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12 September 2000

In February 1998, defendant pleaded guilty to one count ofburglary (720 ILCS 5/19-1 (West 1998)), and the trial courtsentenced him to 12 months' probation with 10 weekends of periodic imprisonment and fined him $300. In February 1999, thecourt revoked defendant's probation, and in June 1999, the courtresentenced him to 3 years' imprisonment with 30 days' credit fortime served in the county jail as part of his probation sentence. Defendant appeals, contending that (1) he is entitled to (a) anadditional 9 days' sentence credit for time spent in jail awaiting sentencing and (b) a corresponding $45 credit against hisfine; and (2) the case should be remanded for a hearing on hispostsentencing motion, which was filed on July 6, 1999, simultaneously with his notice of appeal, but which the trial court didnot consider. We affirm as modified and remand with directions.

The record reflects, and the State concedes, defendant wasincarcerated for 39 days prior to sentencing on revocation ofprobation, but the trial court credited him with only the last 30days. However, where a defendant serves jail time on weekendsunder a sentence of periodic imprisonment (730 ILCS 5/5-7-1 (West1998)), he is entitled to credit for all the days during thatperiod, and not just for time actually spent in confinement. People v. Scheib, 76 Ill. 2d 244, 254-55, 390 N.E.2d 872, 876-77(1979); People v. Hutchcraft, 215 Ill. App. 3d 533, 539, 574N.E.2d 1337, 1340-41 (1991). The governing statutory provisionsare explicit. Section 5-7-1(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-7-1(d) (West 1998)) provides: "The term of the sentence shall be calculated upon the basis ofthe duration of its term rather than upon the basis of the actualdays spent in confinement." Section 5-7-2(c) of the Unified Codestates: "That part of the term under paragraph (d) of [s]ection5-7-1 which has been served under the sentence of periodicimprisonment shall be credited against a sentence of imprisonment." 730 ILCS 5/5-7-2(c) (West 1998). Sentence credit isgenerally considered under section 5-8-7(b) of the Unified Code(730 ILCS 5/5-8-7(b) (West 1998) ("shall be given credit *** fortime spent in custody as a result of the offense for which thesentence was imposed")); crediting for periodic imprisonment isan exception, however, more specifically addressed by the aforementioned sections, which control as to the duration of its term.

Counting from February 27, 1998, through May 3, 1998, thelast day of 10 weekends of periodic imprisonment, plus 9 daysserved prior to that, yields 75 days of credit. Accordingly,defendant is entitled to an additional 45 days of sentencecredit. We note that the form judgment of sentence used here maycontribute to the problem, as item C states "The defendant isentitled to credit for time actually served in custody of ___days." This form could be updated to provide, for example, asfollows:

C.(1) The defendant is entitled to time served onperiodic imprisonment for the duration of its term from___ to ___, for a total of ___ days;

(2) the defendant is entitled to credit for timeserved awaiting sentence on a bailable offense of ___days; and a corresponding credit against $___ fine of$___ ($5/day); and

(3) the defendant is entitled to credit for othertime actually served in custody of ___ days.

Defendant is further entitled to a corresponding $45 creditagainst the fine imposed for 9 days served awaiting sentence onthe bailable offense of burglary. People v. Woodard, 175 Ill. 2d435, 453-57, 677 N.E.2d 935, 944-46 (1997).

Finally, defendant contends that the case should be remandedfor a hearing on his postsentencing motion to withdraw his pleain which he inartfully alleged he received ineffective assistanceof counsel that resulted in his admission to the allegations ofthe petition to revoke probation. We disagree. In People v.Bounds, 182 Ill. 2d 1, 3, 694 N.E.2d 560, 561 (1998), the supremecourt held that the jurisdiction of the appellate court attachesinstanter when a defendant simultaneously files a notice ofappeal and a postsentencing motion. Since the trial court waswithout jurisdiction to consider the postsentencing motion, it isrendered, in effect, a nullity. It necessarily follows that sucha motion does not reside in legal limbo only to be resurrected atthe conclusion of appellate review. If the trial court waswithout jurisdiction to consider the motion when it was filed, itis without jurisdiction to consider it now.

