                            NO. 4-08-0847          Filed 11/9/09

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
RICKY KING,                            )    No. 02CF1610
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Thomas J. Difanis,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In September 2002, the State charged defendant, Ricky

King, with five counts of first degree murder (720 ILCS 5/9-

1(a)(1), (a)(2) (West 2000)).    Later that month, the trial court

granted the State's motion to dismiss the criminal charges on the

belief defendant had not yet reached 15 years of age at the time

of the alleged crime.    That same day, the State filed a

delinquency petition under the Juvenile Court Act of 1987 (Act)

(705 ILCS 405/1-1 through 7-1 (West 2000)).

          In December 2002, having learned defendant was actually

over 15 years of age at the time of the alleged crime, the State

moved to dismiss the juvenile case and reinstate the original

criminal charges.   In June 2003, the State filed an additional

count of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-

1(a)(West 2000)).   That same day, defendant entered a negotiated

plea to the attempt (first degree murder) charge in exchange for

dismissal of the first-degree-murder charges and a 15-year

sentence to the Department of Corrections (DOC).    The trial court
dismissed the remaining first-degree-murder charges and

immediately sentenced defendant to 15 years' imprisonment.    In

October 2008, defendant filed a petition for postconviction

relief seeking a modification of his sentence on the grounds the

court failed to admonish him of the mandatory-supervised-release

(MSR) term that would follow his imprisonment.   The petition was

dismissed as frivolous and patently without merit.

          This appeal followed.

                           I. ANALYSIS

          We initially note defendant states in the "Nature of

the Case" portion of his brief that he appeals from the judgment

dismissing his petition for postconviction relief.   However, he

does not address the trial court's failure to admonish him as to

MSR in the "Argument" section of his brief.   Nonetheless, we have

reviewed the record on the MSR issue and find it supports the

court's dismissal as defendant was explicitly admonished as to

MSR at his June 2003 hearing.   Defendant did not address in his

postconviction petition the issue he argues on appeal.

          Defendant argues his sentence is void because the State

failed to make the statutorily required request for a sentencing

hearing before the trial court sentenced him as an adult.    A

defendant may attack a void judgment at any time, and a reviewing

court has an independent duty to vacate a void order.     People v.

Jardon, 393 Ill. App. 3d __, __, 913 N.E.2d 171, 186 (2009).     If

the trial court lacked subject-matter or personal jurisdiction,

or the power to enter a particular judgment or sentence, the


                                - 2 -
judgment is void.     Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at

186.   Likewise, a sentence that violates a statutory requirement

is void.   People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445,

448 (1995); Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186.         A

defendant's claim that his judgment is void is not subject to

waiver.    Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186.

Thus, we reject any assertion from the State that defendant may

not raise this issue for the first time on appeal.       Jardon, 393

Ill. App. 3d at __, 913 N.E.2d at 186.

           We apply the de novo standard of review to dismissal of

a first-stage postconviction petition (People v. Gulley, 383 Ill.

App. 3d 727, 731, 891 N.E.2d 441, 445-46 (2008)) and to issues of

statutory construction (Jardon, 393 Ill. App. 3d at __, 913

N.E.2d at 187).

           Section 5-130 of the Act states the following:

                  "(1)(a) The definition of delinquent

           minor under [s]ection 5-120 of this [a]rticle

           shall not apply to any minor who at the time

           of an offense was at least 15 years of age

           and who is charged with (i) first degree

           murder ***.

                  These charges and all other charges

           arising out of the same incident shall be

           prosecuted under the criminal laws of this

           State.

                                 * * *


                                 - 3 -
     (b)(i) If before trial or plea an

information or indictment is filed that does

not charge an offense specified in paragraph

(a) of this subsection (1)[,] the State's

Attorney may proceed on any lesser charge or

charges, but only in [j]uvenile [c]ourt under

the provisions of this [a]rticle.   The

State's Attorney may proceed under the

Criminal Code of 1961 on a lesser charge if

before trial the minor defendant knowingly

and with advice of counsel waives, in

writing, his or her right to have the matter

proceed in [j]uvenile [c]ourt.

     (ii) If before trial or plea an

information or indictment is filed that

includes one or more charges specified in

paragraph (a) of this subsection (1) and

additional charges that are not specified in

that paragraph, all of the charges arising

out of the same incident shall be prosecuted

under the Criminal Code of 1961.

