. 3d 375, 378 (1 9 8 1 ), Slavick v. Michae l Ree se Hospital & Medic al Center
, 92 I l l

. App. 3d 161, 166 (1980), Halleck v. Trumfio
, 85 I ll. App. 3d 1051, 1055 (1980), and Faust v. Michael Ree se Hospit al & Me di ca l Center
, 79 I ll. App. 3d 69, 72-73 (1979))

. The court noted that, “[u] nder the narrow terms of that well-e stablished rule, litigants may reve st a court which has g ener al jurisdiction over the matter with both persona l and subject matter jurisdiction over the particula r cause afte r the 30-da y period following final judgme nt during which post-judgme nt motions must ordinarily be filed.” Kaeding
, 98 I l l

. 2d at 240-41 (citing Ridgely v. Central Pipe L ine Co. , 409 I ll. 46, 49 (1951), Br o w n v. Miner
, 408 I ll. 123, 126 (1951), Craven v. Craven
, 407 I ll. 252, 255 (1950), Rossiter v. S oper , 384 I ll. 47, 59-60 (1943), W eisguth v. Supreme T

ribe of Ben Hur
, 272 I ll. 541, 5 4 3 (1916), and Grand Pacific Hotel Co. v. Pinkerton
, 217 I ll. 61, 83-84 (1905))

. In Kaeding
, our supreme court d i s t inguishe d Sears and held that the doctrine of reve stment applied wher e both parties soug ht to set aside the previously enter ed sentenc ing judgme nt. Kaeding
, 98 I ll. 2d at 241 (“the Depa

rtment’s motion specific ally attacke d the substance of the circ uit court’s sentenc ing or der” ). ¶ 16 On e year later, in Archer Daniels Midland Co. v. Barth
, 103 I ll. 2 d 5 3 6 (1 9 8 4 ), o u r supreme court reje cted the application of the doctrine of reve stment to the fac ts of the case

. The court conclude d that the fac ts wer e simil ar to those in Sears and unlike those in Kaeding
, stating: “As in Sears
, neither the post-judgme nt proce eding s here nor the conduct of the parties

was inconsistent with the court’s judgme nt. Plaintiff did not waive or i gn ore the judgme nt and attempt to re t ry the case , and nothing in its conduct implied any hint of willingness to having the judgme nt set as i d e. The circ uit court was not reve sted with jurisdiction, and the fac t the court ultimately ruled o n the post-judgme nt motion is inconseque ntial.” Barth , 103 I ll. 2d at 540. ¶ 17 No n e o f t h e case s cited above specific ally addre ss ed t h e re v es t m en t d o ct ri n e’ s applicability to untimely postplea motions under Rule 604(d). Howeve r, in People v. Flowers
, 208 I ll. 2d 291, 303 (2003), the supreme court seeme d to cast doubt on the viability of the reve stment doctrine. See Kristopher N. Classen, The Rev estment Doctrine: Alive and W ell or on its Last Legs?
, 100 I ll. B.J. 94 (2012). In Flowers
, the defe ndant filed an untimely Rule 6 0 4 (d ) motion to rec onsider her sentenc e over one year afte r the trial court had

-5-announce d it, and the State did not object that the court lacke d jurisdiction to h ear the

mot i o n

. S h o rt ly afte r the trial court reje cted the motion, the defe ndant filed a notice of appea l. Flowers
, 208 I ll. 2d at 297. The suprem e court observe d that, when the 30-day extension period i n Rule 604(d) has expired and the trial court has not extended the limit ations period, the trial court is divested of jurisdiction to enter

tain a defe ndant’s postplea motion under Rule 604(d). Flowers , 208 I ll. 2d at 303. ¶ 18 Al t houg h the Flowers court did not specific ally speak of t h e re v es t m en t d o ct ri n e, signific antly
, it did state t hat t he S tate’s failure to raise the fac t that the t rial court had los t its jurisdi ction did not give thetrial court the a uthority to proce ed on the motion. Flowers
, 208 I ll. 2d at 303. Citi ng Toman v. Park Castles Apartment Building Corp.
, 375 I ll. 293, 302 (1940), the court explained that “[l] ack of subject matter jurisdiction is not subject to waiver [citation] and cannot be cure d through consent of the parties [citation] .” Flowers
, 208 I ll. 2d
at 303. The court noted that, beca use the trial court’s jurisdiction had long passed, “[t] he only continuing power the circ uit court possessed over the case was limit ed to enfor ceme nt of the judgme nt or corr ection of clerical errors or matters of form so that the rec ord confor med to the judg ment actua lly

