NO. 4-08-0847 Filed 11/9/09
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
RICKY KING, ) No. 02CF1610
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In September 2002, the State charged defendant, Ricky
King, with five counts of first degree murder (720 ILCS 5/9-
1(a)(1), (a)(2) (West 2000)). Later that month, the trial court
granted the State's motion to dismiss the criminal charges on the
belief defendant had not yet reached 15 years of age at the time
of the alleged crime. That same day, the State filed a
delinquency petition under the Juvenile Court Act of 1987 (Act)
(705 ILCS 405/1-1 through 7-1 (West 2000)).
In December 2002, having learned defendant was actually
over 15 years of age at the time of the alleged crime, the State
moved to dismiss the juvenile case and reinstate the original
criminal charges. In June 2003, the State filed an additional
count of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-
1(a)(West 2000)). That same day, defendant entered a negotiated
plea to the attempt (first degree murder) charge in exchange for
dismissal of the first-degree-murder charges and a 15-year
sentence to the Department of Corrections (DOC). The trial court
dismissed the remaining first-degree-murder charges and
immediately sentenced defendant to 15 years' imprisonment. In
October 2008, defendant filed a petition for postconviction
relief seeking a modification of his sentence on the grounds the
court failed to admonish him of the mandatory-supervised-release
(MSR) term that would follow his imprisonment. The petition was
dismissed as frivolous and patently without merit.
This appeal followed.
I. ANALYSIS
We initially note defendant states in the "Nature of
the Case" portion of his brief that he appeals from the judgment
dismissing his petition for postconviction relief. However, he
does not address the trial court's failure to admonish him as to
MSR in the "Argument" section of his brief. Nonetheless, we have
reviewed the record on the MSR issue and find it supports the
court's dismissal as defendant was explicitly admonished as to
MSR at his June 2003 hearing. Defendant did not address in his
postconviction petition the issue he argues on appeal.
Defendant argues his sentence is void because the State
failed to make the statutorily required request for a sentencing
hearing before the trial court sentenced him as an adult. A
defendant may attack a void judgment at any time, and a reviewing
court has an independent duty to vacate a void order. People v.
Jardon, 393 Ill. App. 3d __, __, 913 N.E.2d 171, 186 (2009). If
the trial court lacked subject-matter or personal jurisdiction,
or the power to enter a particular judgment or sentence, the
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judgment is void. Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at
186. Likewise, a sentence that violates a statutory requirement
is void. People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445,
448 (1995); Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186. A
defendant's claim that his judgment is void is not subject to
waiver. Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186.
Thus, we reject any assertion from the State that defendant may
not raise this issue for the first time on appeal. Jardon, 393
Ill. App. 3d at __, 913 N.E.2d at 186.
We apply the de novo standard of review to dismissal of
a first-stage postconviction petition (People v. Gulley, 383 Ill.
App. 3d 727, 731, 891 N.E.2d 441, 445-46 (2008)) and to issues of
statutory construction (Jardon, 393 Ill. App. 3d at __, 913
N.E.2d at 187).
Section 5-130 of the Act states the following:
"(1)(a) The definition of delinquent
minor under [s]ection 5-120 of this [a]rticle
shall not apply to any minor who at the time
of an offense was at least 15 years of age
and who is charged with (i) first degree
murder ***.
These charges and all other charges
arising out of the same incident shall be
prosecuted under the criminal laws of this
State.
* * *
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(b)(i) If before trial or plea an
information or indictment is filed that does
not charge an offense specified in paragraph
(a) of this subsection (1)[,] the State's
Attorney may proceed on any lesser charge or
charges, but only in [j]uvenile [c]ourt under
the provisions of this [a]rticle. The
State's Attorney may proceed under the
Criminal Code of 1961 on a lesser charge if
before trial the minor defendant knowingly
and with advice of counsel waives, in
writing, his or her right to have the matter
proceed in [j]uvenile [c]ourt.
(ii) If before trial or plea an
information or indictment is filed that
includes one or more charges specified in
paragraph (a) of this subsection (1) and
additional charges that are not specified in
that paragraph, all of the charges arising
out of the same incident shall be prosecuted
under the Criminal Code of 1961.
