{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. WALLER, Defendant-Appellant",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. WALLER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE SLATER\ndelivered the opinion of the court:\nDefendant Daniel B. Waller appeals from his eight-year, extended-term sentence imposed for aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(d) (West 1998)). We remand with directions.\nThe record shows that defendant committed the instant offense while on probation for a prior conviction of criminal sexual assault (720 ILCS 5/12 \u2014 13 (West 1998)). Pursuant to pretrial negotiations, defendant pleaded guilty in exchange for the State\u2019s promise to forego filing a petition to revoke probation and to recommend an 11-year sentencing cap. At the guilty plea proceedings, defendant was admonished that he was eligible for extended-term sentencing of up to 14 years because of his prior conviction. The State presented a factual basis, and the court determined that his plea was voluntary.\nFollowing a sentencing hearing, the court imposed an eight-year, extended-term sentence of imprisonment. The court then admonished defendant that if he wished to appeal, he would first have to file a written motion to reconsider sentence or to withdraw his guilty plea. On February 8, 1998, defendant moved for reconsideration of his sentence. He also filed an affidavit of defense counsel stating that counsel had consulted with defendant, examined the court file and report of proceedings and made necessary amendments to defendant\u2019s postplea motion. The trial court heard and denied defendant\u2019s motion, and he appeals.\nDefendant argues that: (1) he was not required to withdraw his guilty plea in order to appeal from the court\u2019s order denying his motion to reconsider sentence; (2) the court abused its sentencing discretion; and (3) in the alternative, the cause should be remanded to allow defendant to withdraw his guilty plea.\nThe issues before us have been resolved by several recent decisions of the Illinois Supreme Court. In People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996), the court ruled that a defendant pleading guilty pursuant to a negotiated guilty plea agreement must file a motion to withdraw his plea and vacate his conviction pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) before he may appeal from his sentence. A motion to reconsider sentence alone is insufficient. Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. This rule was extended to partially negotiated guilty pleas involving a sentencing cap agreement in People v. Linder, 186 Ill. 2d 67, 708 N.E.2d 1169 (1999).\nAlthough the defendants in Evans and Linder were not allowed an opportunity to return to the circuit court to file the required motion (see Evans, 174 Ill. 2d at 334, 673 N.E.2d at 251; Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173), the court subsequently granted such relief in People v. Diaz, 192 Ill. 2d 211, 735 N.E.2d 605 (2000).\nIn Diaz, the defendant entered into a partially negotiated guilty plea and moved to reconsider his sentence in 1996, before Evans was decided. The court there noted that the trial court had admonished defendant pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)) that he had to file a motion to withdraw his guilty plea or reconsider sentence before he could appeal from his sentence. The admonishment was misleading since a motion to reconsider sentence was insufficient to perfect an appeal from a negotiated guilty plea after Evans. Therefore, fundamental fairness dictated that the court remand the cause to the circuit court with instructions to (1) vacate the order denying the defendant\u2019s motion, (2) properly admonish the defendant, and (3) allow him to file a motion to withdraw and vacate judgment, if he so chose. Diaz, 192 Ill. 2d at 227-28, 735 N.E.2d at 613.\nClearly, defendant\u2019s partially negotiated plea in this case falls within the rule of Linder. Pursuant to Linder, this appeal may not proceed because defendant has not moved to withdraw his guilty plea and vacate judgment. However, as in Diaz, defendant received Rule 605(b) admonishments concerning his right to appeal that were rendered legally inaccurate by Evans and Linder.\nOn analogous facts, this court has remanded to allow the defendant an opportunity to file the required Rule 604(d) motion. People v. Didier, 306 Ill. App. 3d 803, 715 N.E.2d 321 (1999); accord People v. Foster, 308 Ill. App. 3d 286, 719 N.E.2d 1163 (1999). Pursuant to Diaz, a defendant under these circumstances is entitled to proper admonishments of his appeal rights and an opportunity to withdraw his guilty plea and vacate judgment if he chooses to do so. Supreme Court Rule 605 has been amended and currently provides accurate admonishments of a defendant\u2019s appeal rights following a negotiated plea of guilty. Official Reports Advance Sheet No. 23 (November 15, 2000), R. 605(c), eff. November 1, 2000.\nTherefore, we remand the cause to the circuit court with directions to vacate the judgment denying defendant\u2019s motion to reconsider sentence, to properly admonish defendant pursuant to Supreme Court Rule 605(c) and to allow him to file a new postplea motion if he so chooses.\nCause remanded with directions.\nHOMER and KOEHLER, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE SLATER"
      }
    ],
    "attorneys": [
      "Kerry J. Sluis, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Kevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and John Wood, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. WALLER, Defendant-Appellant.\nThird District\nNo. 3-99-0284\nOpinion filed November 16, 2000.\nKerry J. Sluis, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nKevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and John Wood, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0390-01",
  "first_page_order": 410,
  "last_page_order": 413
}