People v. Davidson

2020 IL App (4th) 190512-U

• Court: Appellate Court of Illinois
• Decided: March 3, 2020
• Docket: 4-19-0512
• Status: Unpublished

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 190512-U March 3, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed NO. 4-19-0512 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macoupin County LANCE M. DAVIDSON, ) No. 18TR3143 Defendant-Appellant. ) ) Honorable ) Joshua A. Meyer, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.

ORDER

¶1 Held: The appellate court lacked jurisdiction to hear the matter where the trial court failed to strike defendant’s notice of appeal and consider defendant’s timely filed postsentencing motion.

¶2 The State charged defendant, Lance M. Davidson, with driving on a suspended

license. Defendant pleaded guilty and received 178 days in jail. Defendant subsequently filed, on

the same day, a notice of appeal and a motion to withdraw his guilty plea. The trial court

declined to consider defendant’s motion to withdraw his guilty plea, instead directing the circuit

clerk to file a notice of appeal.

¶3 Defendant appeals, arguing the trial court erred in failing to strike his notice of

appeal and consider his postsentencing motion. For the following reasons, we dismiss and

remand with directions. ¶4 I. BACKGROUND

¶5 On May 27, 2018, the State charged defendant with driving on a suspended

license in violation of section 6-303 of the Illinois Vehicle Code (625 ILCS 5/6-303 (West

2018)). After a series of appearances, on July 12, 2019, defendant pleaded guilty to driving while

license suspended (625 ILCS 5/6-303 (West 2018)), and he was sentenced to 178 days in jail

with credit for 118 days served. On July 15, 2019, defendant mailed a motion to withdraw his

guilty plea from the Western Illinois Correctional Center. On July 17, 2019, the circuit clerk

stamped and filed defendant’s motion to withdraw guilty plea. On the same day, defendant filed

a notice of appeal, which said, “motion to withdraw guilty plea and vacate sentence to circuit

court if denied Notice of Appeal to Appellate Court.” The circuit clerk also stamped and filed the

motion to withdraw guilty plea and vacate sentence on July 17, 2019. In a July 18, 2019, docket

entry the trial court stated:

“Defendant has filed a Petition To Withdraw Guilty Plea and

Vacate Sentence along with a Notice Of Appeal. Since Defendant

has filed a notice of appeal, this court will not set the Petition to

Withdraw Guilty Plea and Vacate Sentence for hearing. Clerk is to

prepare the file for appeal. Clerk to send a copy of this docket

entry to the attorneys and the Defendant.”

¶6 This appeal followed.

¶7 II. ANALYSIS

¶8 Defendant contends the trial court erred by failing to strike his notice of appeal

and consider his petition to withdraw guilty plea and vacate sentence. We agree. For the

following reasons, we dismiss and remand.

-2- ¶9 Defendant’s argument relies on the plain language of Illinois Supreme Court Rule

606(b) (eff. July 1, 2017), which provides in pertinent part: “When a timely *** postsentencing

motion directed against the judgment has been filed by counsel or by defendant, if not

represented by counsel, any notice of appeal filed before the entry of the order disposing of all

pending postjudgment motions shall have no effect and shall be stricken by the trial court. ***

This rule applies whether the timely postjudgment motion was filed before or after the date on

which the notice of appeal was filed.” Defendant argues that because his postsentencing motion

was timely, the trial court erred when it failed to strike his notice of appeal and declined to

consider his postsentencing motion.

¶ 10 The State counters that Rule 606(b) does not apply here because defendant’s

notice of appeal was simultaneously filed with his post-sentencing motion. Specifically, the State

notes People v. Bounds, 182 Ill. 2d 1, 3, 694 N.E.2d 560, 561 (1998), where the Illinois Supreme

Court held that “[w]hen the notice of appeal is filed, the appellate court’s jurisdiction attaches

instanter.” Additionally, the State points to People v. Gitchel, 316 Ill. App. 3d 213, 216, 736

N.E.2d 645, 647 (2000), where this court relied on Bounds to reach the same conclusion, saying,

“Since the trial court was without jurisdiction to consider the postsentencing motion, it is

rendered, in effect, a nullity.”

¶ 11 In Bounds, the defendant simultaneously filed a notice of appeal and a motion for

reconsideration. When deciding Bounds, the court relied on a prior decision, which held that

“when the notice of appeal is filed, the appellate court’s jurisdiction attaches instanter, and the

cause is beyond the jurisdiction of the trial court.” Bounds, 182 Ill. 2d at 3 (citing Daley v.

Laurie, 106 Ill. 2d 33, 37, 476 N.E.2d 419, 421 (1985)). The Bounds court concluded that

because “the jurisdiction of the appellate court attaches upon the proper filing of a notice of

-3- appeal,” the simultaneous filing of a notice of appeal and a timely postjudgment motion divests

the trial court of jurisdiction. Bounds, 182 Ill. 2d at 3.

¶ 12 This court applied the reasoning from Bounds in Gitchel, where the defendant

argued the trial court erred in not considering his postsentencing motion to withdraw his plea.

See Gitchel, 316 Ill. App. 3d at 215-16. In Gitchel we concluded the trial court lacked

jurisdiction to hear the postsentencing motion where in Bounds our supreme court held, “the

jurisdiction of the appellate court attaches instanter when a defendant simultaneously files a

notice of appeal and a postsentencing motion.” Gitchel, 316 Ill. App. 3d at 216 (citing Bounds,

182 Ill. 2d at 3). There, the defendant’s postsentencing motion was “in effect, a nullity” where

“the trial court was without jurisdiction to consider [it].” Gitchel, 316 Ill. App. 3d at 216.

¶ 13 Defendant asserts that neither Bounds nor Gitchel apply because both cases were

decided before the amendment to Rule 606(b) which states, “[t]his rule applies whether the

timely postjudgment motion was filed before or after the date on which the notice of appeal was

filed.” Ill. S. Ct. R. 606(b) (eff. July 1, 2017). Defendant insists we rely instead on People v.

Dominguez, 366 Ill. App. 3d 468, 851 N.E.2d 894 (2006), where the Second District held where

a defendant simultaneously files a notice of appeal and a motion to reconsider, the notice of

appeal is premature and must be stricken. Dominguez, 366 Ill. App. 3d at 472, 851 N.E.2d at 899

(“As a result of defendant’s timely motion to reconsider, however, the notice of appeal from the

dismissal of defendant’s postconviction petition, and the amended notice, must be stricken.”).

¶ 14 We find persuasive defendant’s reference to the language added to Rule 606(b) in

1999. Significantly, the import of the amendment was to ensure the trial court’s consideration of

timely filed postjudgment motions, irrespective of whether such a motion is filed before or after

the proper filing of a notice of appeal. The added language removed any need to determine

-4- whether the proper notice of appeal or timely postjudgment motion was filed first. See Ill. S. Ct.

R. 606(b) (eff. Dec. 1, 1999).

¶ 15 Based on Illinois Supreme Court Rule 606(b) (eff July 1, 2017), the trial court

should have stricken the notice of appeal and considered the timely postsentencing motion. In

this instance, we lack jurisdiction to hear this matter. Thus, we remand the matter to the trial

court to rule on defendant’s pending timely postsentencing motion.

¶ 16 III. CONCLUSION

¶ 17 For the reasons stated, we dismiss and remand with directions.

¶ 18 Dismissed and remanded with directions.

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