{ "id": 4278713, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "2008-06-27", "docket_number": "No. 4-06-0274", "first_page": "791", "last_page": "794", "citations": [ { "type": "official", "cite": "383 Ill. App. 3d 791" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "859 N.E.2d 1094", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "1100" } ], "opinion_index": 0 }, { "cite": "369 Ill. App. 3d 294", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267835 ], "year": 2006, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0294-01" ] }, { "cite": "885 N.E.2d 1053", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2008, "pin_cites": [ { "page": "1058-59" }, { "page": "1059" }, { "page": "1059" }, { "page": "1058-59" }, { "page": "1059" } ], "opinion_index": 0 }, { "cite": "228 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706478 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "104-05" }, { "page": "105" }, { "page": "105-06" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0095-01" ] }, { "cite": "871 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "224 Ill. 2d 589", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "867 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "1153-54" } ], "opinion_index": 0 }, { "cite": "371 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268075 ], "year": 2007, "pin_cites": [ { "page": "820-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/0817-01" ] } ], "analysis": { "cardinality": 439, "char_count": 8408, "ocr_confidence": 0.824, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14360991702605055 }, "sha256": "8f7ee1c04eab76981c79b1d9e01251a94ed04ace4d595fff45eb9e45893a96e4", "simhash": "1:a23895ed7737f851", "word_count": 1427 }, "last_updated": "2023-07-14T19:46:05.228492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. SMITH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nThe Supreme Court of Illinois has remanded this cause to our court to address a jurisdictional question it raised with regard to defendant\u2019s notice of appeal. We address the supreme court\u2019s question and vacate our March 13, 2007, opinion.\nI. BACKGROUND\nOn November 10, 2004, pursuant to a plea agreement, defendant, Edward J. Smith, pleaded guilty to possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c)(2) (West 2002)), and the trial court sentenced him to 10 years\u2019 imprisonment. After a January 31, 2005, hearing, the court denied defendant\u2019s amended motion to withdraw his guilty plea, and defendant appealed. In November 2005, this court affirmed the trial court\u2019s judgment. People v. Smith, No. 4 \u2014 05\u20140104 (November 1, 2005) (unpublished order under Supreme Court Rule 23).\nIn February 2006, defendant filed a pro se pleading entitled \u201cmotion to correct sentence,\u201d in which he argued his two-year term of mandatory supervised release (MSR) (actually a three-year term (see 730 ILCS 5/5 \u2014 8\u20141(d)(1) (West 2002))) was void because it was unconstitutional. Defendant requested the trial court to \u201cencompass\u201d his MSR term into his sentence. On February 21, 2006, the court sua sponte denied the motion, noting the pleadings were \u201cfrivolous and patently without merit.\u201d The court also sent a letter to the warden of the prison where defendant was housed, informing the warden of its finding and noting section 3 \u2014 6\u20143(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3 \u2014 6\u20143(d) (West Supp. 2003)) with regard to defendant\u2019s good-conduct credit.\nOn March 20, 2006, defendant filed a notice of appeal. The notice of appeal listed the date of judgment appealed as November 10, 2004, and labeled the nature of the order appealed as a \u201cconviction.\u201d In a March 21, 2006, docket entry, the trial court directed the circuit clerk to prepare and file a notice of appeal and appointed the office of the State Appellate Defender (OSAD) to represent defendant. In a written order dated March 21, 2006, and filed March 23, 2006, the trial court appointed OSAD to represent defendant and ordered the circuit clerk to prepare a notice of appeal. On March 23, 2006, the circuit clerk filed a document certifying she sent a copy of the attached notice of appeal to various offices, including this court. A notice of appeal was not attached to the copy of the circuit clerk\u2019s certification in the appellate record, and this court\u2019s records indicate we only received defendant\u2019s pro se notice of appeal.\nOn appeal, defendant contended the trial court erred by finding his February 2006 \u201cmotion to correct sentence\u201d was a \u201clawsuit\u201d as defined by section 3 \u2014 6\u20143(d)(2) of the Unified Code (730 ILCS 5/3\u2014 6 \u2014 3(d)(2) (West Supp. 2003)). While this court always examines the record to verify our jurisdiction, we have normally, in the past, only expressly addressed our jurisdiction when raised by the parties or when we have lacked jurisdiction. Since defendant\u2019s appeal is in a criminal matter and the rules governing criminal appeals also apply to postconviction proceedings (see 134 Ill. 2d R. 651(d)), this court believed it had jurisdiction under Supreme Court Rule 606 (210 Ill. 2d R. 606), which only requires substantial compliance with the form notice set forth in subsection (d) of that rule (210 Ill. 2d R. 606(d)). Moreover, we note the facts of this case clearly indicate what order the pro se defendant was appealing, and the State, as appellee, has never made a claim to the contrary. Thus, we entered an opinion that found defendant\u2019s motion to correct sentence was a postconviction petition, rejected defendant\u2019s \u201clawsuit\u201d argument, and affirmed the trial court\u2019s dismissal. People v. Smith, 371 Ill. App. 3d 817, 820-21, 867 N.E.2d 1150, 1153-54 (2007).