{
  "id": 1281474,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WADE, Defendant-Appellant",
  "name_abbreviation": "People v. Wade",
  "decision_date": "2001-12-18",
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          "parenthetical": "\"because defendant's proof of certificate of service recited a timely mailing date, the defendant's motion for withdrawal of his guilty plea was timely\""
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          "parenthetical": "striking the motion would have been tantamount to denying it because it could not have been refiled if it was stricken more than 30 days after the judgment"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WADE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nDefendant Billy Wade filed this appeal after the trial court struck as untimely, \u201cfor the time being,\u201d defendant\u2019s pro se motion to withdraw his guilty pleas and reconsider his sentences. Defendant contends on appeal that the cause must be remanded for a hearing on his motion, which, in relevant part, bore proof that it was timely mailed. The State argues that the appeal should be dismissed for lack of jurisdiction because no final order was entered regarding defendant\u2019s motion. We conclude that we do have jurisdiction and that the cause must be remanded for a hearing on the merits of defendant\u2019s motion.\nDefendant, represented by private counsel, entered negotiated pleas of guilty on August 25, 1999, to seven Class X charges of delivery of a controlled substance and one Class 1 charge of possession of a controlled substance with intent to deliver. He was sentenced to concurrent 12-year prison terms on the Class X charges and a consecutive 4-year prison term on the Class 1 charge.\nDefendant then filed a pro se \u201cMotion to Withdraw Plea and/or In the Alternative Reconsider Sentence.\u201d The second page of the motion contained a handwritten \u201cproof of service\u201d section in which defendant, \u201cbeing first sworn on oath,\u201d asserted the motion was placed in a stamped envelope, addressed as shown (to the clerk of the court and to the State\u2019s Attorney\u2019s office), and deposited in the United States mail at the correctional center on September 23, 1999. A notary seal and signature beneath the proof of service showed that the motion was notarized on September 23, 1999. The motion was not file stamped.\nDefendant also filed a separate pro se motion for reduction of his sentence, which was notarized on September 23, 1999, and file stamped on September 29, 1999. In addition, the record contains a letter dated November 13, 1999, and file stamped on November 17, 1999, from defendant to the clerk of the court, in which defendant asserted he filed a motion to withdraw his plea and in the alternative to reconsider his sentence on September 23, 1999, but he had not heard anything concerning the status of his motion. The record also contains a handwritten note from defendant, dated December 3, 1999, \u201cto inform the clerk\u201d that he sent two motions to the clerk and the State\u2019s Attorney\u2019s office and was sending them again because he had not heard from anyone, including his attorney.\nOn March 7, 2000, when defendant\u2019s case was called, an assistant public defender appeared for defendant and told the court that he had contacted defendant\u2019s trial attorney regarding the allegations in defendant\u2019s pro se motions. Defendant\u2019s former attorney said he had \u201cno recollection\u201d of defendant\u2019s allegation that he was promised double credit for time in custody. He also said he did not intend to \u201cget involved again.\u201d The trial court asked the assistant public defender if defendant\u2019s motions were timely filed. He responded that there were no timely file-stamped motions and no timely filed postmarks from the penitentiary. The assistant public defender said that defendant said he would contact the penitentiary and obtain proof of his timely filed mailing, but he had not yet received the proof. The trial court stated, \u201cWhen we receive those, we can have them put on the call. For the time being, motion stricken, not timely filed. Off call.\u201d The memorandum of orders for that date states, \u201cMotion Stricken Not Timely Filed. Off Call as to Co 1.\u201d\nDefendant now appeals, contending that the cause must be remanded for a hearing on his timely filed motion. The State asserts that we have no jurisdiction to hear the appeal because there was no final order entered.