Filed 11/20/09               NO. 4-08-0790

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
          Plaintiff-Appellee,          )   Circuit Court of
          v.                           )   McLean County
MICHAEL P. HALDORSON,                  )   No. 07CF532
          Defendant-Appellant.         )
                                       )   Honorable
                                       )   Kevin P. Fitzgerald,
                                       )   Judge Presiding.
_________________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          In February 2008, pursuant to a plea agreement, defen-

dant, Michael P. Haldorson, pleaded guilty to unlawful delivery

of a controlled substance.    At a May 2008 sentencing hearing, the

trial court sentenced defendant to 10 years' imprisonment.      In

July 2008, defendant filed a pro se motion for the reduction of

his sentence, which the court denied.       This appeal followed, in

which defendant contends his 10-year sentence was excessive.      The

State responds this court lacks jurisdiction to address the

merits of defendant's argument.    We decline to address the merits

of defendant's argument and dismiss the appeal.

                             I. BACKGROUND

          In May 2007, a grand jury indicted defendant with

criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)),

unlawful delivery of a controlled substance (720 ILCS

570/401(d)(i) (West 2006)), unlawful possession of a controlled
substance with the intent to deliver (720 ILCS 570/401(c)(2)

(West 2006)), unlawful possession of a controlled substance (720

ILCS 570/402(c) (West 2006)), and unlawful possession of a

certain dog by a felon (720 ILCS 5/12-36(a) (West 2006)) for his

actions on May 16, 2007.

          In February 2008, defendant and the State entered into

a plea agreement, under which defendant would plead guilty to

unlawful use of a weapon in McLean County case No. 06-CF-891 and

unlawful delivery of a controlled substance in this case (No. 07-

CF-532) and the State would move to dismiss the other charges in

the two pending cases.    Except for the agreed fines and fees, the

agreement was open as to sentencing for unlawful delivery of a

controlled substance.    The parties agreed to a three-year sen-

tence for unlawful use of a weapon that would run consecutive to

the sentence imposed in this case.      The trial court accepted

defendant's guilty plea.

          On May 9, 2008, the trial court held a sentencing

hearing on the unlawful-delivery-of-a-controlled-substance count.

After hearing extensive evidence and the parties' arguments, the

court sentenced defendant to 10 years' imprisonment to run

consecutive to his 3-year sentence in case No. 06-CF-891.

          On June 24, 2008, defendant filed a notice of a motion

for a reduction of sentence, which he mailed on June 19, 2008.

Attached to the notice was a note from defendant explaining his


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delay in filing a postplea motion.      Defendant also requested the

appointment of counsel.   According to the docket sheets, defen-

dant actually filed his motion for a reduction of his sentence on

July 23, 2008, and the trial court appointed defendant counsel

that same day.   The record on appeal does not contain the actual

postplea motion.   In September 2008, defendant sent the court a

letter detailing his challenges to the court sentencing, which is

part of the appellate record.

          On September 25, 2008, the trial court held a hearing

on defendant's postplea motion.   Defense counsel filed his

required Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d))

certificate at the hearing, which labeled the motion as one to

withdraw defendant's guilty plea.    After hearing the parties'

arguments, the court denied defendant's motion.     On October 21,

2008, defendant filed a notice of appeal from his sentence and

the denial of his postplea motion.

                           II. ANALYSIS

          In several recent decisions, our supreme court has

emphasized a reviewing court's independent duty to ascertain its

jurisdiction before considering the appeal's merits.     See People

v. Lewis, 234 Ill. 2d 32, 36-37, 912 N.E.2d 1220, 1223 (2009);

Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill.

2d 209, 213, 902 N.E.2d 662, 664 (2009); People v. Smith, 228

Ill. 2d 95, 106, 885 N.E.2d 1053, 1059 (2008).     Thus, the State's


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questioning of our jurisdiction is a threshold issue.     See Lewis,

234 Ill. 2d at 37, 912 N.E.2d at 1223.

          "The timely filing of a notice of appeal is both

jurisdictional and mandatory."     Secura Insurance Co., 232 Ill. 2d

at 213, 902 N.E.2d at 664.   Here, defendant appeals from a

judgment entered on a guilty plea, and thus Rule 604(d) (210 Ill.

2d R. 604(d)) governs the perfection of the appeal in this case.

