No. 2--05--1225 Filed: 9-5-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court of IL LI NOI S, ) Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 04--CF--2225 ) COREY A. GREEN, ) Honorab le ) Michael J. Burke, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ PRESID ING

JUSTICE

GROMETER d

elivere d the opini on of the c ourt: Defend ant, Corey A. Gre en, entered a partially negotiated

plea of guilty to unlawful delivery of a controlled substance (720 I LCS 570/401(c )(2) (We st 2004)) . He was s entence d to nine y ears' imp risonm ent

and orde

red to pa y va rious fine s and asse ssments. D efenda nt did not mo ve to withdrawthe guilty plea

and vacate the judgmen

t, but inste ad moved t

o reconsider his sentence. The trial court denied the motion, and defendant appealed. Onappeal, defendant

contends that he is entitled to a statutory credit of $5 for each day

that he was incarcerated before he was sentenced. See 725 I LCS 5/110--14(a) (West 2004). The State confesses error on

the merit s. Howev er, it contends tha t, becau se defe

ndant did n

ot follow Su

preme CourtRule 6 04(d) (2 10 Ill . 2d R. 604(d)) by moving to withdraw his guilty plea and vacate the judgmen t, his motion to reconsider sentence was improper, making his notice of appeal untimely andNo. 2--05--1225

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thus d epriving us of jurisdiction over his appeal. We hold that we have jurisdiction and that defendant is entitled to the statutory c redit. Therefore, we affir m the judgment as modified. OnMay 4, 2005, de fendant entere d his guil ty p lea, in exchange

for whic

h the State recommended

a sentence of no morethan 12 years' imprisonment. On June 2, 2005, the trial court sentenced defendant to 9 ye ars' imprisonment, with credit for 298 day s served. The court imposed
a $2,000 controlled-substance assessment (see 720 I LCS 570/411.2(a)(2) (West 2004)), a $100 Trauma Center Fund fine (see 730 I LCS 5/5--9--1.10 (West 2004)), a $100laboratory fee (see 730 IL CS 5/5--9--1.4(b) (West 2004)), and a $660 street-value fine (see 730 I LCS 5/5--9--1.1(a) (West 2004)), but it did not give defendant any monetar y credit for the time that he was incarcerated be fore sente ncing. The cour

t admonished defe

ndant tha t, under Rul e 604(d) , if he did not move within 30 day s to withdr

aw his ne gotiate d plea, he would gi ve up his r

ight to a ppeal. Defendant

did not move to withdrawhis plea and vacate the judgment. On June 13, 2005, he moved to reconsider his sentence, asserting that it was excessive. On Dec ember 6, 2005, after
a hearing at which the parties arg ued the merits of the motion, the trial court stated that the sentence was prop er, and i

t denied t he motion. On Dece

mber 12, 2 005, def

endant f iled a not ice of a ppeal. Onappeal, defenda

nt conten ds that he is entitle d to a credit of $5 per day, or $1,490 in total, againsthis asses sments an d fines. See 725 I

LCS 5/110--1 4(a) (We st 2004). T he State c oncede s that, if we may re ach the merits, we must award defendant the c redit. See People v. Woodard , 175 I ll. 2d 435, 457 (1997) (statutory c redit is mandatory upon prope r application, and defendant does not waive the cre dit by

failing to reque st it in

the trial court). Howeve

r, the Sta te contends that we lack jurisdiction over this

appeal b ecause

defendant filed his notice of appeal more than 30 day s after theNo. 2--05--1225

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ent ry of the judgment (see 188 I ll. 2d R. 606(b)) and the motion to reconsider the s entence wa s improper under Rul e 604(d)and thus di d not extend the time in

which to appeal. For the following
reasons , we hold that a ltho ugh def endan t's postjudgment motion did not comply with Rule 604(d), it did serve as a timely f

iled motion directed

against the jud gment and tolled the time for appeal
un de r R ul e 6 06 (b ). Th er ef or e, th e n ot ic e o f a pp ea l w as ti me ly. Supreme Court Rule 606(b) states that, except as provided in Rule 6 04(d), the notice of appeal in a crimi

nal case must be filed within 30 days afte

r the entry of

the final judgment appealed from or, if a motion

directe d again st

the judg ment is time ly

filed, within 30 days after the entry of the order disposingof the motion. 188 Ill. 2d R. 606(b). Defendant filed his motion to reconsider the sentence within 30 day s after t h e entry of

the judgment and, without doubt, the motion was "directed against the judgment." 188 Ill. 2d R. 606(b). Therefore, the postjudgmen t moti on was ti me ly, and it wou

ld seem tha

t the notic e of appe al, which was file d within

30 days afte

r the denial of th e m ot io n, wa s a ls o t im el y. Nonethe less, the State maintains that the notice of appealwas untimely beca use it was filed
more than 30 days afte

r the entry of

the judgment. According to the State, the motion to reconsider the sentence had no effect. The State relies on the principle that a repetitive postjudgment motion does not extend the time in which to appeal. In People v. Miragl ia , 323 Ill. App. 3d 1 99 (2001), whichthe State

cit es, the def

endant was convicted after a benc h trial and sentenced. He filed a timely postjudgment motion, whichthe trial court denied. Instead of appealing within 30 day s, the defendant filed another postjudgment motion that was denied, t hen file d a notice

of appea l within 30 days afte

r the denial of the repetitive motion but more than 30 days after the order denying theNo. 2--05--1225