rende red.” (Emphasis adde d.) Flowers , 208 I ll. 2d at 306-07. ¶ 19 In People v. Price
, 364 I ll. App. 3d 543, 546 (2 0 0 6 ), t h e d efe ndant filed a motion to withdraw his guilty plea 36 day s afte r his sentenc e had been imposed and, without argument fr o m t he S tate, the trial court dism issed the m otion for lack of jurisdiction. The defe n d an t argued on appea l that the trial court had been reve sted with j u ri s diction beca use the State failed to object on jurisdictional g rounds. W e n o t ed the rationale s offe red to justify the

reve stment doctrine, and we questioned whether the supreme court in Flowers had abrog ated the doctr i n e b y re

j ecting the argument that a lack of jurisdiction to consider an untimely motion could be cure d by waiver or consent. Price
, 364 I ll. App. 3d at 546-47. We fur ther noted the supreme court’s decision in Herringt on v. McCollum
, 73 I ll. 476 (1874), which

see m ed t o apply the doctrine to cure a defe ct in persona l jurisdiction, not subject matter jurisd i cti on. Howeve r, we left open the question of whether
, and to what extent, the

reve stment doc trine survived the supreme court’s decision in Flowers
, beca use the fac ts of the case , wher e the State had not actively participated in arg uing the merits of the defe ndant’s motion, did not require a definitive assessment of the doctrine’ s viability

. Price
, 364 I ll. App. 3d at 547. ¶ 20 Following Flowers and Price , our dec isions in People v . Montiel , 365 I ll. App. 3d 601 (2006), and People v. Minniti
, 373 I ll. App. 3d 55 (2007), defe nded the doctrine. In Montiel
, 1

We not e tha t def

end ant ci te s to Peop le v. W atkins , 325 I ll

. App. 3d 13, 17 (20 01)
, ano the r 1

cas e in which thi s cour t appl ie d the revest m ent doc tr ine to pos tpl ea m oti ons fi le d beyond 30 days. In W atkins , nei the r the tr ia l cou rt nor the Sta te obj ect ed to the unt imeli nes s of the Rule 604( d )

m oti on to re duc e the sen te nce , and a ful l hea ri ng was con duc te d on the def end ant ’s m oti ons

. Beca use
no obj ect ion was ra is ed, we con cl ude d tha t the par ti es h a d a c t i vely par ti ci pat ed in pro cee din gs inc ons is te nt wit h the m er it s of t h e p r i or j udgm ent , and bec aus e the def end ant fi le d his not ic e of app eal wit hin 3 0 d a ys f

r o m the dat e of the den ia l of the m oti ons , thi s cou rt had j uri sdi ct ion to addre ss the app eal

. W

atkins , 325 I ll

. App. 3d at 17. However, W atkins was dec ide d pri or to Flo wers

. T hus , we d id notadd re ss the con ti nue d viabi li ty of the re vestment d octri ne p ost Flo wers

.
-6-the defe ndant filed a motion attacking his sentenc e over two mont h s af t er i t had been

announce d, but, afte r confe rring
, the State agree d to have the court consider the motion. The State also did not raise any objection when the trial court a sked both parties f or objec tions to its considering the motion under reve stment principles. Montiel
, 365 I ll. App. 3d at 603- 04. ¶ 21 On ap p eal, the State argued that Flowers had abrog ated the reve stment doctrine. W e reje cted the ar gu m ent but never mentioned our decision in Price

. First, we noted that the principle stated in Flowers
, that part i es cannot waive objections to subject matter jurisdiction, had been in place long befor e the supreme court’s most rec ent application of the

reve stment doctrine. Montiel
, 365 I ll. App. 3d at 604-05. We then acknow ledg ed, howeve r, that decisions acc epting the reve stment doctrine wer e “admittedly in tension with Flowers .” Montiel
, 365 I ll. App. 3d at 605. We then rec onciled Flowers on the b as i s t h at “it is not consent but active participation that reve sts jurisdiction,” and the fac ts in Montiel
, unlike in Flowers
, involved active participation. (Emphase s in origina l.) Montiel
, 365 I ll. App. 3d at 605. We rea soned that the parties actively participated in proce eding s inconsistent with the prior judgme nt beca