(c)(i) If after trial or plea the minor
is convicted of any offense covered by
paragraph (a) of this subsection (1), then,
in sentencing the minor, the court shall have
available any or all dispositions prescribed
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for that offense under [c]hapter V of the
Unified Code of Corrections [(Unified Code)].
(ii) If after trial or plea the court
finds that the minor committed an offense not
covered by paragraph (a) of this subsection
(1), that finding shall not invalidate the
verdict or the prosecution of the minor under
the criminal laws of the [s]tate; however,
unless the State requests a hearing for the
purpose of sentencing the minor under
[c]hapter V of the Unified Code, the [c]ourt
must proceed under [s]ections 5-705 and 5-710
of this [a]rticle. To request a hearing, the
State must file a written motion within 10
days following the entry of a finding or the
return of a verdict. Reasonable notice of
the motion shall be given to the minor or his
or her counsel. If the motion is made by the
State, the court shall conduct a hearing to
determine if the minor should be sentenced
under [c]hapter V of the Unified Code. In
making its determination, the court shall
consider among other matters: (a) whether
there is evidence that the offense was
committed in an aggressive and premeditated
manner; (b) the age of the minor; (c) the
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previous history of the minor; (d) whether
there are facilities particularly available
to the [j]uvenile [c]ourt or the Department
of Juvenile Justice for the treatment and
rehabilitation of the minor; (e) whether the
security of the public requires sentencing
under [c]hapter V of the Unified Code; and
(f) whether the minor possessed a deadly
weapon when committing the offense. The
rules of evidence shall be the same as if at
trial. If after the hearing the court finds
that the minor should be sentenced under
[c]hapter V of the Unified Code, then the
court shall sentence the minor accordingly
having available to it any or all
dispositions so prescribed." (Emphasis
added.) 705 ILCS 405/5-130(1)(a) through
(1)(c)(ii) (West 2000).
In the case sub judice, defendant was originally
charged with first degree murder, a section 5-130(1)(a) offense.
Exclusive jurisdiction for this offense, when the offender is at
least 15 years old, lies in criminal court, not juvenile court.
705 ILCS 405/5-130(1)(b)(ii) (West 2000). If other, non-section
5-130(1)(a) charges arising from the same incident are alleged in
an indictment, together with section 5-130(1)(a) charges, the
entire prosecution takes place in criminal court. 705 ILCS
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405/5-130(1)(b)(ii) (West 2000). Here, the State added to the
indictment attempt (first degree murder), a non-section 5-
130(1)(a) charge, which could be prosecuted in criminal court
with the first-degree-murder charge because it arose from the
same incident. However, the statute provides if a defendant
either pleads or is found guilty of only the non-section 5-
130(1)(a) charges, then a court is required to proceed under
sections 5-705 and 5-710 of the Act, unless the State requests,
within 10 days of the plea or trial, a hearing at which the court
would determine whether to sentence the defendant as an adult.
705 ILCS 405/5-130(1)(c)(ii) (West 2000). Here, the defendant
pleaded to only the non-section 5-130(a)(1) charge, triggering
the requirement that the State request a sentencing hearing
within 10 days. The State failed to do this.
The following cases are instructive on the issues
raised in this appeal: Jardon, 393 Ill. App. 3d __, 913 N.E.2d
171, People v. Mathis, 357 Ill. App. 3d 45, 827 N.E.2d 932
(2005), People v. Champ, 329 Ill. App. 3d 127, 768 N.E.2d 237
(2002), People v. Brazee, 333 Ill. App. 3d 43, 44, 775 N.E.2d
652, 653 (2002) (Brazee II), and People v. Brazee, 316 Ill. App.
3d 1230, 1231, 738 N.E.2d 646, 647-48 (2000) (Brazee I).
In Champ, the 16-year-old defendant was charged with
first degree murder. Champ, 329 Ill. App. 3d at 128-29, 768
N.E.2d at 238. A jury found the defendant guilty of involuntary
manslaughter, and the trial court sentenced him to five years in
DOC. Champ, 329 Ill. App. 3d at 128, 768 N.E.2d at 238. On
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appeal, the defendant argued he should have been sentenced under
the Act, rather than as an adult, because the court was required
to sentence him as a juvenile under section 5-4(6)(c)(ii) of the
Act (705 ILCS 405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act
90-590, §2001-15, eff. January 1, 1999)) (1998 Ill. Legis. Serv.
