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29 September 2000

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JUSTICE RAPP delivered the opinion of the court:

Defendant, Lisa A. Winston, appeals from the trial court'sorders finding that she violated the conditions of her probationand resentencing her. Defendant claims that the trial court erredin (1) failing to fully admonish her pursuant to Supreme Court Rule605(b) (145 Ill. 2d R. 605(b)); and (2) ordering her to pay apublic defender fee without holding a hearing to consider herability to pay. We remand with directions.

On February 17, 1999, defendant pleaded guilty in case No.98--CF--205 to possession of a controlled substance (less than 15grams of a substance containing heroin) (720 ILCS 570/401(c) (West 1998)) and in case No. 98--CF--206 to unlawful delivery of acontrolled substance (more than 1 but less than 15 grams of asubstance containing cocaine) (720 ILCS 570/402(c)(2) (West 1998)). Pursuant to the terms of a plea agreement, defendant was sentencedto three years' probation on the delivery charge in case No. 98--CF--206 and two years' probation on the possession charge in caseNo. 98--CF--205, the periods to run concurrently. Both probationorders required defendant to undergo drug evaluation and follow-upand random drug testing. The terms of probation imposed on thedelivery charge included 90 days in jail, to be served on weekends,less credit for time already served; a fine of $1,500; a $200street-value assessment; a probation fee of $15 per month; and $500to the public defender fund. The terms of probation on thepossession charge included a $500 fine, a $50 street-valueassessment, and a $50 laboratory fine.

On May 26, 1999, and June 2, 1999, the State filed petitionsto revoke defendant's probation in both cases. Supplementalpetitions were filed on June 9, 1999, and July 15, 1999. Thesepetitions alleged that defendant had violated the terms of herprobation by reporting late or not at all to jail and by failing toreport for random drug testing.

Following a hearing on June 28, 1999, defendant was found tohave violated her probation in both cases. On July 27, 1999, thetrial court revoked defendant's probation in case No. 98--CF--205and sentenced defendant to three years' imprisonment. The trialcourt also extended defendant's probation for four years in caseNo. 98--CF--206. Defendant timely appealed.

I. ADMONISHMENTS

Defendant contends that the trial court failed to fullyadmonish her pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R.605(b)) after the February 17, 1999, guilty plea and sentencinghearing. Defendant contends that this cause should be remanded forfull compliance with Rule 605(b) and to allow her to file a motionto withdraw her guilty pleas.

The State acknowledges that the trial court failed to advisedefendant of the 30-day time limitation for filing a motion forleave to withdraw her guilty pleas. However, the State argues thatdefendant may not collaterally attack her pleas of guilty in anappeal from the orders revoking her probation in case No. 98--CF--205 and extending her probation in case No. 98--CF--206.

Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) requires adefendant who wishes to appeal from a conviction following a guiltyplea to first file in the trial court a written motion to withdrawhis plea of guilty or to reconsider his sentence. "A necessaryantecedent, however, is that the defendant be given the admonitionsprescribed by Rule 605(b) to advise him of those requirements." People v. Jamison, 181 Ill. 2d 24, 29 (1998). In Jamison, thecourt held that, when a trial judge fails to provide the properRule 605(b) admonishments and the defendant fails to follow Rule604(d), the cause should be remanded to the trial court so that thedefendant can be given the correct admonitions and allowed theopportunity to withdraw his guilty plea. Jamison, 181 Ill. 2d at29-31.

Here, the trial court failed to advise defendant of the 30-daytime limitation for filing a motion for leave to withdraw herguilty pleas, as mandated by Rule 605(b). We note that, pursuantto Jamison, it appears that a defendant may attack the judgment atany time when the trial court has failed to give properadmonishments. Therefore, when a trial court fails to properlyadmonish a defendant as to the 30-day limitation for filing amotion for leave to withdraw a guilty plea, the finality of thecase is always in question. We remand this cause to the trialcourt so that defendant can be given correct admonitions andallowed the opportunity to withdraw her guilty pleas.

II. PUBLIC DEFENDER FEE

Defendant also argues that the trial court erred in orderingher to pay a public defender fee without holding a hearing toconsider her ability to pay. This argument would be moot ifdefendant files a motion to withdraw her guilty pleas and themotion is allowed by the trial judge. In any event, defendant haswaived this issue by not raising it in the trial court. See Peoplev. Albert, 243 Ill. App. 3d 23, 28 (1993).

III. CONCLUSION

We remand the causes in case Nos. 98--CF--205 and 98--CF--206to the circuit court of Stephenson County to admonish defendant inaccordance with Rule 605(b) within 30 days of the date our mandateis filed in the trial court so that defendant may have anopportunity to file a motion to withdraw her pleas of guilty underRule 604(d) if she desires. The trial court shall appoint counselto assist defendant if the court finds defendant indigent. If thetrial court vacates the sentences of probation, the court shouldthen vacate the three-year sentence and the four-year extendedprobation that resulted from the violation of probation. If thetrial court denies defendant's postplea motion so as to reconfirmthe original sentences of probation, the three-year sentence andthe four-year extended probation resulting from the probationviolation will stand. Defendant may then appeal the denial of hernew postplea motion should she choose to do so.

Remanded with directions.

GEIGER and COLWELL, JJ., concur.