People v. Smith

NO. 4-06-0274

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
EDWARD J. SMITH, ) No. 03CF2166
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING

JUSTICE TURNER delivered the opinion of the court:

The Supreme Court of Illinois has remanded this cause

to our court to address a jurisdictional question it raised with

regard to defendant's notice of appeal. We address the supreme

court's question and vacate our March 13, 2007, opinion.

I. BACKGROUND

On November 10, 2004, pursuant to a plea agreement,

defendant, Edward J. Smith, pleaded guilty to possession of a

controlled substance with the intent to deliver (720 ILCS

570/401(c)(2) (West 2002)), and the trial court sentenced him to

10 years' imprisonment. After a January 31, 2005, hearing, the

court denied defendant's amended motion to withdraw his guilty

plea, and defendant appealed. In November 2005, this court

affirmed the trial court's judgment. People v. Smith, No. 4-05-

0104 (November 1, 2005) (unpublished order under Supreme Court
Rule 23).

In February 2006, defendant filed a pro se pleading

entitled "motion to correct sentence," in which he argued his

two-year term of mandatory supervised release (MSR) (actually a

three-year term (see 730 ILCS 5/5-8-1(d)(1) (West 2002))) was

void because it was unconstitutional. Defendant requested the

trial court to "encompass" his MSR term into his sentence. On

21, 2006, the court sua sponte denied the motion, noting the

pleadings were "frivolous and patently without merit." The court

also sent a letter to the warden of the prison where defendant

was housed, informing the warden of its finding and noting

section 3-6-3(d) of the Unified Code of Corrections (Unified

Code) (730 ILCS 5/3-6-3(d) (West Supp. 2003)) with regard to

defendant's good-conduct credit.

On March 20, 2006, defendant filed a notice of appeal.

The notice of appeal listed the date of judgment appealed as

November 10, 2004, and labeled the nature of the order appealed

as a "conviction." In a March 21, 2006, docket entry, the trial

court directed the circuit clerk to prepare and file a notice of

appeal and appointed OSAD to represent defendant. In a written

order dated March 21, 2006, and filed March 23, 2006, the trial

court appointed OSAD to represent defendant and ordered the

circuit clerk to prepare a notice of appeal. On March 23, 2006,

the circuit clerk filed a document certifying she sent a copy of

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the attached notice of appeal to various offices, including this

court. A notice of appeal was not attached to the copy of the

circuit clerk's certification in the appellate record, and this

court's records indicate we only received defendant's pro se

notice of appeal.

On appeal, defendant contended the trial court erred by

finding his February 2006 "motion to correct sentence" was a

"lawsuit" as defined by section 3-6-3(d)(2) of the Unified Code

(730 ILCS 5/3-6-3(d)(2) (West Supp. 2003)). While this court

always examines the record to verify our jurisdiction, we have

normally, in the past, only expressly addressed our jurisdiction

when raised by the parties or when we have lacked jurisdiction.

Since defendant's appeal is in a criminal matter and the rules

governing criminal appeals also apply to postconviction

proceedings (see 134 Ill. 2d R. 651(d)), this court believed it

had jurisdiction under Supreme Court Rule 606 (210 Ill. 2d R.

606), which only requires substantial compliance with the form

notice set forth in subsection (d) of that rule (210 Ill. 2d R.

606(d)). Moreover, we note the facts of this case clearly

indicate what order the pro se defendant was appealing, and the

State, as appellee, has never made a claim to the contrary.

Thus, we entered an opinion that found defendant's motion to

correct sentence was a postconviction petition, rejected

defendant's "lawsuit" argument, and affirmed the trial court's

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dismissal. People v. Smith, 371 Ill. App. 3d 817, 820-21, 867

N.E.2d 1150, 1153-54 (2007).

Defendant filed a petition for leave to appeal to the

Supreme Court of Illinois, which that court granted. People v.

Smith, 224 Ill. 2d 589, 871 N.E.2d 60 (2007). Citing Supreme Court

Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)), the supreme court found

defendant's March 20, 2006, pro se notice of appeal was deficient and

did not confer jurisdiction on this court to review defendant's

appellate contentions. People v. Smith, 228 Ill. 2d 95, 104-05,

885 N.E.2d 1053, 1058-59 (2008). The court further noted that if

defendant had filed an amended notice of appeal under Rule

303(b)(5) (210 Ill. 2d R. 303(b)(5)), the jurisdictional defect

might have been corrected and the appellate court might have

acquired jurisdiction. Smith, 228 Ill. 2d at 105, 885 N.E.2d at

1059. Thus, the supreme court remanded the cause to this court

to consider the jurisdictional question it raised regarding

defendant's notice of appeal. Smith, 228 Ill. 2d at 105-06, 885

N.E.2d at 1059. On March 24, 2008, the supreme court denied a

petition for rehearing. We now address the supreme court's

question.

II. ANALYSIS

A. Motion Taken with the Case

On remand, defendant filed a motion to order the trial

court to amend the notice of appeal nunc pro tunc to reflect the

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exact nature and date of the appealed order. In the alternative,

defendant requested this court to allow him to brief the issue of

jurisdiction.

Given the procedural posture of this case, we decline to

entertain defendant's motion and thus dismiss it. First, we note

defendant raised similar arguments in his petition for rehearing in

the supreme court, and the supreme court denied the petition.

Moreover, the supreme court remanded the cause with specific

instructions to ascertain whether an amended notice of appeal was

filed and did not instruct us to entertain a motion to cure the

defect it found. Further, while we originally concluded this court

had jurisdiction under Rule 606, the supreme court's analysis cites

Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)) and cases that address Rule

303(b)(2). See Smith, 228 Ill. 2d at 104-05, 885 N.E.2d at 1058-

59. Thus, we do not construe the supreme court's opinion as

authorizing us to conclude we were vested with jurisdiction under

Rule 606.

B. Amendment

As stated, the supreme court has remanded the cause for an

answer to a very specific question, whether defendant amended his

notice of appeal under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)).

The record on appeal contains only one notice of appeal, which is

defendant's pro se notice of appeal.

We do note that, on the day after defendant filed his

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March 20, 2006, pro se notice of appeal, the trial court ordered the

circuit clerk to prepare and file a notice of appeal on defendant's

behalf. Under Rule 303(a)(1) (210 Ill. 2d R. 303(a)(1)), defendant

had until March 23, 2006, to file a timely notice of appeal. Even if

the circuit clerk had filed a notice of appeal but not designated it

as an amended notice, we could have regarded it as such since, under

Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)), an appellant may amend the

notice of appeal without leave of court within the period for filing

the notice of appeal. See Hammond v. Firefighters Pension Fund, 369

Ill. App. 3d 294, 302, 859 N.E.2d 1094, 1100 (2006). However,

neither the record on appeal nor our court file contains a notice of

appeal prepared by the circuit clerk. Thus, we find an amended

notice of appeal was not filed in this case.

Accordingly, based on the supreme court's opinion, we

lacked jurisdiction to entertain defendant's appeal from the February

16, 2006, summary dismissal of his motion to correct sentence, and

our prior opinion should be vacated.

III. CONCLUSION

For the reasons stated, we find defendant did not file an

amended notice of appeal. Thus, under the supreme court's decision

in Smith, 228 Ill. 2d at 106, 885 N.E.2d at 1059, our March 13,

2007, opinion addressing defendant's appeal is vacated for lack of

jurisdiction.

Question answered and opinion vacated.

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APPLETON, P.J., and McCULLOUGH, J., concur.

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