1289, 1405-06)) (codified as amended at 705 ILCS 405/5-
130(1)(c)(ii) (West 2000)) (hereinafter section 5-130(1)(c)(ii))
unless the State moved to sentence him as an adult within 10 days
of entry of the verdict. Champ, 329 Ill. App. 3d at 131, 768
N.E.2d at 240. The State conceded "'a [minor] defendant
convicted of involuntary manslaughter would ordinarily not be
subject to adult sentencing unless the State filed a motion,'"
but it argued a different section excluded defendant from this
safeguard. Champ, 329 Ill. App. 3d at 131, 768 N.E.2d at 240.
The First District Appellate Court disagreed and found the court
was required to sentence the defendant as a juvenile because the
State failed to request a hearing to determine whether the
defendant would be sentenced as an adult. Champ, 329 Ill. App.
3d at 135-36, 768 N.E.2d at 243. The court stated "[a]t such a
hearing, the trial court would have had the opportunity[,] based
on the facts of this case[,] to weigh the need for
rehabilitation, served by juvenile detention, against the need
for protection of the community, served by sentencing defendant
to an adult facility." Champ, 329 Ill. App. 3d at 133, 768
N.E.2d at 241.
The Champ court noted its decision was consistent with
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Brazee I, 316 Ill. App. 3d at 1235, 738 N.E.2d at 650-51, which
reversed a minor defendant's sentence as an adult following a
plea of guilty to criminal sexual assault in exchange for the
State dismissing a charge of aggravated criminal sexual assault.
Champ, 329 Ill. App. 3d at 133, 768 N.E.2d at 241-42. (The
charge of aggravated criminal sexual assault mandated adult
treatment, while criminal sexual assault did not.)
In Brazee I, the reviewing court held the trial court
erroneously sentenced the defendant as an adult because the State
did not request a hearing on the matter. Brazee I, 316 Ill. App.
3d at 1235, 768 N.E.2d at 650-51. The difference between the
Brazee I defendant's conviction by plea and Champ defendant's
conviction by trial "in no way undermines" the hearing
requirement prior to sentencing as an adult. Champ, 329 Ill.
App. 3d at 133, 768 N.E.2d at 242.
In Mathis, the 15-year-old defendant was charged with
possession of a controlled substance with intent to deliver
within 1,000 feet of a school (count I) and possession of a
controlled substance with intent to deliver (count II). Mathis,
357 Ill. App. 3d at 47, 827 N.E.2d at 934. Because of the
defendant's age and the nature of count I, defendant's case was
automatically transferred from juvenile court to criminal court
pursuant to section 5-130(2)(a) of the Act (705 ILCS 405
5/130(2)(a) West 2002)). Mathis, 357 Ill. App. 3d at 47, 827
N.E.2d at 934. In April 2002, defendant pleaded guilty to count
II in exchange for dismissal of count I. Mathis, 357 Ill. App.
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3d at 47, 827 N.E.2d at 934. Because count II, by itself, did
not trigger application of the automatic-transfer provision,
defense counsel told the trial court defendant would waive
juvenile jurisdiction so the matter could stay in criminal court.
Mathis, 357 Ill. App. 3d at 47, 827 N.E.2d at 934. The court
then asked the defendant's mother if she understood the meaning
of the waiver and if she agreed to it, to which she responded
affirmatively. Mathis, 357 Ill. App. 3d at 47, 827 N.E.2d at
934-35. In addition, the minor orally waived his right to have
juvenile jurisdiction applied to his case and acknowledged to the
court he was accepting an adult conviction. Mathis, 357 Ill.
App. 3d at 47-48, 827 N.E.2d at 935.
The Mathis defendant was sentenced to 18 months'
probation. Mathis, 357 Ill. App. 3d at 48, 827 N.E.2d at 935.
While on probation, the defendant was charged with possession of
a stolen motor vehicle. Mathis, 357 Ill. App. 3d at 48, 827
N.E.2d at 935. The State filed a petition for violation of the
defendant's probation. Mathis, 357 Ill. App. 3d at 48, 827
N.E.2d at 935. Thereafter, defendant filed a petition to vacate
the judgment of conviction of April 2002 as void. Mathis, 357
Ill. App. 3d at 48, 827 N.E.2d at 935. On appeal, defendant
argued the criminal sentence was void because the State did not
request a sentencing hearing as required by section 5-
130(2)(c)(ii) (705 ILCS 405/5-130(2)(c)(ii) (West 2002)).