use “[b] oth parties participated in proce eding s in which the State, by its agree ment to a lower sentenc e, ef fec tively conce ded that the pr evious sentenc e wa s highe r than nec essar

y to protect the public inter est.” Montiel , 365 I ll. App. 3d at 605. ¶ 22 In applying the reve stment doctrine to the case , we noted that Fl o w er s u s ed langua g e simil ar to that in Toman
, 375 I ll. at 302, which was deci d ed b ef ore the supreme court’s application of the revestment doctrine in Kaeding
, 98 I ll. 2d at 241. Montiel
, 365 I ll. App. 3d at 605. We pointed out that the Flowers court ga ve no indication that the S tate actively participated in the consideration of the defe ndant’s motion (see Flowers
, 208 I ll. 2d at 297), and there fore the court had no rea son to believe that the conditions for reve stment wer e met. Montiel
, 365 I ll. App. 3d at 605. Thu s, we conclude d that the reve stment doctrine still exis ted. Montiel
, 365 I ll. App. 3d at 605. We did not explain, howeve r, how consent would differ from active participa tion or why a party ’s active participatio n co u l d cure a problem with subject matter jurisdiction without violating Flowers if consent could not. See Classen,
supra , at 96. ¶ 23 We are awa

re that in People v. Ga r

ga n i , 371 I ll. App. 3d 729, 732 (2007), this court reje cted an identical argument made by the State that re vestment did not apply beca use, i n the subsequent proce eding s, the State maintained its orig inal position that the defe ndant’s sentenc e was proper

. We held that the State, by not objecting to the postjudgment motion on t i m el i n ess g rounds and by arguing that the sentenc e was proper , still made a “taci t acknow ledg ment that the prior proce eding s should be revisited.” Gargani
, 371 I ll. App. 3d
at 732. We quoted Kaeding for the g ener al proposition that the doctrine of reve stment applies when “ ‘the parties *** actively participate without objection in proce eding s which are inconsistent with the merits o f t h e prior judgme nt.’ ” Gargani
, 371 I ll. App. 3d at 731 (quotin g K

a edi n g , 98 I ll. 2d at 241). We neg lected, howeve r, to addre ss the fac tual distinction betwee n Kaeding
, wher e both parties soug ht to set aside the prior judgme nt, and Sears and Barth
, wher e, like in Gargani
, the active participa tion involved argument that the prior judg ment should stand. ¶ 24 We addre ssed revestment ag ain s hortly there afte r i n Minniti . There
, the defendant was

-7-sentenc ed o n No v ember 30, 2004, but he waited until J anuar y 7, 2005, to file a motion to

rec onsider the sentenc e. Minniti
, 373 I l l

. App. 3d at 64. The State indicated that it did not object to the trial court’s considering the late filing and argued on the merits of the motion. The trial court denied the motion, and the defe ndant filed an immediate notice o f ap p eal. Minniti , 373 I ll. App. 3d at 64. ¶ 25 On ap p ea l
, the State maintained that the defe ndant’s notice of appea l was untimel y beca use the late motion to rec onsider the sentenc e did not toll the time for seeking an appea l from the orig inal sentenc ing order

. The d ef en d an t responde d that the trial court had been

reve sted with jurisdiction. ¶ 26 W e n o t ed t h at P r ice stated that reve stment allows parties to waive problems wit h a court’s subject matter jurisdiction but conflicts with the rule in Flowers that lack of subject matter jurisdiction is not subject to waiver and cannot be cure d by consent. Minniti
, 373 I ll. App. 3d at 66. We echoe d our rationale in Montiel that the supreme court had employed the

reve stment doctrine eve n afte r ar ticulating the rule in Flowers

. Minniti , 373 I ll. App. 3d at 66. Howeve r, we did not mention our acknow ledgment in Montiel that, even if

reve stment and the Flowers rule c oexis ted, they wer e in conf

lict. ¶ 27 We further observe d that the supreme court decision on which the doctrine seems to be based actua lly applied it only to persona l, not subject matter, jurisdiction but that, since the orig inal case , reve stment “ has repe atedly been interpre ted” to repa ir problems with subje ct matter jurisdiction as well as persona l jurisdiction. Minniti
, 373 I ll. App. 3d at 66. As such,