\nDefendant maintains we have jurisdiction under Supreme Court Rule 603 (134 Ill. 2d R. 603), which provides that, except for cases in which a statute has been held invalid or the defendant has been sentenced to death, all appeals in criminal cases shall be taken to the appellate court. This rule does not provide an independent basis for appellate review and merely states which court should hear an otherwise appealable case. People v. Truitt, 175 Ill. 2d 148, 151, 676 N.E.2d 665 (1997). Subject to certain exceptions, this court is without jurisdiction to review judgments or orders which are not final. People v. Baptist, 284 Ill. App. 3d 382, 388, 675 N.E.2d 398 (1996); accord People v. Hobbs, 301 Ill. App. 3d 581, 585, 703 N.E.2d 943 (1998).\nSupreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), which deals with an appeal by a defendant from a judgment entered on a plea of guilty, relevantly states, \u201cIf the motion [to withdraw the plea or reconsider the sentence] is denied, a notice of appeal from the judgment and sentence shall be filed within [30 days], measured from the date of entry of the order denying the motion.\u201d\nWe must assess the \u201csubstantive effect of the order rather than its form.\u201d Truitt, 175 Ill. 2d at 152; People v. Scholin, 62 Ill. 2d 372, 373, 342 N.E.2d 388 (1975). In this case, the trial court stated, \u201cFor the time being, motion stricken, not timely filed.\u201d We conclude we have jurisdiction over this appeal because, despite the language \u201cfor the time being,\u201d the trial court struck defendant\u2019s motion, specifically finding it \u201cnot timely filed.\u201d 188 Ill. 2d R 604(d); see People v. Dragaj, 47 Ill. App. 3d 86, 88-89, 361 N.E.2d 792 (1977) (an appellate court is not deprived of. jurisdiction where the charge has been stricken with leave to reinstate); see also Yazzin v. Meadox Surgimed, Inc., 224 Ill. App. 3d 288, 291, 586 N.E.2d 533 (1991) (striking the motion would have been tantamount to denying it because it could not have been refiled if it was stricken more than 30 days after the judgment); Workman v. St. Therese Medical Center, 266 Ill. App. 3d 286, 291, 640 N.E.2d 349 (1994) (distinguishing Yazzin on the ground that in Workman the stricken motion was reinstated as a pending motion).\nThe basis for defense counsel\u2019s comments and the trial court\u2019s finding that defendant\u2019s motion was untimely is unclear. In fact, the record refutes the conclusion that defendant\u2019s motion was untimely. Defendant\u2019s proof of service stated he placed the motion in a stamped, addressed envelope in the prison mail on September 23, 1999 (within 30 days), and the motion bearing the proof of service was notarized on that date. See People v. Saunders, 261 Ill. App. 3d 700, 704-05, 633 N.E.2d 1340 (1994) (depositing in prison mail is prisoner\u2019s only option, and he must rely on institution\u2019s notary public); People v. Aldridge, 219 Ill. App. 3d 520, 523, 580 N.E.2d 158 (1991) (\u201cbecause defendant\u2019s proof of certificate of service recited a timely mailing date, the defendant\u2019s motion for withdrawal of his guilty plea was timely\u201d). Defendant\u2019s affidavit within his motion established that he placed the motion in a stamped, addressed envelope and deposited it in the United States mail at the correctional center on September 23, 1999. The proof of service complied with Supreme Court Rules 11 (manner of serving papers) and 12 (proof of service). 145 Ill. 2d Rs. 11, 12; see In re Plank, 169 Ill. App. 3d 411, 414, 523 N.E.2d 614 (1988).\nWe reverse the trial court\u2019s order and remand for a hearing on the merits of defendant\u2019s motion.\nReversed and remanded.\nBURKE, EJ., and GORDON, J., concur.",
        "type": "majority",
        "author": "JUSTICE CAHILL"
      }
    ],
    "attorneys": [
      "Rita A. Fry, Public Defender, of Chicago (Ira Sheffey, Assistant Public Defender, of counsel), for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Jennifer Streeter, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WADE, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1 \u2014 00\u20141424\nOpinion filed December 18, 2001.\nRita A. Fry, Public Defender, of Chicago (Ira Sheffey, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Jennifer Streeter, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0940-01",
  "first_page_order": 958,
  "last_page_order": 961
}