Before concluding, we note that the Second District Appellate Court recently refused to apply Bounds in a case wheredefendant filed a notice of appeal five days before filing amotion to reconsider sentence. People v. Clark, 314 Ill. App. 3d181, 182-84, ___ N.E.2d ___, ___ (2000). In doing so, the courtreasoned that (1) Bounds involved a postconviction appeal ratherthan a direct appeal following conviction, (2) the motion and thenotice of appeal were not filed simultaneously, and (3) thesubstance of the motion involved a challenge to defendant'ssentence, which was governed by section 5-8-1(c) of the UnifiedCode (730 ILCS 5/5-8-1(c) (West 1998)), which provides:

"If a motion filed pursuant to this subsection [toreconsider sentence] is timely filed within 30 daysafter the sentence is imposed, then for purposes ofperfecting an appeal, a final judgment shall not beconsidered to have been entered until the motion toreduce a sentence has been decided by order entered bythe trial court." 730 ILCS 5/5-8-1(c) (West 1998).

In doing so, the court was critical of the fact that the supremecourt "did not acknowledge any of the appellate court decisionsthat were decided before Bounds and that reached a contraryconclusion." Clark, 314 Ill. App. 3d at 182, ___ N.E.2d at ___.

We find that the stated rationale in Clark does not withstand close scrutiny and, in any event, it does not affect theresult in this case. In the first instance, the supreme court inBounds drew no distinction between postconviction and directappeals following trial proceedings. To the contrary, the courtspecifically based its ruling on an interpretation of how criminal rules governing appeals operate. Implicit in that determination is the conclusion that they operate uniformly for all casesto which they apply. The Clark court also failed to note thatDaley v. Laurie, 106 Ill. 2d 33, 35-36, 476 N.E.2d 419, 420-21(1985), which the supreme court found controlling in Bounds,arose from a direct appeal following a conviction for unlawfuluse of weapons in which defendant filed a motion for a new trialand a notice of appeal on the same day.

We also reject the Clark court's conclusion that a differentresult obtains when the postjudgment motion involves a request toreconsider sentence. Initially, we note that such a motion isentirely appropriate in a postconviction petition setting when,for instance, defendant must be resentenced after a determinationthat the original sentencing order was void. This undercuts theconclusion in Clark that an artificial, blanket distinctionexists for disparate treatment of postconviction and directappeals. In addition, we fail to see how a statute that purportsto determine when an appeal may be taken trumps a supreme courtrule that requires a different result. It is axiomatic that whena statute conflicts with a supreme court rule on a matter ofprocedure, the court rule governs. People ex rel. Stamos v.Jones, 40 Ill. 2d 62, 65-66, 237 N.E.2d 495, 497-98 (1968);People v. Williams, 124 Ill. 2d 300, 306, 529 N.E.2d 558, 560(1988). Rather than tacitly creating a conflict between thestatute and rule, as we believe the Clark court does, the statuteand rule must be read in harmony so that the statute appliesunless superseded by the rule governing the filing of a criminalnotice of appeal.

We also fail to see why the fact that the posttrial motionand notice of appeal were filed on different days serves todistinguish the situation in Clark from that in Bounds. Ifanything, the last-filed document would seem to be a clearerreflection of the filer's intent. In Clark, defendant filed apro se notice of appeal, counsel filed the motion to reconsidersentence five days later and defendant filed a second pro senotice of appeal two weeks later. Applying the reasoning, citedwith approval in Clark, to the effect that a subsequently filedposttrial motion serves as an implicit dismissal of a previouslyfiled notice of appeal (Clark, 314 Ill. App. 3d at 185, ___N.E.2d at ___) would appear to dictate that a subsequently filednotice of appeal serves as an abandonment of a previously filedposttrial motion.