we agree d with our conclusion in Montiel
, that reve stment could be rec onciled with Flowers “bec ause ‘it is not consent but active participation that reve sts jurisdiction.’ ” (Emphase s in orig inal.) Minniti
, 373 I ll. App. 3d at 66 (quoting Montiel
, 365 I ll. App. 3d at 605). Thus, we ag ain applied reve stment wher e the State actively participated in the hearing on an untimely postjudgment motion by arguing that the mo t i o n s h o uld be denied. Acc ord People v. Cardona
, 2012 I L App (2d) 100542, ¶ 30, appeal allowed
, No. 114076 (I ll. May 30, 2012) (tab l e) (by participating in and arguing on the merits at the hearing on the motion to

rec onsider, the State acte d as though it did not view the prior judgme nt as binding, reve sting the cour t with jurisdiction); Gibson , 403 I ll. App. 3d at 948. ¶ 28 In People v. Zoph
, 381 I ll. App. 3d 435, 450 (2008)
, ci t i n g Gar gani and Minniti , and noting that “this court has consistently maintained that the adver se party ’s active participation in a proce eding that is inconsistent with the merits of the prior judgme nt works to r evest jurisdiction in the trial court,” we held that the reve stment doc trine applied wher e the State did not object to the defe ndant’s motion on timeliness grounds and argued ag ainst the merits of the defe ndant’s contentions in the motion. We noted Price but followed Minniti as the e stablished law of the appellate court. Zoph , 381 I ll. App. 3d at 449-50. ¶ 29 Some appellate court decisions that have followed our rea soning include People v. Lane
, 404 I ll. App. 3d 254, 258-59 (3d Dist. 2010), People v. Gutman
, 401 I ll. App. 3d 199, 210-11 (1st Dist. 2010), aff’d in part & rev’d in part , 2011 I L 110338, and People v. Lindmark
, 381 I ll. App. 3d 638, 652 (4th Dist. 2008). ¶ 30 The Four

th District Appellate Court, in People v. Haldorson
, 395 I ll. App. 3d 980, 983 (2009), appeal denied
, 2 3 5 I ll. 2d 596 (2010), reje cted our analy sis in Montiel
, noting the

-8-following signific ant problems. First, the court observe d that Montiel overlo o k e d th e f a ct that the Flowers decision specific ally addre s s e d a Ru le 604(d) postplea motion, which is differ ent from other postjudgment mot i o n s beca use the rule has its own 30-day require ment in addition to the 30-day require ment set forth in Rule 606(b). Haldorson , 395 I ll. App. 3d at 983-84. The Haldorson court noted that, with Rule 604(d), the defe ndant mus t file a p ostjudgment motion, and the corr ect ty pe of motion, within 30 day s of sentenc ing to prese rve appellate review. Haldorson
, 395 I ll. App. 3d at 984. Second, the court observe d that, “[e]ven if an appellate court has jurisdiction, a defe ndant’s failure to file a timely Rule 604(d) motion or the corr ect Rule 604(d) motion prec ludes the appellate court fr o m considering the appeal on the m erits.” Haldorso n , 395 I ll. App. 3d at 984 (citing Flowers
, 208 I ll. 2d at 301, and People v. Foster
, 171 I ll. 2d 469, 471 (1996)) . The Haldorson court conclude d that in such a situation “ ‘the appellate court must dismiss the appeal [citation]
, leaving the Post-Convi ction Hea ring Act [citation] as the defe ndant’s only rec ourse.’ ” Haldorson
, 395 I ll. App. 3d at 984 (quoting Flowers
, 208 I ll. 2d at 3 0 1 ). T h i rd
, the court observe d that our supreme court has never rec og nized any thing simil ar as an exc ep t ion to

reve stment to the 30-day languag e in Rule 604(d); rathe r, the supreme court has emphasized its require m en t o f s t rict compliance with Rule 604(d). Haldorson
, 395 I ll. App. 3d at 984 (c i t i n g In re W

illiam M.
, 206 I ll. 2d 595, 605 (2003))

. Four th, the court pointed out that appellate courts do not have the authority to make exceptions to s up reme court rules. Haldorson
, 395 I ll. App. 3d at 984 (citing People v. Lyles
, 217 I ll. 2d 210, 216 (2005))

. Finally
, the court found that our attempt to rec oncile Kaeding and Flowers by stating that “it is not consent but active participation that reve sts jurisdiction” (e mphases in orig inal) ( Montiel
, 365 I ll. App. 3d at 605) was contra ry to re al -l i fe ex p erie nce, as the State rar ely chooses not to argue ag ainst a defe ndant’s postplea or posttrial motion. Haldorson
, 395 I ll. App. 3d at 984. ¶ 31 We acknow ledg e that the supreme court rec ently revisited the reve st m en t d o ctrine in People v. Bannister
, 2 3 6 I l l

