
                             No. 2--00--1166



      IN THE

      APPELLATE COURT OF ILLINOIS

      SECOND DISTRICT



THE PEOPLE OF THE STATE OF      )  Appeal from the Circuit Court
ILLINOIS,                            )  of Lake County.
                                     )
      Plaintiff-Appellee,            )                                       )
                               i.                                      )  No.  00--CF--866
                                     )
ERIC D. COLLINS,                )  Honorable
                                     )  John T. Phillips,
      Defendant-Appellant.      )  Judge, Presiding.
.
      JUSTICE GROMETER delivered the opinion of the court:
      Pursuant to a negotiated plea agreement, defendant, Eric D. Collins, pleaded guilty to one
count of attempted unlawful possession of a controlled substance with intent to deliver (720 ILCS
5/8--4(a), 570/401(c)(2) (West 2000)).  The trial court sentenced defendant to four years'
probation,  subject to various conditions.  In addition, the court imposed a $100 street-value fine
and a $500 statutory fine.  On appeal, defendant argues (1) the cause should be remanded for
compliance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) and (2) the fines assessed by the
trial court must be vacated.  Alternatively, defendant contends that he is entitled to a $5-per-day
credit against the fines imposed as part of his sentence.  For the reasons that follow, we conclude
that defendant has waived his right to appeal but that he is entitled to a monetary credit against
his fines.

                                            I.  BACKGROUND
      In March 2000, defendant was charged by complaint with various drug offenses.  Subsequently,  a
five-count indictment was handed down against defendant and two  other  individuals.   Defendant  was
named only in counts II, IV, and V of the indictment.   Count  II  of  the  indictment  alleged  that
defendant committed the offense of unlawful possession with intent to deliver "more than 1  gram  but
less than 5 grams" of a substance  containing  cocaine  while  within  1,000  feet  of  a  school  in
violation of section 407(b)(1) of  the  Illinois  Controlled  Substances  Act  (Act)  (see  720  ILCS
570/407(b)(1) (West 2000)).  Count IV of the indictment charged defendant  with  unlawful  possession
with intent to deliver "more than 1 gram but less than 5 grams" of a substance containing cocaine  in
violation of section 401(c)(2) of the Act (see 720 ILCS 570/401(c)(2) (West 2000)).  Count V  of  the
indictment alleged that defendant committed the offense of unlawful possession of less than 15  grams
of a substance containing cocaine in violation of section 402(c) of  the  Act  (720  ILCS  570/402(c)
(West 2000)).
      Thereafter, defendant entered into an agreement  with  the  State.   Under  the  terms  of  the
agreement, the State would amend count IV of  the  indictment  to  charge  defendant  with  attempted
unlawful possession with intent to deliver "more than 1 gram but less than 5 grams"  of  a  substance
containing cocaine (see 720 ILCS 5/8--4(a), 570/401(c)(2) (West 2000)).  In exchange for  defendant's
plea to count IV as amended, the State would recommend a sentencing cap  of  4½  years'  imprisonment
with eligibility for probation and it would nol-pros the remaining  two  charges  against  defendant.
At a hearing on May 8, 2000, the trial court admonished defendant pursuant to Supreme Court Rule  402
(177 Ill. 2d R. 402).  The parties then recited  the  factual  basis  for  the  plea,  and  defendant
pleaded guilty to count IV as amended.
      On June 16, 2000, the  matter  proceeded  to  sentencing.   Before  the  trial  court  had  the
opportunity to impose sentence, defendant indicated that he wished to withdraw  his  guilty  plea  on
the basis that trial counsel was ineffective.  The court appointed  conflict  counsel  and  continued
the matter.
      On August 8, 2000, defendant filed a motion to withdraw his guilty  plea.   Defendant's  motion
alleged that in light of recent case law he had a defense  worth  presenting  to  the  charges  filed
against him.  Accompanying defendant's motion was a Rule 604(d) certificate from his  attorney.   See
145 Ill. 2d R. 604(d).  On August 15, 2000, defendant argued his  motion  before  the  court.   Among
other things, defendant set forth the factual basis for the defense  asserted  in  his  motion.   The
trial court commented that defendant's written motion did not contain the factual basis as set  forth
at the hearing.  However, the court allowed defendant to orally amend his motion to conform with  the
argument presented at the hearing and granted him leave  to  file  the  amended  motion  in  writing.
Nevertheless, the trial court denied defendant's motion.
