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People v. Munoz
State: Illinois
Court: 2nd District Appellate
Docket No: 2-99-1043 Rel
Case Date: 04/05/2001

No. 2--99--1043
April 05, 2001

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

THE PEOPLE OF THE STATE)Appeal from the CircuitCourt
OF ILLINOIS,)of Kane County.
   )
Plaintiff-Appellee,   )
)Nos.99--CF--204
v.)98--CF--961
)96--CF--1492
                                                                                               )
ROBERTO MUNOZ,)Honorable
)F. Keith Brown,
Defendant-Appellant.)Judge, Presiding.

_______________________________________________________________________________________________

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Defendant, Roberto Munoz, pleaded guilty to vehicularhijacking (720 ILCS 5/18--3(a) (West 1998)) and stipulated toviolating the terms of two previously entered probation orders. Pursuant to the agreement, defendant was sentenced to six years'imprisonment on May 21, 1999. When the prison term was imposed,the trial court gave defendant some of the admonishments underSupreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), which has sincebeen amended, for negotiated guilty pleas, as Supreme Court Rule605(c) (Official Reports Advance Sheet No. 23 (November 15, 2000),R. 605(c), eff. November 1, 2000). On August 19, 1999, the trialcourt entered an order for restitution. At the time therestitution order was entered, the trial court did not admonishdefendant pursuant to Rule 605(b). Defendant appeals, arguing thatthe cause should be remanded because the trial court did not givehim any Rule 605(b) admonishments when the restitution order wasimposed. In the alternative, defendant argues that the restitutionorder is void and that his cause should be remanded for proper Rule605(b) admonishments because the trial court did not give himsufficient admonishments at the May 21, 1999, proceeding. Weremand with directions.

During the guilty plea proceedings, the assistant publicdefender advised the court that defendant would stipulate toviolating the terms of two probation orders and plead guilty tovehicular hijacking in exchange for the State dismissing two othercharges that also were filed against defendant. The parties agreedthat all outstanding terms and conditions related to the probationviolations were waived. The agreed upon sentence for the vehicularhijacking charge was 6 years' imprisonment with credit for 119 daysserved.

The trial court advised defendant about the possible maximumand minimum prison sentences defendant could face for the chargesbefore the court. As to the vehicular hijacking charge, the courttold defendant that he could be sentenced to between 4 and 15years' imprisonment if the plea agreement were not in effect. Defendant stipulated to the factual basis and pleaded guilty. Thefollowing exchange then occurred:

"THE COURT: Court will accept the disposition.

Sir, if you disagree with anything that's occurred heretoday, you do have a right to appeal.

Before you can take such an appeal, you must file withthis Court a motion to withdraw your plea of guilty andsetting forth the grounds for your motion.

If that motion is granted, your plea of guilty will bevacated and the case will be reset for trial. If it's notgranted, you'll be given an additional 30 days to file anotice of appeal with the Appellate Court.

If you're indigent at that time and need the services ofan attorney, one will be appointed for you at no charge.

MS. PECCARELLI [Assistant Public Defender]: Judge, theState does want him on video on Tuesday, only so that they canensure that there's no restitution. We don't have any reasonto believe that there will be.

THE COURT: That's the order."

The trial court never told defendant that the charges that theState dismissed could be reinstated if defendant filed a motion towithdraw his guilty plea and that motion was granted. The courtalso never advised defendant that any issue he failed to raise inhis postjudgment motion would be deemed waived.

At the next court date, the assistant public defender told thecourt that the State may seek restitution, and the attorneysuggested that the court set a hearing date. A one-month hearingdate was set, and the hearing was finally concluded approximatelythree months after defendant was sentenced to prison. The trialcourt entered an order for $1,000 in restitution, and the court didnot give defendant any Rule 605(b) admonishments when therestitution order was entered. After the restitution order wasentered, defendant did not file any type of postjudgment motion,but he did file a timely notice of appeal.

Supreme Court Rule 604(d) requires a defendant who pleadsguilty pursuant to a plea agreement to file a postjudgment motionseeking to withdraw the guilty plea or reconsider the sentencebefore appealing the cause. Official Reports Advance Sheet No. 23(November 15, 2000), R. 604(d), eff. November 1, 2000. A defendantmust file a motion to withdraw the guilty plea and vacate thejudgment in lieu of a motion to reconsider the sentence if the plea was negotiated, i.e., the State bound itself by recommendinga specific sentence, proposing a specific range of sentences, orconceding matters related to the sentence and not merely thecharges pending. See People v. Evans, 174 Ill. 2d 320, 323 (1996);see also Official Reports Advance Sheet No. 23 (November 15, 2000),R. 604(d), eff. November 1, 2000. However, a necessary antecedentto filing one of these motions is that the trial court mustproperly admonish defendant. People v. Jamison, 181 Ill. 2d 24,27-28 (1998).

When defendant's case was pending in the trial court therequired admonishments were contained in Rule 605(b) (145 Ill. 2dR. 605(b)). However, the supreme court's opinions in Evans andPeople v. Linder, 186 Ill. 2d 67 (1999) rendered the Rule 605(b)admonishments legally inaccurate for defendants who entered anegotiated plea of guilty. People v. Waller, 317 Ill. App. 3d 390,392 (2000). The amended admonitions contained in Rule 605(c) areconsistent with the rules announced in Evans and Linder. SeeOfficial Reports Advance Sheet No. 23 (November 15, 2000), R.605(c), eff. November 1, 2000. However, in this case, our analysisis unaffected by the amendment of Rule 605(b).

The version of Rule 605(b) in effect at the time ofdefendant's sentencing and the amended Rules 605(b) and (c) requirea trial court to admonish a defendant who pleads guilty regardingthe defendant's right to appeal "at the time of imposing sentence." 145 Ill. 2d R. 605(b); Official Reports Advance Sheet No. 23(November 15, 2000), Rs. 605(b), (c), eff. November 1, 2000. Anorder for restitution is an increment of a sentence, which is thefinal judgment in a criminal case. People v. Richardson, 252 Ill.App. 3d 593, 595 (1993).

Here, we conclude that the trial court was required toadmonish defendant under Rule 605(b) at the time the finalincrement of the sentence, the restitution order, was entered. Because no Rule 605(b) admonishments were given to defendant whenthe restitution order was entered, we determine that the causeshould be remanded so that defendant may receive the properadmonishments, now contained in Rule 605(c). See People v. Foster,171 Ill. 2d 469, 474 (1996). We note that the record is unclearwhether restitution was actually contemplated within the negotiatedagreement. If restitution was not contemplated by the parties butlater imposed by the trial court, this may not be a fullynegotiated plea pursuant to Evans and Linder. See People v. Diaz,192 Ill. 2d 211, 225 (2000) (summarizing the requirements tochallenge different plea agreement scenarios). If after receivingthe proper admonitions defendant elects to challenge his convictionor sentence, he retains the right to file the appropriate motion. See Foster, 171 Ill. 2d at 474.

For these reasons, the cause is remanded with directions tothe circuit court of Kane County.

Remanded with directions.

BOWMAN and RAPP, JJ., concur.

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