Mathis, 357 Ill. App. 3d at 53, 827 N.E.2d at 939. The appellate
court found the requirement for a hearing is mandatory and cannot
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be waived by a minor defendant, despite defendant's explicit
agreement to a criminal sentence. Mathis, 357 Ill. App. 3d at
54, 827 N.E.2d at 939.
Due to the nature of the defendant's drug crime in
Mathis, that court construed section 5-130(2)(c)(ii) (repealed by
Pub. Act 94-574, eff. August 12, 2005 (2005 Ill. Legis. Serv.
2946, 2947)). Mathis, 357 Ill. App. 3d at 53, 827 N.Ed.2d at
939. However, the language of section 5-130(2)(c)(ii) and
section 5-130(1)(c)(ii), the relevant section in the case sub
judice, is virtually identical. Jardon, 393 Ill. App. 3d at __,
913 N.E.2d at 187.
In Jardon, the defendant was charged with first degree
murder and aggravated unlawful use of a weapon. Jardon, 393 Ill.
App. 3d at __, 913 N.E.2d at 175. Following a bench trial, he
was convicted of second degree murder, an offense not specified
in section 5-130(1)(a). Jardon, 393 Ill. App. 3d at __, 913
N.E.2d at 187. The State waited more than 30 days after judgment
was entered to file its motion requesting defendant be sentenced
as an adult, although the statute required the State to file the
motion within 10 days of a finding or verdict. Jardon, 393 Ill.
App. 3d at __, 913 N.E.2d at 187. The motion was actually filed
on the sentencing date. Jardon, 393 Ill. App. 3d at __, 913
N.E.2d at 187. The State also failed to show it provided
defendant or defense counsel with prior notice of its intent to
file and present its motion at the sentencing hearing. Jardon,
393 Ill. App. 3d at __, 913 N.E.2d at 187. Relying on Mathis,
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the Jardon court held "[b]ecause the terms of section 5-
130(1)(c)(ii) of the Act [(705 ILCS 405/5-130(1)(c)(ii) (West
2004))] are mandatory, the failure to comply with those
provisions renders the sentencing order in [the] case void, and,
contrary to the State's assertion, the imposition of an adult
sentence cannot be characterized as harmless error." Jardon, 393
Ill. App. 3d at __, 913 N.E.2d at 188. Relying on Brazee II, 333
Ill. App. 3d at 44, 775 N.E.2d at 653, the court vacated the
defendant's second-degree murder conviction, ordering the
defendant's adjudication of delinquency instead. Jardon, 393
Ill. App. 3d at __, 913 N.E.2d at 190.
As the State points out, a trial court may not enter
judgment on a plea agreement that is statutorily unauthorized.
People v. Gregory, 379 Ill. App. 3d 414, 422, 883 N.E.2d 762, 769
(2008). Under Illinois law, the State was required to request a
sentencing hearing within 10 days of the entry of defendant's
guilty plea. Its failure to do so renders the 15-year criminal
sentence void, and a defendant may attack a void sentence at any
time. See Champ, 329 Ill. App. 3d at 129, 768 N.E.2d at 238-39.
While the defendant, in his brief, only requests remand
for resentencing under the Act, the State recognizes defendant
would eventually seek to have his conviction for attempt (first
degree murder) vacated and the judgment modified to an
adjudication of delinquency. In the interest of judicial
economy, we will address this issue.
