People v. Young

Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant was sentenced to a term of three to nine years in the penitentiary after pleading guilty to a charge of burglary. He appeals, contending that the record fails to affirmatively show that the trial court exercised its discretion under the Illinois Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91%, par. 120.1 et seq.), and that the trial court’s judgment must therefore be reversed and the cause remanded for a new sentencing hearing.

We observe that the defendant failed to file the motion to withdraw his plea of guilty and vacate the judgment, which is required by Supreme Court Rule 604(d).1

The defendant has argued that Rule 604(d) has no application where the only issue on appeal is the propriety of the defendant’s sentence. The Supreme Court of Illinois rejected such an argument in the recent case of People v. Stacey (1977), 68 Ill. 2d 261, holding that a proper motion under Rule 604(d) is required, even where a defendant sentenced on a plea of guilty wishes to appeal only the sentence. The defendant has attempted to distinguish Stacey on the grounds that Stacey involved negotiated pleas, and that (as the court stated): “As a part of such an agreement the defendant implicitly undertakes to accept the sentence of the court and to admit that the sentence is fair and justified under the circumstances of the case.” (68 Ill. 2d 261, 266.) However, we do not believe that the Stacey holding, that the filing of a motion under Rule 604(d) is a condition precedent to bringing an appeal from a sentence imposed upon a guilty plea, is limited to cases in which the plea was negotiated. In fact, it seems highly appropriate to apply the requirement for the filing of a motion under Rule 604(d) to cases in which it is claimed that the trial court failed to exercise its discretion under the Dangerous Drug Abuse Act, since experience has shown that a trial court’s failure to consider the Act, when it occurs, is frequently inadvertent (see, e.g., People v. Robinson (1973), 12 Ill. App. 3d 291; People v. Smith (1974), 23 Ill. App. 3d 387; People v. Miller (1976), 43 Ill. App. 3d 290), and is thus an omission which could be readily corrected if it were called to the trial court’s attention, thereby saving all concerned the delay and expense which an appeal would entail. We thus feel bound to follow the broad rule in Stacey that “ [procedural rules are binding upon defendants in criminal cases” (68 Ill. 2d 261, 267), and hold that the filing of a proper motion pursuant to Rule 604(d) was a condition precedent to the defendant’s appeal, and that by his failure to file such a motion, the defendant has waived the right to raise the issue here, and the appeal must be dismissed.

In view of our holding that the defendant’s appeal must be dismissed for failure to comply with Supreme Court Rule 604(d), we need not explore his contention that the trial court erred in failing to exercise its discretion under the Dangerous Drug Abuse Act.

Appeal dismissed.

SEIDENFELD and GUILD, JJ., concur.

Rule 604(d) provides in relevant part as follows: “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.” Ill. Rev. Stat. 1975, ch. 110A, par. 604(d).