      On August 30, 2000, the trial court sentenced defendant  to  4  years'  probation,  subject  to
various conditions, including 30 months' periodic imprisonment.  In addition, the  court  assessed  a
$100 street-value fine and a $500 statutory fine.  The  trial  court  then  admonished  defendant  as
follows:
            "You do have the right to appeal.  This is a negotiated plea to the extent that there  is
      a cap that was agreed to in the case.  Mr. Collins, if you seek to challenge any aspect of  the
      plea or sentence as a precondition of filing any appeal you have to file with this Court within
      30 days of today's date a written motion to have the judgment vacated and leave to withdraw the
      plea of guilty.  You must set forth all grounds in that motion.  You won't be allowed to  at  a
      later time argue any additional reasons if they are not set forth in the written motion.
            If the motion is granted, the judgment would be vacated and the sentence set aside.   You
      would be given your plea back and trial would be set on the charge you  pled  guilty  to.   Any
      charges dismissed as a result of these negotiations would be reinstated.  If found guilty after
      trial you could be resentenced, and that would be up to the maximum told to you at the time  of
      the arraignment.
            A copy of the transcript of the proceedings at the  time  of  your  plea  of  guilty  and
      sentencing would be provided to you, and an attorney would be appointed to represent you on the
      motion.
            If you were unsuccessful in the motion [to withdraw the plea  of  guilty],  in  order  to
      appeal you must file a written motion with the appeals  clerk  within  30  days  following  the
      denial of that motion."
      At a hearing on September 27, 2000, defense counsel asked the court to have the  clerk  prepare
a notice of appeal on  defendant's  behalf  and  to  appoint  the  Appellate  Defender  to  represent
defendant on appeal.  The court granted both requests, and a notice of  appeal  was  filed  the  same
day.
                                             II. ANALYSIS
      Defendant first urges us to remand this cause to the  trial  court  for  compliance  with  Rule
604(d) because the trial court granted defense counsel's request for a notice of appeal  despite  the
lack of a postsentencing motion.  We decline defendant's request for such relief.
      At the time of defendant's plea and sentencing, Rule 604(d) provided in pertinent part:
            "(d) Appeal by Defendant from a Judgment Entered Upon a Plea of Guilty.  No appeal  taken
      from a judgment entered upon a plea of guilty shall be taken unless the  defendant,  within  30
      days of the date on which sentence is imposed, files in the trial court a motion to  reconsider
      the sentence, if only the sentence is being challenged, or, if the plea is being challenged,  a
      motion to withdraw his plea of guilty and vacate the judgment.  The motion shall be in  writing
      and shall state the grounds therefor."  145 Ill. 2d R. 604(d).
Thus, a defendant must first move to  withdraw  his  guilty  plea  and  vacate  the  judgment  before
appealing from a judgment entered upon a plea of guilty.  The primary responsibility  for  compliance
with Rule 604(d) lies with defense counsel (People v. Oliver, 276 Ill. App. 3d 929, 932 (1995)),  and
strict compliance with the rule is required (People v.  Dickerson,  212  Ill.  App.  3d  168,  170-71
(1991)).  A premature motion filed prior to sentencing does not satisfy Rule 604(d) for  purposes  of
appeal.  People v. Ramage, 229 Ill. App. 3d 1027, 1031 (1992).  In other words,  the  defendant  must
file the motion to withdraw his guilty plea and vacate the judgment within  30  days  after  sentence
has been imposed.  Ramage, 229 Ill. App. 3d at 1031.  Moreover,  our  supreme  court  has  determined
that Rule 604(d) is a condition precedent to an appeal from a defendant's plea of guilty.  People  v.
Foster, 171 Ill. 2d 469, 471 (1996); People v. Wilk, 124 Ill. 2d 93, 105 (1988).
      In People v. Janes, 158 Ill.  2d  27,  33  (1994),  the  supreme  court  held  that,  with  two
exceptions, the failure to strictly comply with the provisions of Rule 604(d) requires  a  remand  to
the circuit court for the filing of a new motion to  withdraw  the  guilty  plea  or  reconsider  the
sentence and a new hearing on the motion.  The first exception is where a defendant  challenging  his
plea fails to file a motion to withdraw his guilty plea.  See  Foster,  171  Ill.  2d  at  471.   The
second exception is where a defendant, challenging only his sentence,  fails  to  file  a  motion  to
reconsider the sentence.  See Foster, 171 Ill. 2d  at  471.   In  instances  where  either  exception
applies, "the appellate court must dismiss the appeal, leaving the Post-Conviction Hearing Act  as  a
defendant's only recourse."  Foster, 171 Ill. 2d at 471.
