                               No. 2--04--1041                   filed 6/1/06
______________________________________________________________________________

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE              ) Appeal from the Circuit Court
OF ILLINOIS,                         ) of Kane County.
                                     )
    Plaintiff-Appellee,              )
                                     )
v.                                   ) No. 03--CF--1172
                                     )
GONZALO MONTIEL,                     ) Honorable
                                     ) Grant S. Wegner,
    Defendant-Appellant.             ) Judge, Presiding.
    __________________________________________________________________________
    ____

       JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

       The defendant, Gonzalo Montiel, appeals from his sentence for unlawful delivery of 1 to 15

grams of cocaine (720 ILCS 570/401(c)(2) (West 2002)). He contends only that he is entitled to a

credit of $5 a day against his fine for two days he spent incarcerated before his sentencing. We

agree. However, because any fine the court imposed on him was less than the statutory minimum

assessment of $2,000 under section 411.2(a)(2) of the Illinois Controlled Substances Act (Act) (720

ILCS 570/411.2(a)(2) (West 2002)), we determine that his sentence is void to that extent. We

therefore remand the matter to the trial court to impose all statutorily mandated fines and fees and to

credit $10 against his fines.

       A grand jury indicted the defendant on one count of unlawful delivery of 1 to 15 grams of

cocaine while within 1,000 feet of a park (720 ILCS 570/407(b)(1) (West 2002)) (count I) and one

count of unlawful delivery of 1 to 15 grams of cocaine (count II). Under a fully negotiated
No. 2--04--1041


agreement, the defendant pleaded guilty to count II. The State agreed to recommend a sentence of

seven years' imprisonment and to further recommend that the defendant be considered for impact

incarceration (boot camp). The court specifically warned the defendant that it could not guarantee

his admission into the boot camp program. The defendant said that he understood. Neither the

parties nor the court mentioned a fine during the plea proceedings. The court did state, however,

that the defendant would have to pay a $212 DNA collection fee. The court accepted the agreement.

The judgment order, entered January 14, 2004, shows the $212 collection fee and a fine of $1,000.

The judgment order to the Department of Corrections from the same day shows that the defendant

received a two-day credit against his sentence for two days of presentencing incarceration.

       On March 16, 2004, the defendant filed a "Motion for the Court to resolve the Failure to be

assigned to 'Boot Camp' as was ordered at sentencing." In it, he alleged that immigration issues had

prevented his acceptance into boot camp, making the execution of the plea agreement, as he

understood it, impossible. On April 7, 2004, he filed a motion for reduction of the sentence, asking

for review, but stating no grounds. The State described the first motion as "some sort of a post-

conviction petition" and asked for "a 402 conference." After a conference between the parties and

the court, the court told the defendant that he had filed his motion for reduction of the sentence too

late, but that, with the State's agreement, the court was reducing his sentence to four years'

imprisonment, the other terms to remain unchanged. The court questioned the parties about their

positions regarding "any potential error in regard to following a philosophy of revestment." Neither

raised any concern. The parties filed the order embodying that agreement on May 12, 2004.

       On October 13, 2004, the defendant filed a motion in this court, supported by affidavits, to

allow a late notice of appeal. This court granted the motion. On appeal, the defendant argues only

that he is entitled under section 110--14 of the Code of Criminal Procedure of 1963 (Code) (725

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ILCS 5/110--14 (West 2002)) to a $5-a-day credit against his fine for two days he spent in jail before

sentencing. The State, however, argues that the court did not impose a fine on the defendant, only

the $212 DNA collection fee, so that the defendant lacks a fine against which to apply the credit. It

contends that a conflict exists between the common-law record, which states that the court fined the

defendant $1,000, and the court's oral pronouncement, which did not mention a fine, and that the

oral pronouncement controls. It does not otherwise contest the defendant's entitlement to the credit.