. 2d 1, 10 (2009), wher e a four- justice majority devoted one sentenc e to a discussion of reve stment and rea ffirme d the doctrine by citing Minniti

. But the majority never mentioned any of the problems surrounding the rule. In their dissent, the three

rema ining justices cited Flowers and Price
, stating that Flowers was “contr ary to the

reve stment doctrine,” and they chastised the majority for rely ing on Minniti
, a case in which the appellate court strug g led to interpre t the impact of Flowers upon the continued validity of t he revestment doctrine. Bannister
, 236 I ll. 2d at 22-2 5 (F re em an, J
., dissenting, joined by Kilbride, C.J ., and B urke, J.). ¶ 32 Acc ording ly
, based on Bannister
, we cannot s ay that reve stmen t wo u l d n ever apply to untimely Rule 604(d) postpl ea m o t i o ns. But without further elucidation from the s upreme court, we find Justice Ka

pala’ s dissent in Minnitiillumi nating , wher ein he e x plained: “In this case , I do not believe that the trial court was reve sted with ju ri s d i ct i o n , beca use althoug h the State did not object to the trial court h earing the untimely postjudgment motion, the p roceeding s wer e not, as the reve stment doctrine require s, inconsistent with the merits of the prior judgme nt ***. Rather, the issue at the proce eding s on defe ndant’s unti mely postjudgment mot ion to rec onsider sentence w as whether the trial court should vacate the sentenc e and conduct a new sentenc ing hearing,

-9-wh i ch wo u ld result in a new judgme nt. The State argued that the sentenc e wa s appropriate and should rema in intact. These proce eding s wer e not inconsistent with the merits of the prior

judgme nt.” Minniti , 373 I ll. App. 3d at 76 (Ka pala, J., diss enting ). ¶ 33 We agree with the dissent in Minniti

. We believe that man y appellate court opinions, including our own, have strayed from application of the reve stment doctrine as exemplified by our supreme court. In order to be inconsist ent wit h a prior judgme nt, p roce eding s must involve the parties’ agree ment that the prior judgme nt is somehow unjust or improper. See Minniti
, 373 I ll. App. 3d at 75-76 (Ka pala, J
., dissenting) ; see also Kaeding
, 98 I ll. 2d at 241 (holding that reve stment applied wher e both parties sought to set aside the prior judgme nt); Montiel
, 365 I ll. App. 3d at 605 (holding that the reve stment doctrine was appropriate when both the defe ndant and the State agree d that the defe ndant’s sentenc e should be reduc ed). But cf. People v. Miraglia
, 323 I ll. App. 3d 199, 206 (2001) (holding that, in light of the State’s repe ated objections, reve stment did not apply and noting that “the parties did not ignor e the judgme nt, start to retry the case , and imply by their conduct that they consente d to having the judgme nt set aside. Rather, the proce eding s wer e adver sarial in nature and conc ern ed whether the judgme nt should be set aside” (citing Sears
, 85 I ll. 2d at 260)). Participating by arguing a g ainst a postplea motion is not inconsistent with the prior judgment and doe s not function to reve st the trial court with jurisdiction. To the extent that we improperly applied the doctrine of reve stment in other case s, th o s e ca s es are err oneous and should not be followed. ¶ 34 In sum, de fenda nt f ailed to f ile a timely postplea motion f rom the sentenc ing judgme nt and the trial court was not reve s t ed wi t h jurisdiction beca use the State argued ag ainst defe ndant’s untimely motion. There fore
, defe ndant’s notice of appea l was untimely and did not confe r jurisdiction on this court. Acc ording ly , we must dismiss t he appe al.

¶ 35 Rule 604(d) Cer tificate ¶ 36 Def

endant contends that, beca use his trial counsel did not file a cer tificate of complianc e with Rule 604(d) in c onjunction w ith the motion to vacate his plea and sentenc e, this c ourt must reve rse the denial of that motion and rema nd the cause for strict compliance with Rule 604(d). Be cause we find that we have no jurisdiction to rea ch the merits of this case , we must dismiss defe ndant’s appe al without rea chingthe merits of this claim. ¶ 37 The trial court would have had jurisdiction to hear defe ndant’s untimely motion only if the moti o n wer e considere d a collater al attack on a void judgme nt. A void order may be attacke d at any time or in any court either direc tly or collater ally