      In People v. McKay, 282 Ill. App. 3d 108 (1996), we interpreted Wilk and its progeny  to  stand
for the proposition that a defendant's failure to file a Rule  604(d)  motion  does  not  divest  the
appellate court of jurisdiction to hear a defendant's appeal.   McKay,  282  Ill.  App.  3d  at  111.
Instead, we found that the Wilk line of cases holds that a defendant waives his right  to  appeal  by
failing to file a Rule 604(d) motion.  McKay, 282 Ill. App.  3d  at  111.   We  noted  that,  if  the
appellate court truly lacked jurisdiction in cases where a defendant failed to  follow  the  dictates
of Rule 604(d), a reviewing court would not be able to entertain appeals from guilty pleas  in  which
a defendant was not properly admonished under Supreme Court Rule 605(b)  (145  Ill.  2d  R.  605(b)).
See Foster, 171 Ill. 2d at 473 (holding that, where a trial court has failed  to  issue  Rule  605(b)
admonitions, the appellate court  may  entertain  an  appeal  from  a  sentence  despite  defendant's
noncompliance with the written-notice requirement of Rule 604(d)).
      Turning to the case before us, it is clear that  defendant's  motion  to  withdraw  his  guilty
plea, filed prior to sentencing, did not satisfy Rule 604(d).  Moreover,  the  trial  court  properly
admonished defendant pursuant to Rule 605(b).  Despite these admonitions, defendant did  not  file  a
motion to withdraw his guilty plea and vacate judgment after the trial court  imposed  the  sentence.
Under these circumstances, we find that defendant has waived his right to appeal.
      Defendant, however, claims that the trial court implicitly  acquiesced  in  "defense  counsel's
evasion of Rule 604(d)."  According to defendant, the trial court either  erroneously  believed  that
the presentencing motion was sufficient to satisfy Rule 604(d), or it simply forgot  about  the  need
for a postsentencing motion.  In support of his position, defendant relies on Ramage, 229  Ill.  App.
3d 1027, and People v. Radunz, 180 Ill. App. 3d 734 (1989).  We find both cases distinguishable.
      In Ramage, the defendant pleaded guilty to three counts of child  pornography.   Prior  to  the
sentencing, the defendant moved to withdraw his pleas.  After denying  the  defendant's  motion,  the
trial court imposed the sentence.  Although the trial court advised the defendant  of  his  right  to
appeal the judgment, the availability of counsel, and the provision of free  transcripts,  the  court
did not admonish the defendant to file a new Rule 604(d) motion.   The  trial  court  stated,  "  'In
order to appeal, you must within 30 days file with the court a written motion asking--no, you  don't.
 You've already done that.' "  Ramage, 229 Ill. App. 3d at 1029.  In Ramage, we noted that,  although
the filing of a Rule 604(d) motion is a condition precedent to an appeal from a  plea  of  guilty,  a
defendant may be excused from the precise requirements of the rule if  he  was  misled  or  prevented
from complying with the rule by an insufficient admonition pursuant  to  Rule  605(b).   Ramage,  229
Ill. App. 3d at 1029.  Among other  things,  Rule  605(b)  requires  the  trial  court  to  inform  a
defendant that, before appealing from a plea of guilty, he  must  file  a  Rule  604(d)  motion.   In
Ramage, we concluded that the trial court's comments may have misled  the  defendant  into  believing
that he did not have to renew his Rule 604(d) motion after sentencing.  Ramage, 229 Ill. App.  3d  at
1031.
      In Radunz, the defendant did not file a timely motion to withdraw his  guilty  plea.   However,
we noted that where the trial court fails to admonish the defendant  pursuant  to  Rule  605(b),  the
failure to file a timely Rule 604(d) motion will be excused.  Radunz, 180 Ill. App. 3d  at  739.   In
Radunz, we found that the trial court failed to comply with Rule 605(b) because  it  did  not  inform
the defendant that compliance with Rule 604(d)  was  necessary  to  preserve  his  right  to  appeal.
Radunz, 180 Ill. App. 3d at 740.