     (c)(i) If after trial or plea the minor

is convicted of any offense covered by

paragraph (a) of this subsection (1), then,

in sentencing the minor, the court shall have

available any or all dispositions prescribed


                    - 4 -
for that offense under [c]hapter V of the

Unified Code of Corrections [(Unified Code)].

     (ii) If after trial or plea the court

finds that the minor committed an offense not

covered by paragraph (a) of this subsection

(1), that finding shall not invalidate the

verdict or the prosecution of the minor under

the criminal laws of the [s]tate; however,

unless the State requests a hearing for the

purpose of sentencing the minor under

[c]hapter V of the Unified Code, the [c]ourt

must proceed under [s]ections 5-705 and 5-710

of this [a]rticle.   To request a hearing, the

State must file a written motion within 10

days following the entry of a finding or the

return of a verdict.    Reasonable notice of

the motion shall be given to the minor or his

or her counsel.   If the motion is made by the

State, the court shall conduct a hearing to

determine if the minor should be sentenced

under [c]hapter V of the Unified Code.    In

making its determination, the court shall

consider among other matters: (a) whether

there is evidence that the offense was

committed in an aggressive and premeditated

manner; (b) the age of the minor; (c) the


                       - 5 -
          previous history of the minor; (d) whether

          there are facilities particularly available

          to the [j]uvenile [c]ourt or the Department

          of Juvenile Justice for the treatment and

          rehabilitation of the minor; (e) whether the

          security of the public requires sentencing

          under [c]hapter V of the Unified Code; and

          (f) whether the minor possessed a deadly

          weapon when committing the offense.    The

          rules of evidence shall be the same as if at

          trial.    If after the hearing the court finds

          that the minor should be sentenced under

          [c]hapter V of the Unified Code, then the

          court shall sentence the minor accordingly

          having available to it any or all

          dispositions so prescribed."    (Emphasis

          added.)    705 ILCS 405/5-130(1)(a) through

          (1)(c)(ii) (West 2000).

          In the case sub judice, defendant was originally

charged with first degree murder, a section 5-130(1)(a) offense.

Exclusive jurisdiction for this offense, when the offender is at

least 15 years old, lies in criminal court, not juvenile court.

705 ILCS 405/5-130(1)(b)(ii) (West 2000).    If other, non-section

5-130(1)(a) charges arising from the same incident are alleged in

an indictment, together with section 5-130(1)(a) charges, the

entire prosecution takes place in criminal court.      705 ILCS


                                - 6 -
405/5-130(1)(b)(ii) (West 2000).    Here, the State added to the

indictment attempt (first degree murder), a non-section 5-

130(1)(a) charge, which could be prosecuted in criminal court

with the first-degree-murder charge because it arose from the

same incident.    However, the statute provides if a defendant

either pleads or is found guilty of only the non-section 5-

130(1)(a) charges, then a court is required to proceed under

sections 5-705 and 5-710 of the Act, unless the State requests,

within 10 days of the plea or trial, a hearing at which the court

would determine whether to sentence the defendant as an adult.

705 ILCS 405/5-130(1)(c)(ii) (West 2000).    Here, the defendant

pleaded to only the non-section 5-130(a)(1) charge, triggering

the requirement that the State request a sentencing hearing

within 10 days.    The State failed to do this.

           The following cases are instructive on the issues

raised in this appeal:     Jardon, 393 Ill. App. 3d __, 913 N.E.2d

171, People v. Mathis, 357 Ill. App. 3d 45, 827 N.E.2d 932

(2005), People v. Champ, 329 Ill. App. 3d 127, 768 N.E.2d 237

(2002), People v. Brazee, 333 Ill. App. 3d 43, 44, 775 N.E.2d

652, 653 (2002) (Brazee II), and People v. Brazee, 316 Ill. App.

3d 1230, 1231, 738 N.E.2d 646, 647-48 (2000) (Brazee I).

           In Champ, the 16-year-old defendant was charged with

first degree murder.     Champ, 329 Ill. App. 3d at 128-29, 768

N.E.2d at 238.    A jury found the defendant guilty of involuntary

manslaughter, and the trial court sentenced him to five years in

DOC.   Champ, 329 Ill. App. 3d at 128, 768 N.E.2d at 238.   On


                                 - 7 -
appeal, the defendant argued he should have been sentenced under

the Act, rather than as an adult, because the court was required

to sentence him as a juvenile under section 5-4(6)(c)(ii) of the

Act (705 ILCS 405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act

90-590, §2001-15, eff. January 1, 1999)) (1998 Ill. Legis. Serv.