On remand of Brazee I, the trial court sentenced
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defendant as a juvenile but upheld defendant's criminal
conviction. Brazee II, 333 Ill. App. 3d at 44, 775 N.E.2d at
653. Defendant challenged the ruling, and in Brazee II, the
reviewing court held the judgment must be modified to show the
criminal conviction was vacated and defendant was adjudicated a
delinquent minor. Brazee II, 333 Ill. App. 3d at 44, 775 N.E.2d
at 653. Brazee II states section 5-130(1)(c)(ii) "does not
specifically address whether the resultant judgment stands as a
criminal conviction or an adjudication of delinquency." Brazee
II, 333 Ill. App. 3d at 47, 775 N.E.2d at 655. Brazee II posited
the legislature might have intended to maintain the criminal
character of the proceeding by providing that a conviction of an
offense not covered by section 5-4-(6)(a) (705 ILCS 405/5-4(6)(a)
(West 1996)) (repealed by Pub. Act 90-590, §2001-15, eff. January
1, 1999 (1998 Ill. Legis. Serv. 1289, 1406)) (codified as amended
at 705 ILCS 405/5-130(1)(a) (West 2000)) "'shall not invalidate
the verdict or the prosecution of the minor under the criminal
laws of the State.'" Brazee II, 333 Ill. App. 3d at 447, 775
N.E.2d at 655. If so, the criminal conviction should stand, but a
juvenile sentence should be imposed. Brazee II, 333 Ill. App. 3d
at 47, 775 N.E.2d at 655.
However, Brazee II also recognized another reasonable
interpretation of the statutory language to be that it was simply
designed to preserve the factual and legal determinations in the
criminal prosecution, thereby eliminating any issue about whether
the minor would have to be retried under the Act. Brazee II, 333
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Ill. App. 3d at 47, 775 N.E.2d at 655-56. Brazee II resolved
these two possible interpretations in favor of the defendant,
finding the criminal conviction had to be vacated and an
adjudication of delinquency entered. Brazee II, 333 Ill. App. 3d
at 48, 775 N.E.2d at 656. In reaching this conclusion, Brazee II
engaged in a discussion of the purpose of delinquency hearings
being protective, rather than penal in nature. Brazee II, 333
Ill. App. 3d at 48, 775 N.E.2d at 656. "In enacting section [5-
130(1)(c)(ii)], however, the General Assembly obviously
recognized the injustice of criminalizing a minor's less serious
delinquent behavior when the particular charges mandating
criminal prosecution are resolved in the minor's favor." Brazee
II, 333 Ill. App. 3d at 48, 775 N.E.2d at 656. "We can see no
reason why the General Assembly would intend to attach the stigma
and legal consequences of a criminal conviction merely because
the minor at one time stood charged with a more serious offense."
Brazee II, 333 Ill. App. 3d at 48, 775 N.E.2d at 657. The court
found by validating the criminal prosecution and verdict, section
5-130(1)(c)(ii) "merely eliminates the need to retry the
defendant in a formal delinquency hearing." Brazee II, 333 Ill.
App. 3d at 48, 775 N.E.2d at 656.
Brazee II has been followed by the First District in
Mathis and Jardon. While the Brazee II reasoning may well be
justified, we agree with the result, but for reasons based on the
statutory language itself. Section 5-130(c)(ii) provides "unless
the State requests a hearing for the purpose of sentencing the
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minor under [c]hapter V of the [Unified Code], the [c]ourt must
proceed under [s]ections 5-705 and 5-710 of [the Act]." 705 ILCS
405/5-130(1)(c)(ii) (West 2000). Section 5-705 provides as
follows:
"(1) At the sentencing hearing, the
court shall determine whether it is in the
best interests of the minor or the public
that he or she be made a ward of the court,
and, if he or she is to be made a ward of the
court, the court shall determine the proper
disposition best serving the interests of the
minor and the public." 705 ILCS 405/5-705(1)
(West 2000).
Clearly, section 5-705 requires an adjudication of
delinquency prior to imposing a sentence under section 5-710. By
requiring the court to proceed under section 5-705 where the
State fails to request a hearing under section 5-130(c)(ii), the
legislature has required the court to apply the provisions of the
Act. Moreover, Brazee II was decided in 2002, and the
legislature has not changed the language in any way to indicate
Brazee II had misinterpreted its intent. See People v. Wagener,
196 Ill. 2d 269, 283, 752 N.E.2d 430, 440 (2001) (a reviewing
court may presume the legislature knew of prior judicial
interpretations of a statute and agreed with the judicially
constructed meaning if the language at issue was retained in
subsequent amendments). Consequently, the adult conviction must
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be vacated and an adjudication of delinquency must be entered.
We note this result could have been avoided if the
State had followed the procedures required of it under section 5-
130(1)(c)(ii), requested a timely hearing, and presented evidence
for the court to determine whether the minor should be sentenced
as an adult.
Lastly, the State argues defendant is estopped from
asserting his criminal sentence is void while enjoying the
benefit of his negotiated plea. Section 5-130(1)(c)(ii) of the
Act states it applies "after trial or plea." (Emphasis added.)