\nDefendant filed a petition for leave to appeal to the Supreme Court of Illinois, which that court granted. People v. Smith, 224 Ill. 2d 589, 871 N.E.2d 60 (2007). Citing Supreme Court Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)), the supreme court found defendant\u2019s March 20, 2006, pro se notice of appeal was deficient and did not confer jurisdiction on this court to review defendant\u2019s appellate contentions. People v. Smith, 228 Ill. 2d 95, 104-05, 885 N.E.2d 1053, 1058-59 (2008). The court further noted that if defendant had filed an amended notice of appeal under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)), the jurisdictional defect might have been corrected and the appellate court might have acquired jurisdiction. Smith, 228 Ill. 2d at 105, 885 N.E.2d at 1059. Thus, the supreme court remanded the cause to this court to consider the jurisdictional question it raised regarding defendant\u2019s notice of appeal. Smith, 228 Ill. 2d at 105-06, 885 N.E.2d at 1059. On March 24, 2008, the supreme court denied a petition for rehearing. We now address the supreme court\u2019s question.\nII. ANALYSIS\nA. Motion Taken With the Case\nOn remand, defendant filed a motion to order the trial court to amend the notice of appeal nunc pro tunc to reflect the exact nature and date of the appealed order. In the alternative, defendant requested this court to allow him to brief the issue of jurisdiction.\nGiven the procedural posture of this case, we decline to entertain defendant\u2019s motion and thus dismiss it. First, we note defendant raised similar arguments in his petition for rehearing in the supreme court, and the supreme court denied the petition. Moreover, the supreme court remanded the cause with specific instructions to ascertain whether an amended notice of appeal was filed and did not instruct us to entertain a motion to cure the defect it found. Further, while we originally concluded this court had jurisdiction under Rule 606, the supreme court\u2019s analysis cites Rule 303(b)(2) (210 Ill. 2d R. 303(b)(2)) and cases that address Rule 303(b)(2). See Smith, 228 Ill. 2d at 104-OS, 885 N.E.2d at 1058-59. Thus, we do not construe the supreme court\u2019s opinion as authorizing us to conclude we were vested with jurisdiction under Rule 606.\nB. Amendment\nAs stated, the supreme court has remanded the cause for an answer to a very specific question, whether defendant amended his notice of appeal under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)). The record on appeal contains only one notice of appeal, which is defendant\u2019s pro se notice of appeal.\nWe do note that, on the day after defendant filed his March 20, 2006, pro se notice of appeal, the trial court ordered the circuit clerk to prepare and file a notice of appeal on defendant\u2019s behalf. Under Rule 303(a)(1) (210 Ill. 2d R. 303(a)(1)), defendant had until March 23, 2006, to file a timely notice of appeal. Even if the circuit clerk had filed a notice of appeal but not designated it as an amended notice, we could have regarded it as such since, under Rule 303(b)(5) (210 Ill. 2d R. 303(b)(5)), an appellant may amend the notice of appeal without leave of court within the period for filing the notice of appeal. See Hammond v. Firefighters Pension Fund, 369 Ill. App. 3d 294, 302, 859 N.E.2d 1094, 1100 (2006). However, neither the record on appeal nor our court file contains a notice of appeal prepared by the circuit clerk. Thus, we find an amended notice of appeal was not filed in this case.\nAccordingly, based on the supreme court\u2019s opinion, we lacked jurisdiction to entertain defendant\u2019s appeal from the February 21, 2006, summary dismissal of his motion to correct sentence, and our prior opinion should be vacated.\nIII. CONCLUSION\nFor the reasons stated, we find defendant did not file an amended notice of appeal. Thus, under the supreme court\u2019s decision in Smith, 228 Ill. 2d at 106, 885 N.E.2d at 1059, our March 13, 2007, opinion addressing defendant\u2019s appeal is vacated for lack of jurisdiction.\nQuestion answered and opinion vacated.\nAPPLETON, PJ., and McCULLOUGH, J., concur.", "type": "majority", "author": "JUSTICE TURNER" } ], "attorneys": [ "Gary R. Peterson and Colleen Morgan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Aimee Sipes Johnson, all 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. EDWARD J. SMITH, Defendant-Appellant.\nFourth District\nNo. 4\u201406\u20140274\nOpinion filed June 27, 2008.\nModified on denial of rehearing July 28, 2008.\nGary R. Peterson and Colleen Morgan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Aimee Sipes Johnson, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0791-01", "first_page_order": 807, "last_page_order": 810 }