People v. Wright

Case Date: 04/04/2003
Court: 2nd District Appellate
Docket No: 2-02-0058 Rel

No. 2--02--0058


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
              Plaintiff-Appellee, )
) No. 00--CF--2996
v. )
)
DANIEL J. WRIGHT, ) Honorable
) Joseph R. Waldeck,
             Defendant-Appellant. ) Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Daniel J. Wright, was indicted for the offense ofunlawful possession of a controlled substance with the intent todeliver (720 ILCS 570/401(c)(2) (West 2000)). After a mistrialoccurred, defendant pleaded guilty to a negotiated plea. On August8, 2001, he was sentenced to a term of five years' imprisonmentthat was to be served consecutively to a sentence of two years'imprisonment for another conviction. On October 9, 2001, he fileda motion to correct the mittimus, requesting additional days'credit against his sentence for time already served. An amendedmittimus was filed that same day. Defendant's subsequent pro semotion to withdraw his guilty plea and vacate the judgment wasdismissed as untimely. Defendant timely appeals. We affirm.

As an initial matter, the State contends that this court lacksjurisdiction to hear defendant's appeal because defendant's motionto withdraw his guilty plea was not timely and, thus, his notice ofappeal cannot be timely. We disagree that under thosecircumstances this court would be deprived of jurisdiction. Adefendant waives his right to appeal a guilty plea under SupremeCourt Rule 604(d) (188 Ill. 2d R. 604(d)) unless he or she files atimely motion to withdraw the guilty plea and a timely notice ofappeal; however, we retain jurisdiction over the appeal. People v.Flowers, 333 Ill. App. 3d 60, 64-66 (2002), appeal allowed, 202Ill. 2d 629 (2002). In any event, this court has jurisdiction toreview a trial court's ruling on the timeliness of a motion towithdraw a guilty plea. See People v. Wade, 326 Ill. App. 3d 940,942-43 (2001); accord People v. Aldridge, 219 Ill. App. 3d 520,521-22 (1991).

The requirements for appealing from a judgment entered on aguilty plea are set forth in Rule 604(d). The rule states:

"No appeal from a judgment entered upon a plea of guiltyshall be taken unless the defendant, within 30 days of thedate on which sentence is imposed, files in the trial court amotion to reconsider the sentence, if only the sentence isbeing challenged, or, if the plea is being challenged, amotion to withdraw the plea of guilty and vacate the judgment. No appeal shall be taken upon a negotiated plea of guiltychallenging the sentence as excessive unless the defendant,within 30 days of the imposition of sentence, files a motionto withdraw the plea of guilty and vacate the judgment." 188Ill. 2d R. 604(d).

Defendant argues that the trial court erred by dismissing hismotion to withdraw his guilty plea and vacate the judgment for untimeliness. Defendant contends that his motion was filed "within30 days of the occurrence of the event which caused him to file themotion: the amending of his mittimus." In other words, he arguesthat, when the amended mittimus was filed on October 9, 2001, thatwas the "date on which sentence was imposed" pursuant to Rule604(d), and, therefore, he filed his motion to withdraw his guiltyplea within 30 days of the sentencing date. We do not agree.

For defendant's motion to have been timely filed under Rule604(d), we would have to construe the court's issuance of anamended mittimus as the same as if it issued a new sentence. Atrial court's act of correcting a mittimus, however, is aministerial act and does not change the underlying sentence. See,e.g., People v. Evans, 45 Ill. 2d 265, 269 (1970); People v. Miles,117 Ill. App. 3d 257, 259-60 (1983). The mittimus is a documentdirected to a sheriff, warden, the Department of Corrections, orother executive officer detailing a prisoner's sentence, which isoften simply a copy of the judge's signed judgment or order. 735ILCS 5/2--1801(a) (West 2000). It is not a part of the common lawrecord, and the trial court may amend the mittimus at any time. Miles, 117 Ill. App. 3d at 259. In other words, the mittimusinforms the person or entity detaining a prisoner about thespecifics of the prisoner's sentence so that the prisoner's releasedate can be readily determined.

For example, in People v. Troesch, 57 Ill. App. 2d 466, 467(1965) (per curiam), the defendant found a discrepancy between thecourt's sentencing pronouncement and the mittimus. Because of thisdiscrepancy, he argued that his sentence was invalid. Disagreeing,the court noted that "[a] prisoner duly convicted and sentenced tothe penitentiary is confined not by virtue of the mittimus, but onaccount of the judgment and sentence against him in the trialcourt." Troesch, 57 Ill. App. 2d at 468. The court corrected themittimus to reflect the sentence it actually imposed, but thatinitial sentence was not changed, the Troesch court concluded. Troesch, 57 Ill. App. 2d at 468.

In People v. Langston, No. 1--00--1421 (July 24, 2001), thecourt considered an argument very similar to defendant's. Itexamined whether an amended mittimus' filing date created a new"date of conviction" for the purposes of the Post-ConvictionHearing Act (the Act) (725 ILCS 5/122--1(c) (West 2000)). In thatcase, the trial court corrected the defendant's mittimus on remandto include good-conduct credit. Langston, slip op. at 2. Thedefendant then contended that because his initial sentence wasdeemed invalid by the appellate court, his first valid sentence wasimposed with the amended mittimus and, thus, that sentencing datemust be considered the date of conviction for determining the timefor filing a postconviction petition. The court disagreed, holdingthat "while defendant is correct in asserting that the date ofsentence is the trigger for the period of limitations, we arepersuaded that the triggering event is the initial sentence, eventhough it was invalid." Langston, slip op. at 5-6. The finaljudgment's sentence does not have to be correct in order to startthe time period for filing any postconviction petitions. Langston,slip op. at 6. Rather, "in determining the time for filing apostconviction petition the ' "date of conviction" means the datethat final judgment including sentence was entered' [Citation.]"regardless of whether the sentence is erroneous. (Emphasis inoriginal.) Langston, slip op. at 6.

We hold that the reasoning in Langston also applies to thepresent circumstances. Even though section 122--1(c) of the Actstates that the "date of conviction" triggers the limitationsperiod for filing postconviction petitions and Rule 604(d) statesthat motions to withdraw guilty pleas must be filed within 30 days"of the date on which sentence is imposed," both terms refer to thesame event. The "date on which sentence is imposed" under Rule604(d) means the date the judgment and sentence were filed. Peoplev. Franks, 51 Ill. App. 3d 886, 888 (1977). Likewise, as wepreviously discussed, under section 122--1(c) of the Act, the "dateof conviction" refers to the entry date of the judgment andsentence. Langston, slip op. at 2.

Additionally, it appears that defendant is implicitlycharacterizing his motion to correct the mittimus as a motion toreconsider the sentence, which would toll the 30-day limitationsperiod for filing a motion to withdraw a guilty plea. 188 Ill. 2dR. 604(d). However, where, as here, the defendant pleaded guiltyto a negotiated plea, the motion to reconsider the sentenceprovision of Rule 604(d) does not apply. People v. Wright, 311Ill. App. 3d 1042, 1043 (2000). Nevertheless, defendant'scontention is without avail since the motion to correct themittimus was filed almost two months after the sentencing date.

Defendant also argues that, in finding his motion untimely,the court erred by relying on the date the clerk's office receivedthe motion rather than the verified date of mailing from theprison. We need not address this contention because, even if themotion was filed within 30 days of the issuance of the amendedmittimus, that date was not within 30 days of the sentencing dateas required by Rule 604(d).

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

HUTCHINSON, P.J., and CALLUM, J., concur.