June 28, 2001

JUSTICE COOK delivered the opinion of the court:

On December 8, 1998, defendant, Francis X. Leahy III,entered a negotiated plea of guilty to one count of unlawfuldelivery of more than 30 grams but not more than 500 grams ofcannabis (720 ILCS 550/5(d) (West 1998)). The plea agreementincluded a recommended sentence cap of 3 1/2 years' imprisonment. On January 17, 1999, the trial court sentenced Leahy to 3 1/2years' imprisonment, admonishing him in conformity with SupremeCourt Rule 605(b) (145 Ill. 2d R. 605(b)) as it then existed. Leahy appeals the trial court's denial of his motion to reconsider sentence. We vacate the trial court's order and remandwith directions.

This case is one of several that have recently comebefore our court. Each may differ slightly in the particularsbut all involve essentially the same scenario: the defendantpleaded guilty with an agreement as to sentencing. The trialcourt advised the defendant that to perfect an appeal, he couldfile either a motion to withdraw his plea or a motion to reconsider his sentence. In many cases, this advice was incorrect asa matter of law. Filing a motion to reconsider would result inthe dismissal of the appeal, not its perfection. Is a defendantso situated entitled to relief?

Historically, Rule 605(b)(2) (145 Ill. 2d R. 605(b)(2))provided that, prior to taking an appeal, a defendant who pleadedguilty must file either a motion to reconsider sentence or amotion for leave to withdraw his plea. The trial court wasrequired to so advise the defendant when it pronounced sentence. 145 Ill. 2d R. 605(b). Subsequently, the case law underwentconsiderable evolution. In People v. Evans, 174 Ill. 2d 320,332, 673 N.E.2d 244, 250-51 (1996), the court held--based onelementary contract principles--that a defendant who had negotiated a specific sentencing recommendation as part of guilty pleacould not later challenge that sentence without first withdrawinghis plea. In People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d1169, 1172-73 (1999), the court extended this reasoning todefendants who had merely negotiated a sentencing range or cap,so long as the sentence actually imposed fell within the negotiated range. In contrast, People v. Lumzy, 191 Ill. 2d 182, 187,730 N.E.2d 20, 22-23 (2000), essentially held that some type ofagreement as to sentencing was necessary to require a motion towithdraw the plea as a precondition for appeal.

As of November 1, 2000, Rule 605(b) was amended toprovide two different forms of advice--one for defendants who hadnegotiated some aspect of their sentencing, another for those whohad not. Under amended Rule 605, the former are now correctlyinformed that withdrawal of their guilty plea is the only mannerin which to perfect an appeal, while the latter continue to beinformed of their alternatives. See Official Reports AdvanceSheet No. 23 (November 15, 2000), Rs. 605(b)(2), (c)(2), eff.November 1, 2000. In the period between the various case lawdecisions of the supreme court and the amendment of Rule 605,however, defendants entering negotiated guilty pleas receivedincorrect advice from the trial court.

When defendants complained of the inconsistency onappeal, every other district considering the issue concluded thatfundamental fairness required that such cases be remanded to thetrial court for proper advice and the opportunity to move towithdraw the plea, if defendants so chose. See People v.Knowles, 304 Ill. App. 3d 472, 475, 710 N.E.2d 1238, 1240 (1999),vacated & remanded with directions, 189 Ill. 2d 670, 730 N.E.2d52 (2000), affirmed on remand, 315 Ill. App. 3d 600, 734 N.E.2d184 (2000) (Second District); People v. Didier, 306 Ill. App. 3d803, 809, 715 N.E.2d 321, 325 (1999), appeal denied, 186 Ill. 2d575, 723 N.E.2d 1165 (1999) (Second District); People v. Wright,311 Ill. App. 3d 1042, 1048, 725 N.E.2d 811, 816 (2000), appealdenied, 191 Ill. 2d 558, 738 N.E.2d 935 (2000) (Fifth District);People v. Doguet, 307 Ill. App. 3d 1, 6-7, 716 N.E.2d 818, 822(1999), appeal denied, 191 Ill. 2d 541, 738 N.E.2d 930 (2000)(Second District); People v. Foster, 308 Ill. App. 3d 286, 290,719 N.E.2d 1163, 1165 (1999), appeal denied, 191 Ill. 2d 543, 738N.E.2d 931 (2000) (Third District). We, however, refused to holdthat a defendant who had been incorrectly admonished was entitledto remand. See People v. Jogi, 308 Ill. App. 3d 302, 719 N.E.2d798 (1999) (postconviction petition), vacated & remanded withdirections, 191 Ill. 2d 547, 738 N.E.2d 906 (2000) (nonpreceden-tial supervisory order).

