                                         2015 IL App (3d) 140753

                                Opinion filed August 17, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 12th Judicial Circuit,
                                                       )      Will County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )      Appeal No. 3-14-0753
            v.                                         )      Circuit No. 10-CF-2408
                                                       )
     PAUL J. EVANS III,                                )      Honorable
                                                       )      Amy Bertani-Tomczak,
            Defendant-Appellant.                       )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
           Justices Holdridge and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________



                                                 OPINION

¶1          Defendant, Paul J. Evans III, pled guilty to home invasion (720 ILCS 5/12-11(a)(1) (West

     2010)) and was sentenced to a term of 12 years' imprisonment. Defendant's motion for

     reconsideration of his sentence was denied. Defendant appealed the denial of that motion three

     times, and each time this court remanded the matter for compliance with Illinois Supreme Court

     Rule 604(d) (eff. Dec. 11, 2014). On this appeal, defendant argues that the trial court acted prior
     to the filing of the mandate upon the most recent remand, and therefore lacked subject matter

     jurisdiction. We agree, and remand the matter for compliance with the most recent mandate.

¶2                                                FACTS

¶3          Defendant was charged by indictment with two counts of home invasion (720 ILCS 5/12-

     11(a)(1), (2) (West 2010)) and one count each of residential burglary (720 ILCS 5/19-3(a) (West

     2010)), aggravated battery of a senior citizen (720 ILCS 5/12-4(b)(10) (West 2010)), and

     aggravated battery (720 ILCS 5/12-4(b)(1) (West 2010)). Following appointment of the public

     defender, defendant entered an open plea of guilty to one count of home invasion in exchange for

     the nolle prosequi of the remaining charges. On November 16, 2011, the trial court sentenced

     defendant to a term of 12 years' imprisonment. The court also made a finding of great bodily

     harm, in turn ordering that defendant serve 85% of his sentence.

¶4          On December 1, 2011, defendant's trial counsel filed a motion to reconsider sentence,

     arguing that the sentence was excessive and that the finding of great bodily harm was against the

     manifest weight of the evidence. Counsel did not file a certificate in accordance with Supreme

     Court Rule 604(d). The trial court denied the motion and a notice of appeal was filed the same

     day. The Office of the State Appellate Defender (OSAD) was appointed to represent defendant

     on appeal.

¶5          On appeal, this court summarily remanded the matter for strict compliance with Supreme

     Court Rule 604(d). Trial counsel subsequently filed a new motion to reconsider sentence, along

     with a Rule 604(d) certificate. The motion was again denied, a second notice of appeal was

     filed, and OSAD was again appointed to represent defendant.

¶6          On the second appeal, OSAD argued that trial counsel's Rule 604(d) certificate was

     noncompliant for failure to certify that counsel had reviewed the report of proceedings of the


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       plea hearing. On July 23, 2013, this court entered an order vacating a duplicate DNA fee and

       remanding for new postsentencing proceedings in compliance with Supreme Court Rule 604(d).

       People v. Evans, 2013 IL App (3d) 120355-U, ¶¶ 12, 15.

¶7            Trial counsel once again filed a new motion to reconsider sentence along with a new Rule

       604(d) certificate. Once again, the trial court denied the motion and a notice of appeal was filed.

       On appeal, the State confessed that the Rule 604(d) certificate was again noncompliant. On

       August 21, 2014, this court issued a summary order which again remanded the matter for

       compliance with Supreme Court Rule 604(d). A copy of this summary order (August 21 order)

       appears in the record and is file stamped August 25, 2014.

¶8            On August 27, 2014, the trial court addressed a member of the public defender's office in

       open court, informing her that the cause had been remanded for a Rule 604(d) certificate and

       asking her to inform defendant's trial counsel. The matter was set for hearing on September 10.

       Trial counsel appeared on that date, apologized to the court for the ongoing issues, and requested

       a September 25 date for a new motion to reconsider.

¶9            On September 25, 2014, counsel filed a new motion to reconsider sentence and a Rule

       604(d) certificate. The trial court denied the motion and directed the clerk to file a notice of

       appeal and an order appointing OSAD to represent defendant.

