Nos. 2--03--1045 & 2--04--0476 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Victor M. Barcik, and his fiancée's evening of drinking and bowling endedunpleasantly when defendant was once again arrested for driving under the influence (DUI). Aftera jury trial, defendant was convicted of two counts each of aggravated DUI (625 ILCS 5/11--501(a)(2), (c--1)(3) (West 2002)) and enhanced driving while his license was revoked (DWLR) (6255/6--303(a), (d) (West 2002)). Defendant was sentenced to seven years' imprisonment for DUI torun concurrently with a six-year sentence for DWLR. In this consolidated appeal, defendant arguesthat (1) his multiple convictions for each of his crimes violate the "one-act, one-crime" rule; (2) hisextended sentence for DWLR is improper; and (3) the trial court erred in summarily dismissing hispostconviction petition. For the reasons that follow, we vacate one of defendant's convictions of bothDUI and DWLR, remand his case for resentencing on the remaining count of DWLR, and dismiss hisappeal from the dismissal of his postconviction petition.

Shortly after midnight on March 1, 2003, defendant was pulled over by Sgt. Charles Yanz ofthe Wheaton police department, after Sgt. Yanz watched defendant's car, which had one headlightout, veer off the road, go onto a curb, go over the curb, and then crash back down onto the road. When Sgt. Yanz approached defendant's car, he smelled a strong odor of alcohol. In the car withdefendant were his fiancée, Anita Mazzochi, and two other men. Defendant explained that he andhis companions were coming from the Wheaton Bowl, a local bowling alley, and that he was drivingbecause the others were too "messed up" to drive. As it turned out, after defendant failed severalfield sobriety tests, Sgt. Yanz arrested him for DUI.

At trial, defendant claimed that he was sober at the time of the arrest and that he was forcedto drive because everyone else was drunk. Apparently unconvinced, the jury found him guilty ofDUI. And because defendant's license was already revoked at the time of the incident, the jury alsofound him guilty of DWLR. In all, defendant was convicted of the following: (1) driving drunk whenhis license was revoked for reckless homicide; (2) driving drunk when his license was revoked forthree or more DUI convictions; (3) driving with a revoked license when his license had been revokedfor DUI; and (4) driving with a revoked license when his license had been revoked for recklesshomicide.

On September 15, 2003, the trial court sentenced defendant to seven years for DUIconcurrent with six years for DWLR. Two days later, on September 17, defendant filed a timelynotice of appeal (No. 2--03--1045).

After defendant filed his notice of appeal, on September 18, the trial court held anotherhearing in defendant's case. At that hearing, the trial court sua sponte vacated one of defendant'sconvictions of DUI and both of his convictions of DWLR and merged all of defendant's convictionsinto the sole remaining DUI conviction.

About seven months later, in April 2004, defendant filed in the trial court a petition pursuantto the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). In his petition,defendant claimed that it was his lawyer's fault that he had been convicted of DUI. On April 9, thetrial court dismissed defendant's petition as frivolous and patently without merit. See 725 ILCS5/122--2.1(a)(2) (West 2002). Over 30 days later, on May 11, defendant filed a notice of appeal (No.2--04--0476) to which he attached a handwritten note. In the upper right-hand corner of that notethe notation "5-5-04" appears.

On October 25, 2004, this court granted defendant's motion to consolidate his appeals. Wewill now discuss the issues that they present.

Defendant argues that his convictions for two counts of DUI and two counts of DWLRviolate the "one-act, one-crime" rule. Pursuant to that rule, multiple convictions are improper if basedupon the same physical act. People v. Latto, 304 Ill. App. 3d 791, 806 (1999). Whether multipleconvictions violate the rule is a question of law, which we review de novo. Village of Sugar Grovev. Rich, 347 Ill. App. 3d 689, 698 (2004).

Here, both of defendant's convictions for DUI were based on his drunk driving on the nightof his arrest. Additionally, both of his convictions for DWLR were based on the fact that defendant'slicense was revoked at the time. Stated differently, defendant received multiple convictions for oneact of drunken driving, and defendant received multiple convictions for one act of driving while hislicense was revoked. See People v. DiPace, 354 Ill. App. 3d 104, 116 (2004) (noting that DUI andDWLR are separate acts). Thus, defendant's multiple convictions for DUI, as well as his multipleconvictions for DWLR, violate the "one-act, one-crime" rule. See Latto, 304 Ill. App. 3d at 806.

Apparently recognizing a problem, the trial court, at a hearing held three days after defendantwas sentenced, sua sponte modified its judgment. Specifically, the trial court merged all ofdefendant's convictions into one count of DUI. There are two problems with the trial court's attemptto correct the judgment against defendant.

First, and dispositively, the trial court did not have jurisdiction to modify the judgment againstdefendant. The filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance. Peoplev. Kolzow, 332 Ill. App. 3d 457, 459 (2002). Thereafter, the trial court may not enter an ordermodifying the judgment being appealed. People v. Slover, 339 Ill. App. 3d 1086, 1090 (2003). Here,defendant filed his notice of appeal on September 17. Thereafter, on September 18, the trial courtentered its order modifying the judgment against defendant. In other words, the trial court modifiedthe judgment after defendant had filed his notice of appeal. Thus, the trial court did not havejurisdiction to modify the judgment and its order doing so is void.

