dissenting:
I cannot agree that from the record in this case it can be said that the appellate court abused its discretion when it denied defendant’s motion to reinstate his appeal.
There can be no argument with the majority’s conclusion that the defendant’s attorney was guilty of negligence in prosecuting the appeal, and I agree that his conduct should be investigated by the Attorney Registration and Disciplinary Commission. I do not believe, however, that after the appellate court had dismissed the appeal because of such conduct, it should reinstate the appeal in the absence of a showing that there are some issues of merit to be considered on review. The sole issue urged by the defendant in this court is that he had no knowledge of the negligence of his counsel and that it would be unfair to deny him the right to appeal where he at no time knowingly waived this right.
In Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, the Supreme Court held that upon the filing of an appropriate motion by defense counsel, the court may permit counsel to withdraw and dismiss the appeal. This court approved such a dismissal in People v. Jones, 38 Ill.2d 384. I think that the newly appointed defense counsel in our case should at least have shown the appellate court that its order reinstating the appeal pursuant to motion would not' be followed by an Anders motion to withdraw and to dismiss the appeal.
We have held that it is proper to seek relief for inadequate representation of counsel on appeal under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122 — 1 et seq.; see People v. Frank, 48 Ill.2d 500). However, if the defendant were here seeking relief under the Post-Conviction Hearing Act for inadequate representation of counsel, he would be required to show more than that his counsel was incompetent. He would also have to establish that he was substantially prejudiced by the inadequate representation. People v. Thomas, 51 Ill.2d 39, 44; People v. Witherspoon, 55 Ill.2d 18, 21.
Under our Rule 606(c) (50 Ill.2d R. 606(c)) a reviewing court may grant a defendant leave to file a late notice of appeal within six months of the expiration of the time for filing the notice of appeal “by a showing by affidavit that there is merit ***.” (Emphasis added.)
A motion under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) is an appropriate remedy in criminal cases, but relief will be granted only when the motion contains allegations which, if established, would have prevented the entry of the judgment against the defendant. (Williams v. People, 31 Ill.2d 516; People v. Bishop, 1 Ill.2d 60.) A motion under section 72 to vacate a judgment in a civil case must show that the defendant has a meritorious defense. See Bartolini v. Popovitz, 108 Ill. App. 2d 89; Marks v. Gordon Burke Steel Co., 14 Ill. App. 3d 191.
A trial court may vacate or modify a judgment of conviction upon motion of the defendant made during the time that the court retains power to vacate or modify its judgment. However, the motion must be sufficiently supported by the record and affidavits or it will be denied. If the motion is based upon facts not appearing of record, it must be supported by affidavit reciting the facts. 5 Callaghan’s Illinois Criminal Procedure, secs. 39.11, 39.12, and 39.13 (1971).
In view of the consistent holdings in the various situations set out above, I do not think the appellate court should be required to reinstate the appeal in this case unless some showing is made that there are questions involving some merit to be determined.