1289, 1405-06)) (codified as amended at 705 ILCS 405/5-

130(1)(c)(ii) (West 2000)) (hereinafter section 5-130(1)(c)(ii))

unless the State moved to sentence him as an adult within 10 days

of entry of the verdict.    Champ, 329 Ill. App. 3d at 131, 768

N.E.2d at 240.   The State conceded "'a [minor] defendant

convicted of involuntary manslaughter would ordinarily not be

subject to adult sentencing unless the State filed a motion,'"

but it argued a different section excluded defendant from this

safeguard.   Champ, 329 Ill. App. 3d at 131, 768 N.E.2d at 240.

The First District Appellate Court disagreed and found the court

was required to sentence the defendant as a juvenile because the

State failed to request a hearing to determine whether the

defendant would be sentenced as an adult.     Champ, 329 Ill. App.

3d at 135-36, 768 N.E.2d at 243.    The court stated "[a]t such a

hearing, the trial court would have had the opportunity[,] based

on the facts of this case[,] to weigh the need for

rehabilitation, served by juvenile detention, against the need

for protection of the community, served by sentencing defendant

to an adult facility."     Champ, 329 Ill. App. 3d at 133, 768

N.E.2d at 241.

          The Champ court noted its decision was consistent with


                                 - 8 -
Brazee I, 316 Ill. App. 3d at 1235, 738 N.E.2d at 650-51, which

reversed a minor defendant's sentence as an adult following a

plea of guilty to criminal sexual assault in exchange for the

State dismissing a charge of aggravated criminal sexual assault.

Champ, 329 Ill. App. 3d at 133, 768 N.E.2d at 241-42.    (The

charge of aggravated criminal sexual assault mandated adult

treatment, while criminal sexual assault did not.)

          In Brazee I, the reviewing court held the trial court

erroneously sentenced the defendant as an adult because the State

did not request a hearing on the matter.     Brazee I, 316 Ill. App.

3d at 1235, 768 N.E.2d at 650-51.    The difference between the

Brazee I defendant's conviction by plea and Champ defendant's

conviction by trial "in no way undermines" the hearing

requirement prior to sentencing as an adult.     Champ, 329 Ill.

App. 3d at 133, 768 N.E.2d at 242.

          In Mathis, the 15-year-old defendant was charged with

possession of a controlled substance with intent to deliver

within 1,000 feet of a school (count I) and possession of a

controlled substance with intent to deliver (count II).     Mathis,

357 Ill. App. 3d at 47, 827 N.E.2d at 934.    Because of the

defendant's age and the nature of count I, defendant's case was

automatically transferred from juvenile court to criminal court

pursuant to section 5-130(2)(a) of the Act (705 ILCS 405

5/130(2)(a) West 2002)).   Mathis, 357 Ill. App. 3d at 47, 827

N.E.2d at 934.   In April 2002, defendant pleaded guilty to count

II in exchange for dismissal of count I.     Mathis, 357 Ill. App.


                               - 9 -
3d at 47, 827 N.E.2d at 934.   Because count II, by itself, did

not trigger application of the automatic-transfer provision,

defense counsel told the trial court defendant would waive

juvenile jurisdiction so the matter could stay in criminal court.

Mathis, 357 Ill. App. 3d at 47, 827 N.E.2d at 934.   The court

then asked the defendant's mother if she understood the meaning

of the waiver and if she agreed to it, to which she responded

affirmatively.   Mathis, 357 Ill. App. 3d at 47, 827 N.E.2d at

934-35.   In addition, the minor orally waived his right to have

juvenile jurisdiction applied to his case and acknowledged to the

court he was accepting an adult conviction.    Mathis, 357 Ill.

App. 3d at 47-48, 827 N.E.2d at 935.

           The Mathis defendant was sentenced to 18 months'

probation.   Mathis, 357 Ill. App. 3d at 48, 827 N.E.2d at 935.

While on probation, the defendant was charged with possession of

a stolen motor vehicle.   Mathis, 357 Ill. App. 3d at 48, 827

N.E.2d at 935.   The State filed a petition for violation of the

defendant's probation.    Mathis, 357 Ill. App. 3d at 48, 827

N.E.2d at 935.   Thereafter, defendant filed a petition to vacate

the judgment of conviction of April 2002 as void.    Mathis, 357

Ill. App. 3d at 48, 827 N.E.2d at 935.   On appeal, defendant

argued the criminal sentence was void because the State did not

request a sentencing hearing as required by section 5-

130(2)(c)(ii) (705 ILCS 405/5-130(2)(c)(ii) (West 2002)).

