THIRD DIVISION
Date Filed: March 24, 2004

No. 1-02-3868

Following a conference pursuant to Supreme Court Rule 402(177 Ill. 2d R. 402), the respondent, J.T., admitted to adelinquency petition charging him with the offense of criminaldamage to property. J.T. was adjudicated a delinquent minor, andhe was sentenced to 18 months' probation. Thereafter, the Statefiled a petition to revoke J.T.'s probation. Following ahearing, the trial court revoked J.T.'s probation and committedhim to the Department of Corrections, Juvenile Division.

J.T. appeals, raising the following issues: whether thiscase should be remanded to allow J.T. to withdraw his admissionto criminal damage to property; whether the trial court erredwhen it sentenced J.T. to the Department of Corrections; andwhether J.T.'s sentence must be modified.

During the pendency of this appeal, the State filed a motionto strike J.T.'s first issue on the basis that J.T. failed tofile a notice of appeal from the trial court's order placing himon probation. We ordered the motion taken with this case. Forreasons set forth below, we now deny the motion and remand thiscase to the circuit court.

Following sentencing in this case, the trial courtadmonished J.T. as follows.

"So also you have the right to appeal. If within thenext thirty days - this starts the thirty-day period ofgrace between us - if within the next thirty days you becomeunhappy about the fact that you made an admission to thischarge or if you become unhappy with the penalty I haveimposed on you, you have the right to appeal to a highercourt, to the appellate court, the court that supervises me.

If you want to go up to that court, there is aprocedure you have to follow. You first have to file apetition before me asking me to allow you to withdraw youradmission. You file a petition saying you want to takeeverything back.

If I agree with your petition, I will strike out thispenalty. I will strike out the fact that you entered theplea of guilty. I will strike out the finding of guilty andyou will have to start all over by going to trial before me. That's the second chance that the law provides; but if Idisagree with your petition and say, no, everything was donewell. This is what we are supposed to leave it that way. Then it will go up to the higher court and they will look ateverything.

They will take this record this lady is typing up ortranscribing and they will read everything that was said inthe courtroom by the attorneys, by you, by me, to seewhether or not your rights were violated in any way.

Do you understand that?

[J.T.]: Yes, your Honor.

THE COURT: All right. Very well. So - and they willlook it over for you and also if you go up on appeal and youare unable to hire an attorney to represent you, the Courtwill appoint an attorney for you free of charge. That'syour right to have an attorney if you can't afford one. Also, we will provide you with a free copy of thetranscript. Do you under stand me, [J.T.]?

[J.T.]: Yes, your Honor.

THE COURT: All right. Appeal rights are given.

Any questions about your appeal rights?

[J.T.]: No."

Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) requires adefendant who wishes to appeal from a conviction following aguilty plea to first file in the circuit court a written motion to withdraw his guilty plea or to reconsider sentence. Anecessary antecedent, however, is that the defendant be given theadmonitions prescribed by Rule 605(b) (188 Ill. 2d R. 605(b)) toadvise him of those requirements. People v. Johnson, 332 Ill.App. 3d 81, 83, 773 N.E.2d 155 (2002). Both Rule 604(a) and Rule605(b) apply to juvenile proceedings. See In re J.L.R., 301 Ill.App. 3d 498, 499, 703 N.E.2d 977 (1998).

A defendant may attack a judgment at any time when the trialcourt has failed to give the proper admonishments. Johnson, 332Ill. App. 3d at 84. When a trial court fails to provide theproper Rule 605(b) admonishments and the defendant fails tofollow Rule 604(d), the cause should be remanded to the trialcourt so that the defendant can be given the correctadmonishments and allowed the opportunity to withdraw his guiltyplea. Johnson, 332 Ill. App. 3d at 85.

The State maintains that Rule 605(c) (188 Ill. 2d R. 605(c))applies to this case, since J.T. was sentenced pursuant to anegotiated plea. See People v. Dunn, 342 Ill. App. 3d 872, 880,795 N.E.2d 799 (2003) (plea of guilty according to termsdiscussed at Rule 402 conference was a negotiated plea). Whilewe agree with the State that Rule 605(c) rather than Rule 605(b)applies, this makes no difference in our analysis.

The giving of the admonishments in Rule 605(c), like thosein Rule 605(b), is a necessary antecedent to a defendant'srequired adherence to Rule 604(d). Therefore, like Rule 605(b),it follows that Rule 605(c) applies to juvenile proceedings.