We agree with the defendant that he was entitled to a $10 credit against any fine. As we discuss,

however, we need not decide whether the fine the trial court imposed was $0 or $1,000, because we

hold that, under the principles of People v. Arna, 168 Ill. 2d 107 (1995), the sentence was void to the

extent the fine was less than $2,000. Therefore, the defendant is entitled to his credit, but the trial

court must first correct his sentence to include all nondiscretionary fines and fees, including the fine

of $2,000.

        As a preliminary matter, we consider the source of our jurisdiction in this case. The

defendant contends that jurisdiction revested in the trial court when the State participated on the

merits in the litigation of the defendant's two motions attacking his sentence (despite the

untimeliness of the motions) and that this court therefore has jurisdiction over the matter as a direct

appeal. The State contends that the supreme court's holding in People v. Flowers, 208 Ill. 2d

291(2003), precludes such jurisdiction. It asserts, however, that this court has jurisdiction because

the trial court treated one of the defendant's postsentencing filings as a postconviction petition;

according to the state, our jurisdiction is thus on the appeal of the ruling on a postconviction petition.

As we will discuss, we do not read Flowers to have abrogated the doctrine of revestment. Further,

we see no indication in the record that the court recharacterized either of the defendant's




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postsentencing filings as a postconviction petition. Therefore, we hold that we have jurisdiction

over the matter as a direct appeal.

        The State argues, at least by implication, that the supreme court eliminated the doctrine of

revestment when it stated in Flowers that "[l]ack of subject matter jurisdiction is not subject to

waiver [citation] and cannot be cured through consent of the parties [citation]." Flowers, 208 Ill. 2d

at 303, citing Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 302 (1940). We do not

agree. More than half a century ago, in Toman, the court used language essentially indistinguishable

from that it used in Flowers: "It is a familiar rule that when a court has no jurisdiction of the subject

matter, it cannot be conferred by consent ***. *** There can be no waiver of jurisdiction of the

subject matter where the trial court lacked jurisdiction to enter the order appealed from." Toman,

375 Ill. at 302. Despite this, the supreme court has applied the doctrine of revestment at least as

recently as People v. Kaeding, 98 Ill. 2d 237, 241 (1983). It stated in Kaeding that the doctrine

applies when "the parties *** actively participate without objection in proceedings which are

inconsistent with the merits of the prior judgment." Kaeding, 98 Ill. 2d at 241. If Toman did not

eliminate the doctrine of revestment (as Kaeding shows that it did not), then neither did Flowers,

which simply expresses the same principles as Toman.

        Although cases accepting the doctrine of revestment are admittedly in tension with Flowers

and Toman, they can be formally reconciled if one recognizes that it is not consent but active

participation that revests jurisdiction. This interpretation is consistent with the facts of Flowers.

The Flowers court held that the trial court had lacked jurisdiction to consider an untimely motion

under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). Flowers, 208 Ill. 2d at 303. However, no

indication exists that the State actively participated in the consideration of the defendant's motion




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No. 2--04--1041


(Flowers, 208 Ill. 2d at 297), so we have no reason to believe that the conditions for revestment, as

stated by Kaeding, were met.

       Here, the conditions for revestment were met. Both parties participated in proceedings in

which the State, by its agreement to a lower sentence, effectively conceded that the previous

sentence was higher than necessary to protect the public interest. We note that the State's

description of the motion as "some sort of a post-conviction petition" raises a slight concern that it

believed that it was participating in a new action. However, when the court explicitly stated that the

defendant's motion was too late and raised the matter of revestment with the parties, the State did not

clarify that it believed that it was involved in a postconviction proceeding. These circumstances

make it clear that all involved were proceeding on the defendant's motion as a postjudgment motion.

Contrary to the State's position on appeal, nothing that occurred suggests that the court

recharacterized either of the defendant's motions as a postconviction petition.