Mathis, 357 Ill. App. 3d at 53, 827 N.E.2d at 939.   The appellate

court found the requirement for a hearing is mandatory and cannot


                               - 10 -
be waived by a minor defendant, despite defendant's explicit

agreement to a criminal sentence.    Mathis, 357 Ill. App. 3d at

54, 827 N.E.2d at 939.

           Due to the nature of the defendant's drug crime in

Mathis, that court construed section 5-130(2)(c)(ii) (repealed by

Pub. Act 94-574, eff. August 12, 2005 (2005 Ill. Legis. Serv.

2946, 2947)).    Mathis, 357 Ill. App. 3d at 53, 827 N.Ed.2d at

939.   However, the language of section 5-130(2)(c)(ii) and

section 5-130(1)(c)(ii), the relevant section in the case sub

judice, is virtually identical.     Jardon, 393 Ill. App. 3d at __,

913 N.E.2d at 187.

           In Jardon, the defendant was charged with first degree

murder and aggravated unlawful use of a weapon.     Jardon, 393 Ill.

App. 3d at __, 913 N.E.2d at 175.    Following a bench trial, he

was convicted of second degree murder, an offense not specified

in section 5-130(1)(a).    Jardon, 393 Ill. App. 3d at __, 913

N.E.2d at 187.   The State waited more than 30 days after judgment

was entered to file its motion requesting defendant be sentenced

as an adult, although the statute required the State to file the

motion within 10 days of a finding or verdict.     Jardon, 393 Ill.

App. 3d at __, 913 N.E.2d at 187.    The motion was actually filed

on the sentencing date.    Jardon, 393 Ill. App. 3d at __, 913

N.E.2d at 187.   The State also failed to show it provided

defendant or defense counsel with prior notice of its intent to

file and present its motion at the sentencing hearing.     Jardon,

393 Ill. App. 3d at __, 913 N.E.2d at 187.    Relying on Mathis,


                               - 11 -
the Jardon court held "[b]ecause the terms of section 5-

130(1)(c)(ii) of the Act [(705 ILCS 405/5-130(1)(c)(ii) (West

2004))] are mandatory, the failure to comply with those

provisions renders the sentencing order in [the] case void, and,

contrary to the State's assertion, the imposition of an adult

sentence cannot be characterized as harmless error."     Jardon, 393

Ill. App. 3d at __, 913 N.E.2d at 188.   Relying on Brazee II, 333

Ill. App. 3d at 44, 775 N.E.2d at 653, the court vacated the

defendant's second-degree murder conviction, ordering the

defendant's adjudication of delinquency instead.   Jardon, 393

Ill. App. 3d at __, 913 N.E.2d at 190.

           As the State points out, a trial court may not enter

judgment on a plea agreement that is statutorily unauthorized.

People v. Gregory, 379 Ill. App. 3d 414, 422, 883 N.E.2d 762, 769

(2008).   Under Illinois law, the State was required to request a

sentencing hearing within 10 days of the entry of defendant's

guilty plea.   Its failure to do so renders the 15-year criminal

sentence void, and a defendant may attack a void sentence at any

time.   See Champ, 329 Ill. App. 3d at 129, 768 N.E.2d at 238-39.

           While the defendant, in his brief, only requests remand

for resentencing under the Act, the State recognizes defendant

would eventually seek to have his conviction for attempt (first

degree murder) vacated and the judgment modified to an

adjudication of delinquency.   In the interest of judicial

economy, we will address this issue.

           On remand of Brazee I, the trial court sentenced


                               - 12 -
defendant as a juvenile but upheld defendant's criminal

conviction.   Brazee II, 333 Ill. App. 3d at 44, 775 N.E.2d at

653.   Defendant challenged the ruling, and in Brazee II, the

reviewing court held the judgment must be modified to show the

criminal conviction was vacated and defendant was adjudicated a

delinquent minor.   Brazee II, 333 Ill. App. 3d at 44, 775 N.E.2d

at 653.   Brazee II states section 5-130(1)(c)(ii) "does not

specifically address whether the resultant judgment stands as a

criminal conviction or an adjudication of delinquency."   Brazee

II, 333 Ill. App. 3d at 47, 775 N.E.2d at 655.   Brazee II posited

the legislature might have intended to maintain the criminal

character of the proceeding by providing that a conviction of an

offense not covered by section 5-4-(6)(a) (705 ILCS 405/5-4(6)(a)

