dissenting:
I dissent from the opinion of the majority, the first portion of which is a wholly unnecessary exegesis.
The only question presented is whether the defendant has complied with procedural requisites for perfecting an appeal. It is clear the defendant did not file a written motion to withdraw her guilty plea prior to taking this appeal.
Supreme Court Rule 604(d) (103 Ill. 2d R. 604(d)) provides in this regard:
“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.”
An appeal filed without compliance with Rule 604(d) (103 Ill. 2d R. 604(d)) deprives the defendant of his right to appeal after a plea of guilty by failing to vest jurisdiction in the appellate court. People v. Joy (1986), 150 Ill. App. 3d 310, 314.
The majority point out that an exception to the requirement of the filing of a Rule 604(d) motion is made when the failure to file such a motion constituted ineffective assistance of counsel. They then cite People v. Morguez (1980), 90 Ill. App. 3d 471, People v. Brownell (1980), 86 Ill. App. 3d 697, and People v. Meacham (1977), 53 Ill. App. 3d 762.
Brownell is quite different than the case at hand because there we found that the trial court failed to admonish the defendant of significant sentencing factors required by Supreme Court Rule 402 (87 Ill. 2d R. 402), which required us to set aside the guilty pleas.
In both Morquez and Meacham the reviewing court was able to determine that the failure to file the Rule 604(d) motion was the fault of defendant’s counsel rather than the defendant.
There is nothing in the record before us that reveals that Liedtke ever communicated to counsel a timely decision to challenge the judgment. No affidavits were presented to the trial court declaring that Liedtke instructed her attorney to appeal.
The majority relies on the following statement made by defendant’s counsel after sentencing:
MR. LARAIA: “I am just asking that the court set a bond. I think the court, at least in the comment that you said, indicated that maybe the Appellate Court might find it’s a different circumstance, and I would like to go forth.” (Emphasis added.)
I disagree with the majority, which holds that the record shows that the defendant wished to appeal.
The State asked the trial court to require the defendant to begin service of her three-month sentence instanter. The court, recognizing the need to allow the defendant time to perfect her appeal, provided that she was to report to jail within 20 days unless the defendant has perfected her appeal. That was seven months ago and defendant has neither “perfected” her appeal nor gone to jail.
I am of the opinion that this court does not have jurisdiction of this appeal because the requirements of Rule 604(d) were not complied with. (People v. Ahlstrand (1983), 113 Ill. App. 3d 363; People v. Newbolds (1981), 98 Ill. App. 3d 1018.) That rule plainly requires the filing of a written motion to vacate the plea of guilty and to vacate the judgment, and in my view this is not satisfied merely by counsel’s moving the court to set an appeal bond. To so hold emasculates the supreme court rule. (See People v. Frey 1977, 67 Ill. 2d 77.) I therefore dissent.