. Flowers
, 208 I ll. 2d at 308 (citing Sarkissian v. Chicago Board of Education
, 201 I ll. 2d 95, 103 (2002))

. Def endant’ s motion did not ref

er to Rule 604(d) , but it did rely on the proposition that a void judgme nt may be attacke d at any time in any court. In light of the holding in Flowers
, we cannot offe r relief even from a void judgme nt if we do not have jurisdiction, beca use, absent jurisdiction, an order d i re ct ed at t he void judgme nt would itself be void and of no eff ect. Flowers
, 208 I ll. 2d at 308. ¶ 38 To the extent that defe ndant’s attack on the judgme nt w as an untimely collater al attac k under section 2-1401 of the Code of Civil Procedur e (735 I L CS 5//2-1401 (West 2010)), or

-10-the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 et seq. (West 2 0 1 0 ))
, t h e State has forf eited any objection to its untimeliness by failing to raise that objection. Howeve r, defe nse counsel is not require d to file a Rule 604(d) cer tificate in a collateral p ro ce eding
, so defe ndant’s only argument for reve rsal nece ssarily fails. See In re Justin L.V.
, 377 I ll. App. 3d 1073, 1087-88 (2007)

.

¶ 39 CONCLUSI ON ¶ 40 For

the re asons stated, we dismiss defe ndant’s appe al.

¶ 41 Appea l dismi ssed.

¶ 42 J USTI CE McLAREN, dissenting. ¶ 43 I respe ctfully dissent, as I believe that the majority has not proper ly deter mined what the

reve stment doctrine entails and has failed to apply the corr ect interpre tation of the doctrine. The majority rel at es , “T h e State did not challeng e the timeliness of defendant’ s motion to

vacate, but simply denied that the trial court’s admonishment that defe ndant was not require d to reg ister as a

sex offender

rende red his plea and sentenc e void.” Supra ¶ 5. The majority sets forth the elements of the doctrine thusly : “Reve stment occur s when the parties, (1) without objection, (2) actively participate (3 ) in further proce eding s inconsistent with the merits of the prior judgme nt afte r the 30-day period has run. People v. Gibson
, 403 I ll. App. 3d 942, 948 (2010).” Supra ¶ 12. ¶ 44 The majority deter mines th a t th e f irst two elements wer e proven. It questions whether and finally deter

mines that the third el em ent was not proven, based upon prior prec edent consisting of sever al case s that not only are fac tually distinguishable but are also misconstrued. These three case s are Sears
, Barth
, and Kaeding

. The majority char acte rizes

2 the issue on appea l as “whe ther the parties’ participation in the proce eding s was inconsistent with the merits of the prior judgme nt.” Supra ¶ 12. I submit that the State’s failure to object to the untimeliness of the motion to vacat e meant that it was addre ssing the merits of the motion and was proce eding in contrav en t i o n to the obvious merit of the finality of the judgme nt. ¶ 45 In order to understand the application of the reve stment doctrine, it would be benef icial to relate what it does not ap p ly to. Revestment is the nominaliz ation of the verb “re vest.” “Reve st” means to reinstate or to place ag ain; to restore to a p re v i o u s eff ective state. M e r r i a m

- W e b s t e r O n l i n e D i c t i o n a r y , a v a i l a b l e a t h t t p : / / w w w

. m e r r i a m

webster .com/dictionary

/reve st (last visited Oct

. 3 1
, 2012). Thus, by definition, it does not apply to situations where jurisdiction in the trial cour t has neve r bee n lost.

J ust ic e K apa la ’s dis sen t in Mi nni ti poi nts out tha t ti m el y sub sequen t pos tj udgm ent m oti ons 2 woul d not af

fe ct the tr ia l cou rt ’s j uri sdi ct ion but woul d af fe ct the app el la te court ’s j uri sdi ct ion wher e
no n oti ce of app eal is fi le d wi thi n 30 days of the den ia l of the fi rst pos tj udgm ent m oti on. Mi nni ti , 373 I ll . App. 3d a t 7 5 ( K apa la , J ., di sse nti ng).