(West 1996)) (repealed by Pub. Act 90-590, §2001-15, eff. January

1, 1999 (1998 Ill. Legis. Serv. 1289, 1406)) (codified as amended

at 705 ILCS 405/5-130(1)(a) (West 2000))   "'shall not invalidate

the verdict or the prosecution of the minor under the criminal

laws of the State.'"   Brazee II, 333 Ill. App. 3d at 447, 775

N.E.2d at 655. If so, the criminal conviction should stand, but a

juvenile sentence should be imposed.   Brazee II, 333 Ill. App. 3d

at 47, 775 N.E.2d at 655.

           However, Brazee II also recognized another reasonable

interpretation of the statutory language to be that it was simply

designed to preserve the factual and legal determinations in the

criminal prosecution, thereby eliminating any issue about whether

the minor would have to be retried under the Act.   Brazee II, 333


                              - 13 -
Ill. App. 3d at 47, 775 N.E.2d at 655-56.     Brazee II resolved

these two possible interpretations in favor of the defendant,

finding the criminal conviction had to be vacated and an

adjudication of delinquency entered.     Brazee II, 333 Ill. App. 3d

at 48, 775 N.E.2d at 656.    In reaching this conclusion, Brazee II

engaged in a discussion of the purpose of delinquency hearings

being protective, rather than penal in nature.     Brazee II, 333

Ill. App. 3d at 48, 775 N.E.2d at 656.    "In enacting section [5-

130(1)(c)(ii)], however, the General Assembly obviously

recognized the injustice of criminalizing a minor's less serious

delinquent behavior when the particular charges mandating

criminal prosecution are resolved in the minor's favor."     Brazee

II, 333 Ill. App. 3d at 48, 775 N.E.2d at 656.    "We can see no

reason why the General Assembly would intend to attach the stigma

and legal consequences of a criminal conviction merely because

the minor at one time stood charged with a more serious offense."

Brazee II, 333 Ill. App. 3d at 48, 775 N.E.2d at 657.    The court

found by validating the criminal prosecution and verdict, section

5-130(1)(c)(ii) "merely eliminates the need to retry the

defendant in a formal delinquency hearing."    Brazee II, 333 Ill.

App. 3d at 48, 775 N.E.2d at 656.

          Brazee II has been followed by the First District in

Mathis and Jardon.   While the Brazee II reasoning may well be

justified, we agree with the result, but for reasons based on the

statutory language itself.   Section 5-130(c)(ii) provides "unless

the State requests a hearing for the purpose of sentencing the


                               - 14 -
minor under [c]hapter V of the [Unified Code], the [c]ourt must

proceed under [s]ections 5-705 and 5-710 of [the Act]."     705 ILCS

405/5-130(1)(c)(ii) (West 2000).    Section 5-705 provides as

follows:

                "(1) At the sentencing hearing, the

           court shall determine whether it is in the

           best interests of the minor or the public

           that he or she be made a ward of the court,

           and, if he or she is to be made a ward of the

           court, the court shall determine the proper

           disposition best serving the interests of the

           minor and the public."   705 ILCS 405/5-705(1)

           (West 2000).

           Clearly, section 5-705 requires an adjudication of

delinquency prior to imposing a sentence under section 5-710.    By

requiring the court to proceed under section 5-705 where the

State fails to request a hearing under section 5-130(c)(ii), the

legislature has required the court to apply the provisions of the

Act.   Moreover, Brazee II was decided in 2002, and the

legislature has not changed the language in any way to indicate

Brazee II had misinterpreted its intent.    See People v. Wagener,

196 Ill. 2d 269, 283, 752 N.E.2d 430, 440 (2001) (a reviewing

court may presume the legislature knew of prior judicial

interpretations of a statute and agreed with the judicially

constructed meaning if the language at issue was retained in

subsequent amendments).   Consequently, the adult conviction must


                              - 15 -
be vacated and an adjudication of delinquency must be entered.

           We note this result could have been avoided if the

State had followed the procedures required of it under section 5-

130(1)(c)(ii), requested a timely hearing, and presented evidence

for the court to determine whether the minor should be sentenced

as an adult.

           Lastly, the State argues defendant is estopped from

asserting his criminal sentence is void while enjoying the

benefit of his negotiated plea.   Section 5-130(1)(c)(ii) of the

Act states it applies "after trial or plea."     (Emphasis added.)