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previous motion. We d

ismissed the appea

l. We explained that Rule 606(b) contemplates the filing of only one postjudgment motion, beca use to allow repetitive motions would encourage piecemeal lit igation and harassment and ignore the nee d for finality in trial court pr oceedings. Becau se th e repetitive postjudgment motion was unauthorized by Rule 606(b), it did not extend the time in which to appeal. Miragl ia , 323 Ill. App. 3d at 205-06. The State contends that the single p ostj udgment motion here is similar to the repetitive postjudgment

motion in Miragl ia . Noting that the judgment here wasentered upon a negotiated plea of guilty, the State re lies on Rule 604(d), which states, "No appeal shall be taken upon a negotiated plea of guilty cha

llenging the sentence as excessive unless the de fendant, within 30 days of the imposition of sentence, fi les a motio n to withd raw the plea of gui lty and vacate the jud gment." 210 Ill. 2d R. 604(d). The State observes that defendant filed only a motion to reduce his sentence, thus failing to satisfy the quoted portion of Rule 604(d)
. The State reasons that, like the repetitive motion in Miragl ia , defendant's motion was unauthorized by the supreme court rules and thus ineffectual to extend the

time in whic

h to file the appea

l. The present version of Rule 604(d) is based upon o ur sup reme co urt's decision in People v. Evans , 174 Ill. 2d 320 (1996). See People v. Her mann , 349 Ill. App. 3d 107, 113 (2004). Evans involved two defendants who entered into negotiated plea agreements in which

they ag reed to plead guilty to certa in charg es in

exch ange for the State's agree ment to dismiss other charges and recommend

a specif ic sente nce. Af ter the tr ial cour t accepted the pl eas, ea

ch defe ndant soug

ht to reduce his sente

nce by fili ng a motion to r econside r. At the t

ime that Evans was dec ided, RuleNo. 2--05--1225

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6 04(d) did not distinguish between negotiated guilty pleas and other ty

pes of guilty ple a s. Th e portion of the rule at issue in Evans provided:

"No appeal from a judgment ente red upon a plea of guilty

shall be taken

unless the defenda nt, within 30 days of the date on whi ch sentence is imposed, files in the trial court
a motion to reconsider sentence, if only the sentence is bei ng challen ged, or, if the ple a is being challen

ged, a motion to wi

thdraw h is plea of guilty and vac ate the ju

dgment. " 145 Ill. 2d R. 604(d). Invoking contract principl es, the su preme c ourt held

that t he mot ion-to-reconsider-sentence provisions of Rule604(d) w ere not i ntended t o apply to nego tiated g

uilty pleas. Evans , 174 Ill. 2d at 332. The cour

t explained

that "[t]o p ermit a de fendant to challe nge his sentence without moving to withdraw the guilty

plea *** would vitiate the negotiated plea agreement he

entered into with the State." Evans , 174 Ill. 2d at 332. I n accordance with Evans , a defend ant who enters a negotiated guilty plea and who later

wishes tochallenge only his sentence must now move to withdraw the guilty plea and vacate the judg ement. 210 I ll. 2d R. 604(d). Ordinarily, the f ailure to file the appropr iate motion under Rule 604(d) results in dismissal of the appeal. People v. Linder , 186 I ll. 2d 67, 74 (1999)
. In t he instant case, defendant entered into a ne gotiated plea agree ment. Thus, h e wa s required to withdraw his guilty plea and vacate the judgment before challenging

his s entence. Defendant

did not take this course of action. Instea d, he moved to reconsider his sentence. Under thesecircumstances, we find that defendant' s motion to reconsider his sentence w as unauthorized by Rule 604(d). Nevertheless, the failure to file an author ized Rule 604(d) motion does not impactNo. 2--05--1225