-11-¶ 46 C u ri o u s ly
, the majority cites to two supreme court case s for the p ro p o s i t i o n t h at

reve stment did not arise here

. The majority quotes from Sears to establish the benchma rk for

reve stment in the trial court: “ ‘The hearing on [t he husband’s] motion did not conce rn the merits of the judgme nt; the participa nts did not ignor e the judgme nt and start to r etry the case , there by implying by their conduct their consent to having the judgme nt set aside. On the contra ry , the hearing

was about whether the judgme nt should be set aside; and [t he wife] insisted that it should not. Nothing in the proce eding s was inconsistent with the judgme nt.’ Sears
, 85 I ll. 2d at 260.” Supra ¶ 14. ¶ 47 The problem with citing to Sears as authority rele vant to the reve stment doctrine is that the trial court in Sears never lost jurisdiction such that jurisdiction could, would, or should be re vested, restore d, or reinstated. All of the subsequent postjudgment motions in Sears

wer e filed while the trial court enter tained its orig inal jurisdiction. The parties’ feeb le a tt empt to claim reve stment should have b ee n met with a deter mination that reve stment was not implicated beca

use jurisdiction wa s never lost a nd the motions we re all timely (but did not stay the time to appea l). The ref ere nce to Sears serve s littl e, if any , purpose in defining

reve stment beca

use, assuming, arguendo
, that the parties in Sears came befor e the trial court and said that they agre ed t o revestment, it could not arise beca use jurisdiction in the trial court wa s never

lost! ¶ 48 L i k ew i s e, in Barth jurisdiction was never lost, so reve stment could not possibly h av e been r ealized. In Barth , the def endant f iled a motion to rec onsider prior to the entry of the jud gm en t t h at it was attacking

. Barth
, 103 I ll. 2d at 537-38. Be cause the m otion was filed prior to the entry of judgme nt, it cou l d n o t be deeme d a post judgme nt motion. Be cause it

was not a post

judgme nt motion, it could not stay the running of the time to appea l. Id. at 538. The reve stment doctrine was implicated as an attempt to revitalize th e appea l. The
pre judgme nt motion was filed within 30 day s of the final judgme nt and, thus, the trial court

never lost jurisdiction to consider and rule on it. Howeve r, the moti o n was incapa ble of eff ecting a stay of the time to appea l. Ag ain, reve stment was raised as a means to revitalize the appe al. The supreme court should ha ve pointed out that reve stment was not implicated beca use the trial c ourt neve r l ost jurisdiction to rule on the t imely filed motion. Moreover
, reve stment is a principle involving the trial court. It is not a means to stay the time to appea l

or to resur

rec t an untimely appea l. Citi ng to Barth for authority is misconce i ved, as 3 jurisdiction, not having be en lost, was not ca pable of beingreve sted. ¶ 49 The majority also analy zes Kaeding
, claiming that it established that reve stment applied wher e both parties soug ht to set aside the prior judgme nt. Supra ¶ 15. Howeve r, the holding in Kaeding is not as narr ow as the majority deter mines. The majority claims that, in Gargani
, this court improper ly ref

ere nced Kaeding : “W e n egl ecte d, howeve r, t o addre ss the factual distinction betwee n Kaeding
, wher e both parties soug ht to set aside the prior judgme nt, and

See In re Ma rri age of Agus ts son , 223 Il l

. App. 3d 510 (19 92)
, for a dis cus si on of the 3 dif fe re nce s bet ween tr ia l co ur t an d ap pe ll ate cou rt j uri sdi ct ion re gardi ng suc ces si ve m oti ons dir ect ed
atj udgm ent s a nd f

il ed b ef ore th e t ri al cou rtlo ses or igina l j uri sdi ct ion

.

-12-Sears and Barth
, wher e, like Gargani
, the active participation involved argument that the

prior judg ment should stand.” Supra ¶ 23. ¶ 50 To be factually prec ise, it should be no t ed t h at the parties in Kaeding soug ht to vacate different portions of a judgme nt. The supre me cour t pointed out that the defe ndant di d not object in the trial court to the revisitation of the portion of th e j u d gm en t that he was not attempting to vacate or amend; because the defendant did not object to the S tate’s attempt to aff ect a portion of the judgme nt to which he now objected, it was too late. Kaeding
, 98 I ll. 2d at 241. ¶ 51 T he majority fails to compre hend the differ ence betwee n arg uing that th e j u d gm en t should rema in intact beca

use it is corr ect and arguing that the judgme nt should rema in intact beca use it is final and not revie wable. I f mere ly agree ing to vacate differ ent portions of a judgme nt was the sine qua non , then there was no rea son for the supreme court’s comment that the defendant could or shou l d h av e o b j ecte d. What the s upreme court essentially said
was, if a party does not object to the revisitation that the opponent desires, then that party is agree ing to reve st m en t fo r failure to raise untimeliness and the concomitant lack of jurisdiction to review the me rits of the prior judgment. ¶ 52 The majority fails to rec og nize that one, if not the major, merit of a final judgme nt is that it is final. As such, t here is no need to argue that the judgment is proper , corr ect, just
, fair, sound, etc. All tha

t is neede d is to raise its fina lity and to obje ct to revisiting the judgme nt. Acc ordingto the comment i n Kaeding
, all the defendant had to do was objec t on the basis of finality