705 ILCS 405/5-130(1)(c)(ii) (West 2000).     Defendant entered a

negotiated plea agreement whereby he plead guilty to attempt

(first degree murder) in exchange for the State's offer of

recommending 15 years' imprisonment and dismissal of the first-

degree-murder charges.   The court imposed the State's recommended

sentence of 15 years' imprisonment.     According to the statute,

the court did not have the authority to sentence defendant as an

adult "unless the State request[ed] a hearing for the purpose of

sentencing the minor under [c]hapter V of the [Unified Code]."

705 ILCS 405/5-130(1)(c)(ii) (West 2000).     The statute does not

distinguish between bench and jury trials or open and negotiated

pleas.   Moreover, unlike section 5-130(1)(b)(i), section 5-

130(c)(ii) does not include a waiver clause, and we decline to

read one into it, even where a minor defendant explicitly agreed

to a criminal sentence in a negotiated plea without a hearing on

the matter.    See Mathis, 357 Ill. App. 3d at 47-48, 827 N.E.2d at


                               - 16 -
935.   Thus, we conclude the statutory requirement applies to all

convictions secured by trial or plea, regardless of the form, and

the cases we cite above support this conclusion.

           Since his sentencing, defendant has attained 21 years

of age and is no longer eligible to be committed as a juvenile

under the Act.   Under these circumstances, the trial court shall

enter an order sentencing defendant under the Act to time served

as of August 3, 2008, the date of his 21st birthday, enter an

adjudication of delinquency, and vacate defendant's criminal

conviction.   See Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at

190.

                          II. CONCLUSION

           For the reasons stated, we reverse the trial court's

judgment and remand with directions for the trial court to vacate

the criminal conviction, enter an adjudication of delinquency,

and enter an order sentencing defendant under the Act to time

served as of the date of defendant's 21st birthday.

           Reversed and remanded with directions.

           MYERSCOUGH and APPLETON, JJ., concur.

                       SUPPLEMENTAL OPINION

           JUSTICE POPE delivered the supplemental opinion of the

court:

           Counsel for defendant, following the filing of this

court's opinion in this cause, filed a "Motion for Release

Pursuant to Supreme Court Rule 604(a)(3), or, in the Alternative,

Admission to Bail, Pending Resolution of the State's Appeal."


                              - 17 -
The State filed an objection to defendant's motion for release on

bond.

          The cases addressing release on appeal under Supreme

Court Rule 604(a)(3) (210 Ill. 2d R. 604(a)(3)) arise out of

interlocutory appeals by the State pretrial.   See People v.

Baltimore, 381 Ill. App. 3d 115, 885 N.E.2d 1096 (2008); People

v. Beaty, 351 Ill. App. 3d 717, 814 N.E.2d 590 (2004); People v.

Wells, 279 Ill. App. 3d 564, 664 N.E.2d 660 (1996).    When Rule

604(a)(3) is examined in the context of the other provisions of

Rule 604(a), it appears pretrial release during interlocutory

appeals by the State is the focus of the rule.

          We need not reach that decision, however, because we

find Supreme Court Rule 613(c) (177 Ill. 2d R. 613(c)) applies to

this matter.   Rule 613(c) reads as follows:

                "Reversal When Appellant Is Serving

          Sentence.   If in a case on appeal the appel-

          lant is serving the sentence imposed in the

          trial court and the judgment is reversed and

          appellant ordered discharged, the clerk of

          the reviewing court shall at once mail to the

          imprisoning officer, certified mail, return

          receipt requested, a copy of the mandate of

          the reviewing court.   It shall be the duty of

          the imprisoning officer to release appellant

          from custody forthwith upon receiving a cer-

          tified copy of the mandate of the reviewing


                              - 18 -
          court.   If appellant is serving the sentence

          and the judgment is reversed and the cause

          remanded to the trial court for further pro-

          ceedings, the clerk of the reviewing court

          shall at once mail to the imprisoning offi-

          cer, certified mail, return receipt

          requested, a copy of the mandate of the re-

          viewing court.   The imprisoning officer shall

          forthwith, upon receiving the certified copy

          of the mandate of the reviewing court, return

          appellant to the trial court to which the

          cause was remanded."   177 Ill. 2d R. 613(c).

          Rule 613(c) is self-executing and needs no action from

this court.   Accordingly, we deny defendant's motion as moot.

          Motion denied.

          MYERSCOUGH, P.J., and APPLETON, J., concur.




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