Regardless of the type of guilty plea, Rule 604(d) requires the

filing of a postplea motion within 30 days of the court's imposi-

tion of the defendant's sentence.    210 Ill. 2d R. 604(d).   If the

postplea motion is denied, the defendant must file a notice of

appeal from the judgment and sentence within the time set forth

in Supreme Court Rule 606 (210 Ill. 2d R. 606), "measured from

the date of entry of the order denying the motion."    210 Ill. 2d

R. 604(d).   As to the time for filing a notice of appeal, Rule

606(b) states the following:

                "Except as provided in Rule 604(d), the

          notice of appeal must be filed with the clerk

          of the circuit court within 30 days after the

          entry of the final judgment appealed from or

          if a motion directed against the judgment is

          timely filed, within 30 days after the entry

          of the order disposing of the motion."    210

          Ill. 2d R. 606(b).


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           In this case, the trial court sentenced defendant on

May 9, 2008, and thus, under Rule 604(d), he had until June 9,

2008, to file a postplea motion.   Accordingly, defendant's July

23, 2008, pro se postplea motion was untimely.     Defendant argues

he filed a notice and request for leave to file the late motion,

which the trial court implicitly granted when it held the Septem-

ber 25, 2008, hearing on the motion.   However, a trial court can

only grant an extension of time to file a postplea motion before

the expiration of the 30-day deadline.   People v. Flowers, 208

Ill. 2d 291, 300, 802 N.E.2d 1174, 1180 (2003).    Defendant's

request to file a late motion was untimely as it was mailed on

June 19, 2008.

           Since defendant's postplea motion was untimely, it did

not toll the 30-day postjudgment period for filing a notice of

appeal.   Thus, pursuant to Rule 606(b) (210 Ill. 2d R. 606(b)),

defendant had to file his notice of appeal by June 9, 2008.

Accordingly, defendant's October 21, 2008, notice of appeal is

untimely under Rule 606(b), and we lack jurisdiction.

           However, defendant contends we have jurisdiction under

the revestment doctrine, noting our decision in People v. Lindma-

rk, 381 Ill. App. 3d 638, 887 N.E.2d 606 (2008).    There, we

stated that, "[i]f a trial court is revested with jurisdiction,

then a notice of appeal filed within 30 days after a ruling on

the untimely postjudgment motion vests the appellate court with


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jurisdiction."     Lindmark, 381 Ill. App. 3d at 652, 887 N.E.2d at

618.   The State asks us to reconsider our decision in Lindmark.

We decline the opportunity to do so at this time as this case is

distinguishable from Lindmark, which involved an appeal after a

jury trial.    See Lindmark, 381 Ill. App. 3d at 640-41, 887 N.E.2d

at 609-10.    Thus, unlike here, Rule 604(d) was not at issue in

Lindmark.

            Our supreme court has never applied the revestment

doctrine to a postplea motion required by Rule 604(d).     On the

contrary, the supreme court has emphasized the trial court's lack

of jurisdiction to address untimely postplea motions under Rule

604(d).     See Flowers, 208 Ill. 2d at 303, 802 N.E.2d at 1181.     In

Flowers, 208 Ill. 2d at 303, 802 N.E.2d at 1181, the supreme

court noted that, when Rule 604(d)'s 30-day period has expired

and the trial court has not extended the limitation period, the

trial court is divested of jurisdiction to entertain a defen-

dant's postplea motion under Rule 604(d).     Moreover, the Flowers

court explicitly stated the State's failure to raise the fact the

trial court had lost its jurisdiction did not give that court the

authority to proceed on the motion.      Flowers, 208 Ill. 2d at 303,

802 N.E.2d at 1182.    The court explained "[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, 802 N.E.2d at 1182.     Additionally,


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the Flowers court noted that, because the trial court's jurisdic-

tion had long elapsed, "[t]he only continuing power the circuit

court possessed over the case was limited to enforcement of the

judgment or correction of clerical errors or matters of form so

that the record conformed to the judgment actually rendered."

(Emphasis added.)   Flowers, 208 Ill. 2d at 306-07, 802 N.E.2d at

1183.

          We recognize the Second District has applied the

revestment doctrine to an untimely Rule 604(d) postplea motion

since the Flowers decision.   See People v. Montiel, 365 Ill. App.