Second, in addition to being void, the trial court's modification was substantively erroneous. The trial court attempted to merge all of defendant's convictions into one count of DUI. However,DWLR does not merge into DUI. DiPace, 354 Ill. App. 3d at 117. Instead, defendant's two DUIcounts should have merged into one DUI count, and his two DWLR counts should have merged intoone DWLR count. Accordingly, we vacate one of defendant's convictions of DUI and one of hisconvictions of DWLR, leaving defendant convicted of one count each of DUI and DWLR.

The trial court sentenced defendant to seven years for DUI and an extended-term sentence ofsix years for DWLR. When a defendant is convicted of multiple offenses that are all part of acontinuing course of conduct, he or she may be sentenced to an extended-term sentence only forthose offenses that are within the most serious class. People v. Smith, 345 Ill. App. 3d 179, 190(2004). Here, after drunkenly driving while his license was revoked, defendant was convicted ofDWLR and DUI. That is, defendant was convicted of two offenses that were part of a single,continuing course of conduct. Importantly, because of defendant's prior convictions, DUI is a Class2 felony (625 ILCS 5/11--501(a)(2), (c--1)(3) (West 2002)), while DWLR is a Class 4 felony (625ILCS 5/6--303(a), (d--1) (West 2002)). That is to say, DUI is a more serious offense than DWLR. Notwithstanding this fact, the trial court sentenced defendant to an extended term of six years forDWLR. See 730 ILCS 5/5--8--2(a)(6) (West 2002). This was improper. See Smith, 345 Ill. App.3d at 190. Instead, the trial court should have sentenced defendant to a nonextended term of betweenone and three years for his DWLR conviction. See 730 ILCS 5/5--8--1(a)(7) (West 2002). Weremand defendant's case so that the trial court may do so. To summarize, defendant's multiple convictions for DUI and his multiple convictions forDWLR violate the "one-act, one-crime" rule. Additionally, the trial court's belated attempt to fix theproblem is void and its suggested cure improper. After correcting for these errors, defendant shouldhave been convicted of one count of DUI and one count of DWLR, and he should not have receivedan extended sentence on the DWLR conviction. Thus, we modify the judgment against defendantand remand his case for resentencing on his DWLR conviction.⁽¹⁾

Consolidated with the above appeal is defendant's appeal from the trial court's summarydismissal of his postconviction petition. Unfortunately for defendant, just as the trial court lackedjurisdiction to modify his judgment, this court lacks jurisdiction to consider the merits of hispostconviction arguments. When a defendant wishes to appeal the decision of the trial court, thedefendant must file a notice of appeal within 30 days of the entering of the judgment or order he orshe wishes to attack. 188 Ill. 2d R. 606(b). The failure to timely file a notice of appeal deprives thiscourt of jurisdiction to consider the merits of the judgment appealed from. People v. Fikara, 345 Ill.App. 3d 144, 152 (2003). Regardless of whether the parties raise the issue, we have an independentduty to consider our appellate jurisdiction. People v. Fuller, 187 Ill. 2d 1, 7 (1999). Here, neitherof the parties challenges this court's jurisdiction. Yet, the record shows that defendant's notice ofappeal was not filed until more than 30 days after his postconviction petition was dismissed. Thus,we do not have jurisdiction to consider the merits of defendant's appeal.

The above conclusion is not undermined by appellate counsel's statement that the "[n]oticeof appeal was timely mailed from the Department of Corrections on May 5." Although it is true thatattached to defendant's notice of appeal is a handwritten letter that appears to be dated May 5, andnotwithstanding that a notice of appeal is timely if mailed within 30 days of the entering of thejudgment or order appealed from (People v. Blanchette, 182 Ill. App. 3d 396, 399 (1989)), thenotation on the attachment to defendant's notice of appeal is insufficient to establish that his appealis timely. To establish timely mailing, a party must provide proof of mailing. Blanchette, 182 Ill.App. 3d at 399. Here, defendant has provided no such proof. Indeed, even if writing the date ofmailing on the notice of appeal were sufficient proof (which it is not), defendant hasn't even done thatmuch. Instead, he simply makes a notation on a handwritten attachment to the notice of appeal; anotation that, assuming it is a date, is likely the date of the letter's writing, which is not necessarilythe date of its mailing. Thus, defendant's appeal was not timely, and consequently, this court has nojurisdiction to consider it. See Blanchette, 182 Ill. App. 3d at 399 ("While we recognize this[mailbox] rule, we find no proof of mailing was filed in the instant case. *** The appellant has theburden of including those matters in the record necessary for the issues to be reviewed. ***Defendant's notice of appeal was not timely").

In sum, for the reasons stated, the judgment of the circuit court of Du Page County in caseNo. 2--03--1045 is affirmed in part and vacated in part, and the cause is remanded. Case No. 2--04--0476 is dismissed.

No. 2--03--1045, Affirmed in part and vacated in part; cause remanded.

No. 2--04--0476, Appeal dismissed.

CALLUM and GILLERAN JOHNSON, JJ., concur.

1. For its part, the State concedes that this is the proper way to proceed.