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No. 2--02--0451

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

Pursuant to an agreement with the State, the defendant,Anthony Bresley, pleaded guilty in the circuit court of Du PageCounty to unlawful restraint (720 ILCS 5/10--3 (West 2000)) anddriving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2000)). The defendant appeals from thetrial court's order striking, as untimely, his motion to reduce his sentence. He argues that his failure to timely file the motionis excused because the trial court did not admonish him properlyunder Supreme Rule 605(b) (Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(b), eff. October 1, 2001). We vacatethe defendant's sentence for DUI, in part, and remand the cause forfurther proceedings.

The defendant was charged with criminal sexual assault (720ILCS 5/12--13(a)(1) (West 2000)), DUI, and various trafficoffenses. Pursuant to an agreement with the State, the criminalsexual assault charge was reduced to unlawful restraint, and inexchange for the defendant's guilty plea, the State recommendedthat the defendant be sentenced to five years' imprisonment. Thetrial court accepted the recommendation and sentenced the defendantaccordingly. The agreement also provided that the defendant wouldplead guilty to DUI, but there was no agreement as to sentencingfor that offense. The trial court sentenced the defendant to"court supervision, terminating satisfactorily instanter." Pursuant to the plea agreement, the remaining charges were nol-prossed.

After imposing sentence, the trial court admonished thedefendant that he had the right to appeal, but that if he desiredto do so, he would have to file a written motion within 30 daysseeking to withdraw his guilty plea. The trial court did notadvise the defendant that he could move for reduction of hissentence.

More than two months after he was sentenced, the defendantmailed a motion for reduction of his sentence to the clerk of thecircuit court. The motion sought relief only with respect to thesentence for unlawful restraint. The trial court reappointed theDu Page County assistant public defender who had represented thedefendant in connection with his plea to represent him inconnection with his motion. After doing so, however, the trialcourt struck the motion as untimely. This appeal followed.

On appeal, the defendant initially asserted that the pleaagreement did not address sentencing and, therefore, his guiltyplea was not "negotiated" for purposes of Supreme Court Rule 604(d)(188 Ill. 2d R. 604(d)) and Supreme Court Rule 605(c) (OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 605(c), eff.October 1, 2001). A negotiated guilty plea is "one in which theprosecution has bound itself to recommend a specific sentence, ora specific range of sentence, or where the prosecution has madeconcessions relating to the sentence to be imposed and not merelyto the charge or charges then pending." 188 Ill. 2d R. 604(d). The defendant contended that because the plea was not negotiated,the trial court should have advised him, pursuant to Rule 605(b),that he could move for reduction of his sentence. According to thedefendant, the trial court's failure to do so excused his tardyfiling of the motion, which ordinarily must be filed within 30 daysof the date on which sentence is imposed (188 Ill. 2d R. 604(d)).

The State correctly responded that the defendant's plea to thecharge of unlawful restraint was, in fact, negotiated; as part ofthe bargain, the State agreed to recommend a specific sentence. Thus, according to the State, the admonition given by the court--that to appeal the defendant would first have to move to withdrawhis plea--was complete (see Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(c)(2), eff. October 1, 2001). In hisreply brief, the defendant concedes that this is the case withrespect to the unlawful restraint charge. However, the defendantmaintains that the plea of guilty to DUI was not negotiated and,therefore, the trial court's admonition was deficient with respectto that plea. We need not address the issue, however, because weconclude that the disposition of the DUI charge was improper andmust be vacated in part.

The trial court placed the defendant on "court supervision,terminating satisfactorily instanter" for DUI. On two occasionsthis court has held that this is not an authorized disposition ofa criminal charge. Section 5--6--3.1(b) of the Unified Code ofCorrections (730 ILCS 5/5-6-3.1(b) (West 2000)) provides that"[t]he period of supervision shall be reasonable under all of thecircumstances of the case." In People v. Oswald, 106 Ill. App. 3d645 (1982), we considered orders like the one here in consolidatedappeals arising from prosecutions for battery and criminal trespassto land. We rejected the argument that because the statute doesnot set forth a minimum supervision period, trial courts havediscretion to place defendants on supervision terminated instanter:

"The obvious purpose of having a period of supervision is topermit a meaningful opportunity to observe the conduct of theoffender over some reasonable period of time. By terminatingthe supervision instanter the trial court has frustrated thelegislative intent and has denied the State and the courtopportunity to insure to the public that the defendants'conduct did not warrant criminal records. The termination ofsupervision instanter has the mark of subterfuge, a way toavoid the statute without exercising discretion. We concludethat such a disposition is not authorized by statute." Oswald, 106 Ill. App. 3d at 650.

In People v. Scognamiglio, 119 Ill. App. 747 (1983), werejected the argument that Oswald should not be applied "to trafficoffenses, such as speeding, where because of the volume of thecases it would be impractical, and often unnecessary, to require areasonable period of supervision." Scognamiglio, 119 Ill. App. 3dat 752.

Accordingly, we conclude that the disposition of the DUIcharge is not authorized by statute because it does not conform tothe statutory requirement that the period of supervision shall bereasonable. The disposition was therefore void. See People v.Arna, 168 Ill. 2d 107, 113 (1995) ("A sentence which does notconform to a statutory requirement is void"). This court hasauthority to correct a void sentencing order at any time, even whenthe parties have not raised the issue. Arna, 168 Ill. 2d at 111,113.

Pursuant to Oswald and Scognamiglio, we vacate the portion ofthe trial court's order terminating his supervision instanter andremand the cause for the trial court to enter an order in theproper exercise of its discretion under section 5--6--3.1 of theUnified Code of Corrections (730 ILCS 5/5-6--3.1 (West 2000)). Oswald, 106 Ill. App. 3d at 650; Scognamiglio, 119 Ill. App. 3d at753. In light of this disposition, the timeliness of thedefendant's motion to reduce his sentence and the trial court'scompliance with Rule 605(b) are moot issues. On remand, afterentering an order under section 5--6--3.1, the trial court shouldproperly admonish the defendant in accordance with Rule 605(b).

For the foregoing reasons, we vacate that portion of the trialcourt's order terminating the defendant's court supervisioninstanter and remand the cause for further proceedings inaccordance with this opinion. In all other respects, the judgmentof the circuit court of Du Page County is affirmed.

Affirmed in part and vacated in part; cause remanded withdirections.

O'MALLEY and GROMETER, JJ., concur.