3d 601, 605, 851 N.E.2d 725, 728 (2006).   In doing so, the Second

District noted the Flowers decision used language similar to

Toman v. Park Castles Apartment Building Corp., 375 Ill. 293,

302, 31 N.E.2d 299, 304 (1940), which was decided before the

supreme court's application of the revestment doctrine in People

v. Kaeding, 98 Ill. 2d 237, 241, 456 N.E.2d 11, 14 (1983).

Montiel, 365 Ill. App. 3d at 605, 851 N.E.2d at 727.   Thus, the

court concluded the revestment doctrine still existed.   Montiel,

365 Ill. App. 3d at 605, 851 N.E.2d at 727.

          However, the Second District overlooks the fact the

Flowers decision specifically addressed a Rule 604(d) postjudgme-

nt motion, which is different from other postjudgment motions.

As explained earlier, Rule 604(d) (210 Ill. 2d R. 604(d)) has its

own 30-day requirement in addition to the 30-day requirement set


                               - 7 -
forth in Rule 606(b) (210 Ill. 2d R. 606(b)).   With Rule 604(d)

(210 Ill. 2d R. 604(d)), the defendant must file a postjudgment

motion and the correct type of motion within 30 days of sentenc-

ing to preserve appellate review.   Even if an appellate court has

jurisdiction, a defendant's failure to file a timely Rule 604(d)

motion or the correct Rule 604(d) motion precludes the appellate

court from considering the appeal on the merits.    Flowers, 208

Ill. 2d at 301, 802 N.E.2d at 1180; People v. Foster, 171 Ill. 2d

469, 471, 665 N.E.2d 823, 824 (1996).   In such situations, "the

appellate court must dismiss the appeal [citation], leaving the

Post-Conviction Hearing Act [(725 ILCS 5/122-1 through 122-8

(West 1998))] as the defendant's only recourse."    Flowers, 208

Ill. 2d at 301, 802 N.E.2d at 1180; see also Foster, 171 Ill. 2d

at 471, 665 N.E.2d at 824.   Our supreme court has never recog-

nized an exception similar to revestment to the 30-day language

in Rule 604(d).   In fact, our supreme court has emphasized its

requirement of strict compliance with Rule 604(d) in all criminal

cases.    See In re William M., 206 Ill. 2d 595, 605, 795 N.E.2d

269, 274-75 (2003).   Moreover, we point out appellate courts do

not have authority to make exceptions to supreme court rules.

See People v. Lyles, 217 Ill. 2d 210, 216, 840 N.E.2d 1187, 1191

(2005).

           Additionally, the Second District attempted to recon-

cile Kaeding and Flowers by recognizing "it is not consent but


                                - 8 -
active participation that revests jurisdiction."    (Emphases in

original.)   Montiel, 365 Ill. App. 3d at 605, 851 N.E.2d at 728.

The Second District stated the Flowers opinion gave no indication

the State actively participated in the consideration of the

defendant's motion (see Flowers, 208 Ill. 2d at 297, 802 N.E.2d

at 1178), and thus it had no reason to believe that the condi-

tions for revestment were met.    Such a presumption is contrary to

real-life experience as the State rarely chooses not to argue

against a defendant's postplea or posttrial motion.

          Accordingly, we decline to follow the Second District's

decision in Montiel and find the revestment doctrine does not

apply to untimely Rule 604(d) motions.   Thus, under Flowers, the

trial court lacked jurisdiction to entertain defendant's untimely

Rule 604(d) motion, and we are precluded from considering the

appeal on the merits and must dismiss it.    Flowers, 208 Ill. 2d

at 301, 802 N.E.2d at 1180.   We note defendant did not raise any

issue regarding his admonishments under Supreme Court Rule 605

(210 Ill. 2d R. 605).

                          III. CONCLUSION

          For the reasons stated, we dismiss defendant's appeal.

As part of our judgment, we award the State its $50 statutory

assessment against defendant as costs of this appeal.   See 735

ILCS 5/5-120 (West 2006) ("If any person takes an appeal to

review the judgment of any other court, and the judgment is


                                 - 9 -
affirmed or the appeal is dismissed, the appellee shall recover

costs"   (emphasis added)); see also People v. Brownell, 123 Ill.

App. 3d 307, 322, 462 N.E.2d 936, 947 (1984) (noting section 5-

120 of the Code of Civil Procedure applies to criminal cases).

          Dismissed.

          MYERSCOUGH and APPLETON, JJ., concur.




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