The court in Clark also rejected this court's application ofBounds in a direct appeal case, People v. Jenkins, 303 Ill. App.3d 854, 709 N.E.2d 265 (1999), in part because it concluded thatwe followed Bounds "reluctantly" and with "hesitation." Clark,314 Ill. App. 3d at 183-84, ___ N.E.2d at ___. Even if thatcharacterization is accurate, displeasure with the precedentprovides no license to evade it. Only the supreme court has theauthority to modify the operation of its rules of appellateprocedure. Significantly it has done so, addressing this preciseissue, through a recent amendment to Rule 606(b). See OfficialReports Advance Sheet No. 22 (November 3, 1999), R. 606(b), eff.December 1, 1999. As amended, the rule now provides:

"When a timely post[]trial or post[]sentencing motiondirected against the judgment has been filed by counselor by defendant, if not represented by counsel, anynotice of appeal filed before the entry of the orderdisposing of all pending post[]judgment motions shallhave no effect and shall be stricken by the trialcourt. *** This rule applies whether the timelypost[]judgment motion was filed before or after thedate on which the notice of appeal was filed."

Finally, irrespective of our rejection of Clark, its holdingand rationale have no application to this case. As in Bounds,defendant filed a posttrial motion and a notice of appeal simultaneously, rather than days apart. In addition, the posttrialmotion here did not raise any sentencing issue for reconsideration. Rather, defendant alleged trial counsel was ineffectivefor allowing him to stipulate to the existence of other offenseshe committed that formed the basis for revoking his probation. Hence, section 5-8-1(c) of the Unified Code simply does notapply.

Accordingly, we affirm the order revoking defendant'sprobation. The cause is remanded with directions to amend thejudgment order to reflect defendant's entitlement to an additional 45 days of sentence credit for time served, for 75 daystotal, and a $45 credit against his fine.

Affirmed as modified and remanded with directions.

GARMAN, J., concurs.

COOK, P.J., dissents.

PRESIDING JUSTICE COOK, dissenting:

The supreme court in Bounds held that when a motion toreconsider is filed simultaneously with a notice of appeal, thejurisdiction of the reviewing court attaches instanter, and thetrial court may not consider the motion to reconsider. Bounds,182 Ill. 2d at 3, 694 N.E.2d at 561 (involving a direct appeal tothe supreme court from the dismissal of a postconviction petition). Failure to consider the motion to reconsider in Boundshad little significance. The supreme court simply addressed theoriginal order on its merits, reversing the dismissal of thepetition. In People v. Jenkins, 303 Ill. App. 3d 854, 709 N.E.2d265 (1999), in contrast, we applied Bounds to prevent trial courtconsideration of a postsentencing motion, a motion which was verysignificant. After we ruled that the postsentencing motion couldnot be considered by the trial court, we found that the sentencing issues were forfeited for failure to file a timely postsen-tencing motion in the trial court. Jenkins, 303 Ill. App. 3d at860-61, 709 N.E.2d at 269. We apply the same reasoning todeprive defendant of his appeal in this case.

I respectfully dissent. The majority applies Bounds farbeyond what was intended by the supreme court. I would remandthis case to the trial court for consideration of defendant'spostsentencing motion and the other issues addressed by themajority.

Supreme Court Rule 303(a)(2) (155 Ill. 2d R. 303(a)(2)(effective February 1, 1994)) provides that the timely filing ofa posttrial motion, even if it is preceded by the filing of anotice of appeal, requires that the notice of appeal be withdrawnand the posttrial motion heard by the trial court. Rule303(a)(2) is a civil rule, but it has been applied in criminalcases. See, e.g., People v. Neal, 286 Ill. App. 3d 353, 354-55,675 N.E.2d 130, 131 (1996); People v. Rowe, 291 Ill. App. 3d1018, 1020, 684 N.E.2d 1368, 1370 (1997). We should follow thosecases here.

Finally, the supreme court amended Rule 606(b), effectiveDecember 1, 1999, to make it clear that postsentencing motions incases like this should be heard, and the notice of appeal shouldhave no effect. Official Reports Advance Sheet No. 22 (November3, 1999), R. 606(b), eff. December 1, 1999. Jenkins was wrong,and the supreme court has now said so. We should not follow it.