       We now turn to the matter of the defendant's sentence, which we find to be void because the

fine is less than statute requires. Under section 411.2(a)(2) of the Act, a person convicted of a Class

1 felony under the Act must be assessed a fine of $2,000.1 Unlawful delivery of 1 to 15 grams of

cocaine is a Class 1 felony under the Act. 720 ILCS 570/401(c)(2) (West 2002). Therefore, a

sentence for unlawful delivery of 1 to 15 grams of cocaine that does not include such a fine is

contrary to statute. "A sentence which does not conform to a statutory requirement is void." Arna,

168 Ill. 2d at 113. Further, "courts have an independent duty to vacate void orders and may sua


       1
           The State does not dispute that an assessment under section 411.2(a)(2) of the Act is a "fine"

under section 110--14 of the Code, a principle that we recently reaffirmed. People v. Youngblood,

No. 2--04--0987 (May 17, 2006).


                                                   -5-
No. 2--04--1041


sponte declare an order void." People v. Thompson, 209 Ill. 2d 19, 27 (2004). We hold the

defendant's sentence to be void to the extent it does not include required fines and fees. We

therefore remand the matter to the trial court to impose the $2,000 fine and all other statutorily

required fines and fees.

       The State conceded that the defendant was entitled to a $5-a-day credit of $10, but disputed

only whether the court imposed a fine. Our order that the trial court impose a fine of $2,000

therefore resolves any issue of whether the defendant was entitled to a credit. On remand, the court

should grant the defendant a credit of $10 against his fines.

       As a final matter, we note that the defendant's plea agreement does not become void because

of the change in his sentence. We considered the effect of a void term in a plea agreement on the

validity of the agreement as a whole in People v. McNett, 361 Ill. App. 3d 444 (2005), and People v.

Hare, 315 Ill. App. 3d 606 (2000). In those cases, we held that a plea agreement as a whole is void if

an essential term cannot be performed. McNett, 361 Ill. App. 3d at 448; Hare, 315 Ill. App. 3d at

610. Whether a term is essential depends on the " 'relative importance [of the voided term] in the

light of the entire agreement between the parties.' " McNett, 361 Ill. App. 3d at 448, quoting

Restatement (Second) of Contracts '184(1), Comment a, at 30 (1981). In Hare, because the

statutory mandatory minimum sentence for the defendant was six years, not the four years to which

the parties agreed, a large change would have been needed to bring the agreement in compliance

with the statute. Hare, 315 Ill. App. 3d at 609-10. We held that the entire agreement was void.

Hare, 315 Ill. App. 3d at 610. We reached the opposite result in McNett because the change needed

to make the sentence comply with the law was comparatively small and because the law prevented

the State from achieving its exact objectives under any circumstances. In McNett, the parties agreed

that the defendant's 60-month sentence would include 18 months' probation conditioned on work

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No. 2--04--1041


release. McNett, 361 Ill. App. 3d at 445. The State noted its special interest in having the defendant

receive a long term of work release so as to provide for him to get alcohol abuse treatment under

controlled conditions. McNett, 361 Ill. App. 3d at 446. The trial court later converted 6 months of

work release to ordinary probation because it found that 12 months is the longest authorized term of

work release. McNett, 361 Ill. App. 3d at 446. We held that modification of the terms of the

defendant's probation did not change an essential term of the plea agreement because of the

comparatively minor quantitative change in the sentence and because the State had achieved the

maximum allowable period of work release. McNett, 361 Ill. App. 3d at 448-49.

          Here, like McNett and unlike Hare, the necessary modifications to the sentence do not

disturb the essential terms of the plea agreement. As originally charged, the defendant faced the full

possible range of Class X sentences, but negotiated first a seven-year sentence, and then a four-year

sentence, the Class 1 minimum. As a matter of common sense, the fines and fees are a minor issue

and an inessential term of the agreement. That said, the State and the trial courts should take

particular care to fully inform defendants entering guilty pleas of all statutorily required fines and

fees. If not clearly stated, fines and fees can be uncomfortably reminiscent of hidden charges in an

abusive consumer contract. The plea agreement can stand despite correction of the sentence.

However, we regret the necessity to impose a sentence more severe than that to which the defendant

agreed.

          For the reasons given, we remand the matter to the circuit court of Kane County for it to

modify the defendant's sentence to conform to applicable statutes and to grant him a credit of $10

against all fines.

          Remanded with directions.

          BYRNE and KAPALA, JJ., concur.

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