. L ikewise, that is all that the State had to do here

. It did not do so. It addre ssed and revisited the merits and, in de rog ation of one substantial me rit of the judgme nt, its finality

. The reve stment doctrine does not requi re t hat the State or any particula r party stand on finality alone in order to preve nt reve stment, but it does require a party to raise the issues of untimeliness and the trial court’s lack o f j u ri s diction in order to preve nt reve stment from

occur ring

. The responding party needs t o i n d i ca t e that it is objecting on the basis of a substantial, if not the g reatest, merit of the fina l judgment, its finality . Terms of art are not require d, but there must be an indication that the judgme nt is final and that the party objects
t o tre at i ng the judgme nt as if it wer e capa ble of revisitation and alteration, reg ardle ss of whether it was corr ectly

decide d. ¶ 53 In Bannister , the supreme court majority cited to Minnitiapproving ly , as follows: “Unde r the reve stment doctrine, litigants may reve st a trial court with persona l and subject matter jurisdiction, afte r the 30-day per i o d fo l l owing final judgme nt, if they actively participate in proce eding s that are inconsistent with the merits of the p rior judgme nt. See People v. Minniti
, 373 I ll. App. 3d 55, 65 (2007), citing People v. Kaeding
, 98 I ll. 2d 237, 240-41(1983) ; People v. Henry
, 329 I ll. App. 3d 397, 403 (2001).” Bannister , 236 I ll. 2d at 10. ¶ 54 Minniti set forth the elements of the re v es t m en t doctrine thusly : “Reve stment applies when the parties (1) actively participate without objection (2) in further proce eding s that are inconsistent with the merits of the prior judgme nt. [C itations.] ” Minniti
, 373 I ll. App. 3d at 65. As pointed out by the rec ord in this case , the State actively participated in the hearing on defe ndant’s motion to vacate without objec ti o n

. A ls o , th e p roce eding s wer e inconsistent with

-13-the merits of the prior judgme nt on two levels. First, the proce eding s did include arguments

that wer e inconsistent with the merits of the prior judgme nt and relief was soug ht. The State

even prese nted an alterna

te form of relief (vac ation of the sentenc e only
, not vacation of the guilty plea, should defe ndant be g rante d relief ). Supra ¶ 5. Second, the fac t that briefing was order ed and a hearing was held on defe ndant’s motion is inconsistent with the finality of the sentenc ing o rd er

. Unfortunately
, the majority has decide d to adopt the rea soning of the dissent in Minniti rathe r than this court’s majority holding in that case , which was cited with 4
approva l by

our supre me cour

t in Bannister. ¶ 55 For

these re asons I

dissent. 5

T he dis sen t in Mi nni ti fa il ed to rec ognize that j uri sdi ct ion was never los t in Sea rs des pit e 4 i t s o bse rvance tha t, whil e a suc ces si ve pos tt ri al m oti on doe s not dives t the tr ia l cou rt of ori gin a l j uri sdi ct ion
, it doe s not st ay the ti m e to appe al onc e the fi rs t m oti on is den ie d. See Mi nni ti , 373 I ll

. App. 3 d at 76 ( K apa la , J ., di sse nti ng).

I am awar e tha t our sup re m e cou rt has acc ept ed for re view thi s court ’s dec is ion in Peop le 5

v. Card ona , 2012 I L App (2d ) 1005 42, appe a l a l l o w e d
, No. 1140 76 (M ay 3 0, 2012 ). Perhap s the

cou rt m ight now dist ingui sh Sea rs and Bart h as having not hin g to do with re vestment. Perhap s the

cou rt wil l al so cl ar if

y tha t it m ean t tha t i t i s t h e fa il ure to obj ect to the unt imeli nes s of the pro cee din gs t hatm akes apar ty’s par ti ci pat ionin th e pr oce edi ngs in con si st entwit h t he meri t( s) of the j udgm ent

.
-14-