      In Ramage and Radunz we elected to consider the merits of the defendants' appeals  despite  the
failure to file a timely Rule 604(d) motion.  We did so on the basis that the failure to file a  Rule
604(d) motion will be excused where  the  trial  court  does  not  properly  admonish  the  defendant
pursuant to Rule 605(b).  Ramage, 229 Ill. App. 3d at 1031; Radunz, 180 Ill. App. 3d at 740.   Unlike
the defendants in Ramage and Radunz, defendant in the instant case was properly  admonished  pursuant
to Rule 605(b) after he was sentenced.  It is clear that, in providing such admonishments, the  trial
court was aware of the need to file a Rule 604(d) motion  and  that  it  did  not  believe  that  the
presentencing motion was sufficient to satisfy the requirements of Rule 604(d).
      Defendant also points out that in Radunz we concluded that, even  if  the  defendant  had  been
properly admonished pursuant to Rule 605(b), the trial court "eliminated  any  opportunity  for  [the
defendant] to comply with Rule 604(d) by immediately having a notice of appeal filed on his  behalf."
 Radunz, 180 Ill. App. 3d at 740.  One week after Radunz was  sentenced,  his  attorney  presented  a
motion to withdraw as counsel.  The court granted the motion and immediately directed  the  clerk  to
file a notice of appeal on the defendant's behalf.  Based on  these  facts,  we  determined  that  it
would be unfair to penalize the defendant for errors committed by the trial court.  Radunz, 180  Ill.
App. 3d at 740.
      Two factors, however, set the instant case apart from Radunz.  First, the record  in  the  case
before us demonstrates that trial counsel, not the trial court, asked to have  the  clerk  prepare  a
notice of appeal on defendant's behalf.  Second, while the notice of appeal in the  Radunz  case  was
filed only 7 days after the sentence was imposed, defense counsel's request in the instant  case  was
made 28 days after the sentence was imposed.  Consequently, we find that  defendant  has  waived  his
right to appeal.
      Defendant also argues that the fines assessed by the trial court  must  be  vacated.   However,
because defendant waived his right to appeal, we find that this issue  is  not  properly  before  us.
Defendant alternatively argues that he is entitled to a $5-per-day credit against the  fines  imposed
as part of his sentence.  See 725 ILCS 5/110--14 (West 2000).  The State  agrees  that  defendant  is
entitled to a $5-per-day credit against the fines imposed as part of his sentence.
      In People v. Guerrero, 311 Ill. App. 3d 968 (2000), the defendant pleaded guilty to  possession
with intent to deliver more than 5,000 grams of a substance containing cannabis.   In  exchange,  the
State agreed to drop other charges pending against the defendant and to recommend  a  sentencing  cap
of 18 years' imprisonment.  The trial court sentenced the defendant  to  16  years  in  prison,  with
credit for 140 days served, and ordered him to pay certain fees and fines.  On appeal, the  defendant
argued that he was entitled to a per diem credit against his fine for time served.  The State  argued
that the defendant waived his right to appeal the issue because he failed to  move  to  withdraw  his
guilty plea.  Relying on People v. Woodard, 175 Ill. 2d 435 (1997), the Fourth  District  refused  to
find waiver and ruled that the defendant was entitled to the credit.  Guerrero, 311 Ill. App.  3d  at
971.  In so holding, the Guerrero court relied on the following language from Woodard:
      " '[T]he statutory right to a per diem credit is  conferred  in  mandatory  terms  while  being
      subject to a defendant's application.  As such, the "normal  rules"  of  waiver  do  not  apply
      [citation], and the right is  cognizable  on  appeal  as  a  matter  of  course  subject  to  a
      defendant's application for it.' "  Guerrero, 311 Ill. App. 3d at  970,  quoting  Woodard,  175
      Ill. 2d at 457.
      Consistent with Woodard and Guerrero, we are compelled to grant  defendant's  request  for  the
per diem credit despite the fact that he  waived  his  right  to  appeal.   The  parties  agree  that
defendant is entitled to a $5-per-day credit for 128 days, or a total of $640.  However, section 110-
-14 provides that the credit shall not exceed the amount of  the  fine.   725  ILCS  5/110--14  (West
2000).  Accordingly, defendant is entitled to a full credit against the $600  in  fines  assessed  by
the trial court.
                                           III.  CONCLUSION
      Based on the foregoing, we conclude that defendant has waived his right to appeal.   Therefore,
we affirm the judgment of  the  circuit  court  of  Lake  County.   However,  we  modify  defendant's
sentencing order to reflect a full credit against his $600 in fines.
      Affirmed as modified.
      BOWMAN and KAPALA, JJ., concur.