Rule 605(c) requires that the trial court advise a defendantwho enters a plea of guilty substantially as follows:

"(1) that the defendant has the right to appeal;

(2) that prior to taking an appeal the defendant mustfile in the trial court, within 30 days of the date on whichsentence is imposed, a written motion asking to have the thejudgment vacated and for leave to withdraw the plea ofguilty, setting forth the grounds for the motion;

(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date willbe set on the charges to which the plea of guilty was made;

(4) that upon the request of the State any chargesthat may have been dismissed as a part of a plea agreementwill be reinstated and will also be set for trial;

(5) that if the defendant is indigent, a copy of thetranscript of the proceedings at the time of the defendant'splea of guilty and sentence will be provided without cost tothe defendant and counsel will be appointed to assist thedefendant with the preparation of the motions; and

(6) that in any appeal taken from the judgment on theplea of guilty any issue or claim of error not raised in themotion to vacate the judgment and to withdraw the plea ofguilty shall be deemed waived." 188 Ill. 2d R. 605(c).⁽¹⁾

Trial courts are held to strict compliance with Rule 605(c)requirements. Dunn, 342 Ill. App. 3d at 881. Although the trialcourt is not required to use the exact language of the rule, theadmonitions are insufficient where the trial court leaves out thesubstance of the rule. Dunn, 343 Ill. App. 3d at 881.

In Dunn, the trial court informed the defendant of his rightto appeal, the need to file a written motion to withdraw hisguilty plea within 30 days of sentencing, the waiver of anyissues not raised in such motion and, if indigent, his right to afree transcript and to an attorney free of charge. This courtfound that the above admonishments substantially complied withRule 605(c) even though the defendant was not advised that acourt-appointed attorney would be available to assist thedefendant with postplea motions. Dunn, 342 Ill. App. 3d at 882(distinguishing People v. Lloyd, 338 Ill. App. 3d 379, 788 N.E.2d1169 (2003), in which case the trial court failed to advise thedefendant that an attorney could be appointed for him).

In the present case, in addition to failing to advise J.T.that he could have an attorney assist him in the preparations ofpostappeal motions, the trial court failed to advise J.T. that:he was required to set forth grounds for the withdrawal of hisadmission to the petition in the motion to withdraw, that hewaived any grounds he did not raise in the motion and that theState could reinstate charges against him that were dismissed aspart of the plea negotiations. Compare Dunn, 342 Ill. App. 3d at882 (trial court advised the defendant that his motion towithdraw must set forth grounds for allowing the withdrawal ofthe guilty plea).

Our recent decision in People v. Crump, 344 Ill. App. 3d558, 801 N.E.2d 1 (2003), is distinguishable from the presentcase. In Crump, this court rejected the defendant's argumentthat the trial court had not substantially complied with Rule605(c) when it failed to advise him that any allegation notraised in a motion to withdraw his plea of guilty was waived andthat any previously dismissed charges could be reinstated if hismotion to withdraw was successful.

However, in the present case, the trial court failed toadvise J.T. that he had to state the grounds for withdrawing hisadmission to the petition in the motion to withdraw. Had J.T.followed the trial court's admonishments, his motion to withdrawwould have been subject to dismissal and would have precluded theconsideration of any issue on appeal. This is especially true inthis case where J.T. was not advised that he could have theassistance of counsel in preparing his postplea motions.

We conclude from our review of the record that theadmonishments given by the trial court in this case did notsubstantially comply with the required admonitions of Rule605(c).

Inasmuch as J.T. has never filed a motion to withdraw hisadmission to the petition, we will not retain jurisdiction overthis case. See Johnson, 332 Ill. App. 3d at 86.

Accordingly, we remand this case to the circuit court forJ.T. to be admonished in accordance with Rule 605(c) in orderthat he may have an opportunity to file a motion to withdraw hisadmission to the petition under Rule 604(d). The circuit courtshall appoint counsel to assist J.T. if the court finds that heis indigent. See Johnson, 332 Ill. App. 3d at 86.

Following the procedure set forth in Johnson, if the circuitcourt grants J.T.'s postplea motion and vacates his originalsentence of probation, the court should then vacate J.T.'scommitment to the Department of Corrections that resulted fromthe violation of his probation.⁽²⁾ If the circuit court deniesJ.T.'s postplea motion so as to reconfirm the original sentenceof probation, the sentence imposed for his probation violationshall stand. J.T. may then appeal the denial of his new postpleamotion, should he choose to do so, and the issues relating to hisprobation revocation raised in this appeal.

The State's motion to strike is denied and the cause isremanded with directions.

Remanded with directions.

HOFFMAN, P.J., and SOUTH, J., concur.