705 ILCS 405/5-130(1)(c)(ii) (West 2000). Defendant entered a
negotiated plea agreement whereby he plead guilty to attempt
(first degree murder) in exchange for the State's offer of
recommending 15 years' imprisonment and dismissal of the first-
degree-murder charges. The court imposed the State's recommended
sentence of 15 years' imprisonment. According to the statute,
the court did not have the authority to sentence defendant as an
adult "unless the State request[ed] a hearing for the purpose of
sentencing the minor under [c]hapter V of the [Unified Code]."
705 ILCS 405/5-130(1)(c)(ii) (West 2000). The statute does not
distinguish between bench and jury trials or open and negotiated
pleas. Moreover, unlike section 5-130(1)(b)(i), section 5-
130(c)(ii) does not include a waiver clause, and we decline to
read one into it, even where a minor defendant explicitly agreed
to a criminal sentence in a negotiated plea without a hearing on
the matter. See Mathis, 357 Ill. App. 3d at 47-48, 827 N.E.2d at
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935. Thus, we conclude the statutory requirement applies to all
convictions secured by trial or plea, regardless of the form, and
the cases we cite above support this conclusion.
Since his sentencing, defendant has attained 21 years
of age and is no longer eligible to be committed as a juvenile
under the Act. Under these circumstances, the trial court shall
enter an order sentencing defendant under the Act to time served
as of August 3, 2008, the date of his 21st birthday, enter an
adjudication of delinquency, and vacate defendant's criminal
conviction. See Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at
190.
II. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand with directions for the trial court to vacate
the criminal conviction, enter an adjudication of delinquency,
and enter an order sentencing defendant under the Act to time
served as of the date of defendant's 21st birthday.
Reversed and remanded with directions.
MYERSCOUGH and APPLETON, JJ., concur.
SUPPLEMENTAL OPINION
JUSTICE POPE delivered the supplemental opinion of the
court:
Counsel for defendant, following the filing of this
court's opinion in this cause, filed a "Motion for Release
Pursuant to Supreme Court Rule 604(a)(3), or, in the Alternative,
Admission to Bail, Pending Resolution of the State's Appeal."
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The State filed an objection to defendant's motion for release on
bond.
The cases addressing release on appeal under Supreme
Court Rule 604(a)(3) (210 Ill. 2d R. 604(a)(3)) arise out of
interlocutory appeals by the State pretrial. See People v.
Baltimore, 381 Ill. App. 3d 115, 885 N.E.2d 1096 (2008); People
v. Beaty, 351 Ill. App. 3d 717, 814 N.E.2d 590 (2004); People v.
Wells, 279 Ill. App. 3d 564, 664 N.E.2d 660 (1996). When Rule
604(a)(3) is examined in the context of the other provisions of
Rule 604(a), it appears pretrial release during interlocutory
appeals by the State is the focus of the rule.
We need not reach that decision, however, because we
find Supreme Court Rule 613(c) (177 Ill. 2d R. 613(c)) applies to
this matter. Rule 613(c) reads as follows:
"Reversal When Appellant Is Serving
Sentence. If in a case on appeal the appel-
lant is serving the sentence imposed in the
trial court and the judgment is reversed and
appellant ordered discharged, the clerk of
the reviewing court shall at once mail to the
imprisoning officer, certified mail, return
receipt requested, a copy of the mandate of
the reviewing court. It shall be the duty of
the imprisoning officer to release appellant
from custody forthwith upon receiving a cer-
tified copy of the mandate of the reviewing
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court. If appellant is serving the sentence
and the judgment is reversed and the cause
remanded to the trial court for further pro-
ceedings, the clerk of the reviewing court
shall at once mail to the imprisoning offi-
cer, certified mail, return receipt
requested, a copy of the mandate of the re-
viewing court. The imprisoning officer shall
forthwith, upon receiving the certified copy
of the mandate of the reviewing court, return
appellant to the trial court to which the
cause was remanded." 177 Ill. 2d R. 613(c).
Rule 613(c) is self-executing and needs no action from
this court. Accordingly, we deny defendant's motion as moot.
Motion denied.
MYERSCOUGH, P.J., and APPLETON, J., concur.
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