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our jurisdict ion, beca use it is clear that the requirements of Rule 604(d) are not jurisdictional. As the supreme court stated in People v. Flowers , 208 Ill. 2d 29 1, 300-01 (2003 ), the failure to file a proper Rule 604(d) motion "does not deprive the appellate court of jurisdiction over a subseque nt
appeal. [Citation.] As a general rule, however, [it] *** precludes the appellate cou rt fro m consideringthe ap peal o n the m erits ." Thus , defen dant's failure to follow Ru

le 604(d) by moving to withdraw his guilty plea and vacate the judgment subjected him to the conseque nce actu ally specifie d by

the rule --the los s of his rig ht to appe al the jud

gment. However, defendant's motion to reconsider the sentence was nonethel ess authorized by Rule 606(b), which, un

like Rule 604(d), defines the appellate court's jurisdiction over appeals in cr iminal
cases. There is nothing in Rule 606(b) that states that a motion to reconsider a sentence arising from
a negotia ted guil ty plea affects appellate jurisdiction even thoug h the motion is not authorizedunder Rule 604(d). Rule 606(b) requires only that a po stju dgment motion be ( 1) timely (188 I ll. 2d R. 606(b)), (2) directed against the judgme nt (1 88 Ill. 2 d R. 606(b)), and (3) the first such motion ( Miragl ia , 323 Ill. App. 3d at 20 5). Thus, any initial and timely motion directed ag ainst the judgment, even a motion unauthorized under Rule 604(d), tolls the time for filing an appeal under Rule 606(b). We note parenthetically tha t the lang uage of Rule 606(b) accommodates both the denial of an authorized

Rule 604(d) motion and the dis missal of an unauthorized Rule 604(d) motion, by e

mploy ing the t erm "dis posing" in explainin

g that w hen a pos tj udg ment motion is involved, a notice

of appea l must be fi led "wit

hin30 days afte

r the entry of

the order disposing of the motion." (Emphasis added.) 188 Ill. 2d R. 606(b). Here, d efenda nt's postjudgment motion was ti me ly, it was the

sole one t hat he fi led, it

was directed against the

judgmen t, and he a ppealed withinNo. 2--05--1225

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30 days of the de

nial of the motion. Therefore, unlike therepetitive motion in Miragl ia , whichwas neither timely nor the f

irst motion

directe d again st the judg ment, th e m otion in this case was authorized

by Rule 606(b). Thus, filing the motion did not violate Rule 606(b) 's policy a gainst piecemeal litigati on, hara ssment, or the needless prolongation of procee dings at the trial court le vel. Inshort, we hold that d

efenda nt's app eal is timely because his timely motion to reconsider the sentence was authorized by Rule 606(b), even thou

gh, unde r Rule 604 (d), it re quested r elief to whichdefendant had no right. Therefor e, because defendant filed his appeal within 30 days of the disposition of the motion, we have jurisdiction o ver h is appeal. We note that it would have been
more sensible for defenda nt to a ppeal immediately fr om the judgment instead of requesting relief to whic h he was plai nly

not entitle d. We do not e ncourage defen

dants to a ttempt to e

vade the ir obligations under their plea agreeme nts, and we are at a loss to

say why , in this ca se, neither the Sta te nor the trial court responded to defendant's motion to reduce the sentence by

observing that it was improper as a matte

r of law. Noneth el ess, the irregularity of the proceedings did not make de fe nd an t' s a pp ea l u nt im el y. Before proceeding to the merits, we note that Rule 604(d) states that " any issue not raised by the defendant in the motion to reconsider the sentence *** shall be deemed waived." 210 I ll. 2d R. 604(d). Althoug

h defend ant did not

raisethe monetary- credit issue in the motion to reconsider the sentence, we do not find that this language bars def endant's request for the cre dit. As the supreme court stated in Woodard , 175 I ll. 2d at 457, "the statutory right to a per diem credit is confer red in mandatory

terms whi l e b eing subject to a defendant's a pplication. As such, the 'normal rules' of waiver do not apply

[citation], a

nd the rig ht is cog nizable on

appeal a s a

matter of course s ubject toNo. 2--05--1225

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a defen dant's a pplication for it." In thi s case, d efenda nt "appl ied" for the cr

edit by request ing it in his brief in this appeal. As such, we may address the matter

despite h is failur

e to raise it in his motion to reconsider his sentence. Havingresolved the jurisdictional and waiver issues, we

may speedily dispose of

the merit s of this appe al. Defe

ndant con tends, an d the State

conced es, that he is

entitled to a credit of $1,490,
or $5 per day, f

or th e 2 98 da ys that he was incarcerated bef ore sentencing. See 725 I LCS 5/110-- 14(a) (West

2004). As

noted, we may reach t his issue despite defendant's waiver under Rule 604(d). Theref ore, we modify his sente nce to inc lude a $1, 490 cred it agai nst his fine s and asse ssments. The judgment of the circuit court of Du Pag e County is affirmed a s modified. Affirmed as modified. HUTCHINSON and ZENOFF, JJ., concur.