On October 4, 2000, in an exercise of its supervisoryauthority, the supreme court vacated our decision in Jogi and inevery other similar case pending before this district, directingus to reconsider our judgment in light of its decision in Peoplev. Diaz, 192 Ill. 2d 211, 735 N.E.2d 605 (2000). See People v.Jogi, 191 Ill. 2d 547, 738 N.E.2d 906 (2000) (nonprecedentialsupervisory order vacating and remanding with directions); Peoplev. Leahy, 191 Ill. 2d 548, 735 N.E.2d 1002 (2000) (instant case),(nonprecedential supervisory order vacating and remanding withdirections); People v. Harden, 191 Ill. 2d 545, 735 N.E.2d 1001(2000) (nonprecedential supervisory order vacating and remandingwith directions); People v. Island, 191 Ill. 2d 547, 735 N.E.2d1001 (2000) (nonprecedential supervisory order vacating andremanding with directions). Diaz was another opinion thatcompared and contrasted several different plea scenarios, eventually concluding that Evans-type principles applied to the defendant's plea. Diaz, 192 Ill. 2d at 218-24, 735 N.E.2d at 608-612. However, Diaz also marked the first time the supreme court hadaddressed the disparity between Rule 605(b) admonishments and thecase law. At the conclusion of its opinion, the court acceptedDiaz's request that the case be remanded for proper admonishmentand the opportunity to move to withdraw his guilty plea. Diaz,192 Ill. 2d at 226-28, 735 N.E.2d at 613.

In the closing remarks of Diaz, the court seemed toindicate that a "notice" or "timing" analysis was important bygoing out of its way to point out that neither Evans nor itsprogeny were available to Diaz when he entered his plea. Diaz,192 Ill. 2d at 227, 735 N.E.2d at 613. In light of those comments, upon reconsideration we generally reaffirmed, noting thatthe relevant case law had been available to the defendants beforeour court. See People v. Jogi, 317 Ill. App. 3d 532, 537, 740N.E.2d 88, 92 (2000) (Jogi II), vacated & remanded with directions, 194 Ill. 2d 575-76, 744 N.E.2d 1271 (2001) (nonprecedential supervisory order); People v. Harden, 321 Ill. App. 3d 203,209, 747 N.E.2d 1095, 1100 (2001).

We were wrong. The supreme court yet again vacated ourJogi II decision. This time, however, the court did not remandthe case to us; instead, the case was sent directly to thecircuit court "with directions to enter an order allowing defendant an opportunity to file a motion to withdraw guilty plea." People v. Jogi, 194 Ill. 2d 575, 576, 744 N.E.2d 1271, 1271(2001). Despite the fact that supervisory orders are of limitedprecedential value (People v. Boykin, 94 Ill. 2d 138, 146, 445N.E.2d 1174, 1178 (1983)), the inescapable conclusion is that thetiming of a defendant's plea, despite the language in Diaz, doesnot play as crucial a role as we had envisioned. We are compelled to conclude that despite some of the court's remarks,fundamental fairness dictates remand in all similar cases. Toparaphrase Linder: "When Jogi first came before us, we remandedit to the appellate court for the express purpose of having thecourt reconsider its decision in light of Diaz. If we believedthat Diaz were inapplicable, we would not have ordered thatremand." See Linder, 186 Ill. 2d at 75, 708 N.E.2d at 1173.

Therefore, we vacate that order of the circuit court ofAdams County, which denied Leahy's motion for reconsideration ofsentence and remand the cause with directions to advise Leahy inconformity with the present version of Rule 605(c) (OfficialReports Advance Sheet No. 23 (November 15, 2000), R. 605(c), eff.November 1, 2000) and allow him the opportunity to move towithdraw his guilty plea. In light of our resolution of thisissue, we need not address Leahy's argument that his trialcounsel was ineffective for failing to file a motion to withdrawguilty plea.

Vacated and remanded with directions.

STEIGMANN, P.J., and KNECHT, J., concur.