¶ 10          On October 7, 2014, this court served OSAD with notice of the issuance of the mandate

       for the August 21 order. The circuit court received the mandate on October 9, and set the matter

       for a "[r]eturn of [m]andate" hearing. On October 16, the court ordered the clerk to file the

       mandate. This appeal follows.

¶ 11                                               ANALYSIS




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¶ 12          On appeal, defendant argues that the trial court's most recent denial of his motion to

       reconsider sentence was void for lack of subject matter jurisdiction. Defendant contends that

       because the trial court had not filed the mandate received from this court when the trial court

       took action on his motion, the trial court had not yet been revested with jurisdiction over the

       case. We agree, and remand the matter for compliance with Supreme Court Rule 604(d) in

       accordance with our order of August 21, 2014.

¶ 13          The filing of a valid notice of appeal has two primary effects: it divests the lower court of

       jurisdiction, and appellate jurisdiction attaches instanter. People v. Smith, 228 Ill. 2d 95, 104

       (2008); People v. Stevenson, 2011 IL App (1st) 093413, ¶ 43. On remand from the reviewing

       court, the trial court does not regain jurisdiction until it files the reviewing court's mandate. See

       People v. Adams, 36 Ill. 2d 492, 496 (1967) ("When the original mandate was recalled the case

       stood as if no mandate had been issued, and the trial court had no authority to proceed."); People

       v. Farnsworth, 31 Ill. App. 3d 771, 773 (1975) ("The trial court did not acquire jurisdiction for

       the new trial until the date the mandate of this court was filed in the trial court."); People v.

       Abraham, 324 Ill. App. 3d 26, 30 (2001) ("When a court of review issues a mandate, it vests a

       trial court with jurisdiction only to take action that conforms with the mandate."). Any actions

       taken by the lower court when it has no jurisdiction are null and void. Stevenson, 2011 IL App

       (1st) 093413, ¶ 43.

¶ 14          In the present case, the entirety of the trial court's proceedings upon receipt of our August

       21 order occurred prior to the October 16 filing of the mandate. The trial court informed the

       public defender's office of the remand, trial counsel filed a new motion to reconsider sentence,

       and the trial court denied that motion and ordered the filing of a new notice of appeal all before




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       jurisdiction had been revested in the trial court. Because the trial court acted without

       jurisdiction, we find those proceedings to be null and void.

¶ 15          The State does not dispute that the trial court lacked jurisdiction prior to the filing of the

       mandate, but argues that, under the doctrine of invited error, defendant "cannot request at trial to

       proceed one way and then claim on appeal that was error." However, it is axiomatic that the lack

       of subject matter jurisdiction is not subject to waiver and may not be cured through consent of

       the parties. E.g., People v. Bannister, 236 Ill. 2d 1, 23 (2009). Indeed, in this context, " '[t]he

       parties cannot, by agreement, acquiescence, or otherwise, revest jurisdiction in the trial court

       when jurisdiction lies in the appellate court.' " Stevenson, 2011 IL App (1st) 093413, ¶ 43

       (quoting People v. Henry, 329 Ill. App. 3d 397, 403 (2001)).

¶ 16          The State also argues that, in the interest of judicial economy, this court should refuse to

       remand the present matter for a fourth time. The State cites extensively to People v. Shirley, 181

       Ill. 2d 359 (1998), in which our supreme court refused to remand a case based on trial counsel's

       failure to file a Rule 604(d) certificate where remand would provide the defendant with his third

       hearing on his excessive sentence claim. The court found that "requiring another remand and

       hearing on the motion to reduce sentences would be an empty and wasteful formality." Id. at

       370. The State points out that remand here would provide defendant with his fifth hearing on his

       motion to reconsider sentence.

¶ 17          In Shirley, however, the supreme court acted within its discretion in not remanding for

       Rule 604(d) compliance. We have no such discretion at our disposal in the case at hand. The

       trial court here was without jurisdiction prior to the October 16 filing of the mandate. Any order

       entered by the trial court before that date is void and vacated. We therefore must remand the

       matter so the trial court may comply with the mandate of our order of August 21, 2014.


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¶ 18                                          CONCLUSION

¶ 19          The judgment of the circuit court of Will County is vacated and the cause is remanded

       with instructions.

¶ 20          Vacated; remanded with instructions.




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