People v. Giles
| Decision Date | 12 June 1992 |
| Docket Number | Nos. 2-90-0805,2-90-0806,s. 2-90-0805 |
| Citation | 230 Ill.App.3d 730,596 N.E.2d 53,172 Ill.Dec. 774 |
| Parties | , 172 Ill.Dec. 774 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kwami GILES, Defendant-Appellant. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tommie C. DANIELS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Elgin, for Kwami Giles.
Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, David A. Bernhard, State's Atty. Appellate Prosecutor, Elgin, for the people.
The defendants, Tommie C. Daniels and Kwami Giles, were jointly charged by information in the circuit court of Lake County with one count of armed robbery (Ill.Rev.Stat.1989, ch. 38, par. 18-2(a)), one count of aggravated battery (Ill.Rev.Stat.1989, ch. 38, par. 12-3(a)) and one count of theft (Ill.Rev.Stat.1989, ch. 38, par. 16-1(a)(1)). Both defendants pleaded guilty to the armed robbery charges, and the aggravated battery and theft counts were dismissed. Daniels was sentenced to 15 years in prison and Giles to an 8 1/2-year term of imprisonment. Both defendants appeal, and their cases have been consolidated due to the similarity of the issues raised.
The issue raised by Daniels is whether the trial court erred in not considering a motion to reconsider his sentence filed by his counsel because he had subsequently filed, pro se, a notice of appeal. The issue presented by Giles is whether the trial court erred in not considering a motion to withdraw his guilty plea filed by his counsel because he had subsequently filed, pro se, a notice of appeal.
The facts relevant to this appeal are as follows. The State filed a joint information charging both defendants with armed robbery, aggravated battery and theft based on their theft of a Chevrolet Blazer by the use of force and while armed with a gun. Following a conference pursuant to Supreme Court Rule 402 (134 Ill.2d R. 402), each defendant pleaded guilty to the armed robbery charge. As a factual basis for the pleas, Giles testified that he was driving the victim's vehicle, and Daniels testified he pointed a BB gun at the victim and also hit the victim in the head with the gun. The victim jumped out of his vehicle, and Giles continued to drive it.
On June 26, 1990, Daniels was sentenced to 15 years' imprisonment, and Giles was sentenced to an 8 1/2-year term of imprisonment. The court advised the defendants at the sentencing hearing that if they wished to appeal they "must within 30 days file with the Court [a] motion for reconsideration of sentence or a motion to withdraw [their] plea[s] of guilty." The court further admonished the defendants that if they did not file either a motion to reconsider or a motion to withdraw before appealing then the appellate court would probably dismiss their appeals. Both defendants stated they understood the court's admonishments.
On July 5, 1990, Giles, by his attorney, filed a motion to withdraw his guilty plea. On July 11, 1990, Daniels' attorney filed a motion to reconsider the sentence on behalf of Daniels. Giles, on July 12, 1990, mailed a signed, notarized notice of appeal to the circuit clerk of Lake County. He included a hand-written note stating that he had "motioned to appeal [his] case so enclosed is the original notice and * * * a copy to the State." Giles' notice of appeal and note are dated July 11, 1990. On July 12, 1990, Daniels also mailed a signed, notarized notice of appeal to the circuit clerk of Lake County. Accompanying the notice of appeal was a handwritten note stating that "[t]his is my notice of appeal." The notice of appeal and note are dated July 11, 1990.
At a hearing on July 19, 1990, the court acknowledged that each defendant's file contained a notice of appeal. The following colloquy took place:
The minute order for July 19, 1990, states that the clerk of the court was directed to prepare and file a notice of appeal on behalf of each defendant. The record contains a notice of appeal for each defendant filed on July 19, 1990, and signed by the circuit clerk of Lake County.
Each defendant contends on appeal that his case should be remanded for the trial court to consider his post-trial motion. Each defendant argues that the trial court, pursuant to Supreme Court Rule 309 (134 Ill.2d R. 309), should have dismissed his pro se notice of appeal and considered his post-trial motion. Each defendant also maintains he was denied the effective assistance of counsel because his attorney did not move to dismiss his post-trial motion pursuant to Rule 309 or at the very least request time to consult with him about the motion and the notice of appeal.
In People v. Whigam (1990), 202 Ill.App.3d 252, 147 Ill.Dec. 556, 559 N.E.2d 896, the appellate court held that under Rule 606(b) (134 Ill.2d R. 606(b)) a notice of appeal filed before the disposition of a motion directed to the final judgment in a criminal case is premature. (202 Ill.App.3d at 257, 147 Ill.Dec. 556, 559 N.E.2d 896.) While Rule 606(b) expressly excepts the provisions of Rule 604(d) from its time requirements for filing a notice of appeal from the entry of a final judgment, we find the reasoning of Whigam to be particularly applicable to this case as well. We see no reason to differentiate between a motion attacking a final judgment and a motion filed pursuant to Rule 604(d) seeking reconsideration of a sentence or asking to withdraw a guilty plea for purposes of determining the efficacy of a notice of appeal filed before the motion has been disposed of.
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