Docket No. 110498.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS ex rel. ANITA
ALVAREZ, Petitioner, v. DAVID SKRYD, Respondent.
Opinion filed February 3, 2011.
JUSTICE FREEMAN delivered the judgment of the court, with
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
Petitioner, Anita Alvarez, State’s Attorney of Cook County, seeks
a writ of mandamus or prohibition against respondent, the Honorable
David Skryd, judge of the circuit court of Cook County. See Ill.
Const. 1970, art. VI, §4(a). Respondent granted the motion of
defendant, Efrain Loza, to withdraw defendant’s approximately 12-
year-old guilty plea and vacate his misdemeanor conviction. The State
requests an order compelling respondent to rescind his order and
dismiss defendant’s motion for lack of jurisdiction. We award the
State a writ of mandamus.
At the outset we make two observations. First, in an original
action to review a judicial act, the judge is only a nominal party in the
proceeding. Counsel for the prevailing party below may file papers for
that party, but shall not file any paper in the name of the judge. Ill. S.
Ct. R. 381(c) (eff. Dec. 29, 2009). Second, our recitation of the
undisputed facts is taken from limited sources for a limited purpose.
In an original mandamus proceeding: “Only issues of law will be
considered. The proposed complaint shall be sworn to and shall
contain or have attached to it the lower court records or other
pertinent material that will fully present the issues of law.” Ill. S. Ct.
R. 381(a) (eff. Dec. 29, 2009). Here, the parties have attached to their
pleadings only those portions of the record in support of their
respective legal arguments.
On May 21, 1998, defendant entered into a negotiated plea of
guilty to one count of misdemeanor possession of cannabis (720 ILCS
550/4(c) (West 1998)) in exchange for two days in the Cook County
jail, time considered served. The circuit court held a hearing on
defendant’s guilty plea (see Ill. S. Ct. R. 402 (eff. July 1, 1997)),
which is memorialized, in full, as follows:
“CLERK: Efrain Loza.
[Defense Counsel]: *** We would accept the State’s offer
time considered served and tender a jury waiver.
COURT: Is that what you are agreeing to, two days
House of Corrections, time considered served?
COURT: You are giving up right to a jury, right to insist
the State prove the case beyond a reasonable doubt. Are you
aware you are giving up those rights?
COURT: Still pleading guilty?
COURT: That is the order.”
These were the court’s only admonishments to defendant.
On April 7, 2010, defendant filed a motion to withdraw his guilty
plea and vacate his conviction. Defendant alleged that at the time of
1Citing section 113–8 of the Code of Criminal Procedure of 1963 (725
ILCS 5/113–8 (West 2008)), defendant also assigned error to the circuit
court’s failure to advise defendant of the immigration consequences of the
conviction. Defendant correctly does not pursue this assignment of error
before this court because this statutory admonishment was not enacted until
2003, effective January 2004.
his conviction, he was a Mexican citizen, but a lawful permanent
resident in the United States. However, as a result of defendant’s
conviction, his “petition for citizenship is being denied and he is
subject to removal.” Defendant contended that he was entitled to
withdraw his guilty plea because at the hearing on the plea the circuit
court failed to admonish him of his appeal rights as required by
Supreme Court Rule 605(c) (Ill. S. Ct. R. 605(c) (eff. Aug. 1, 1992)).1
At a hearing on the motion to withdraw, the State argued that the
motion, filed nearly 12 years after the guilty plea, should be dismissed
as untimely. Without explanation, respondent granted defendant’s
The State filed a motion to reconsider, in which it contended that
the circuit court lacked jurisdiction over defendant’s motion to
withdraw because it was not filed within 30 days of the entry of the
guilty plea, as required by Supreme Court Rule 604(d) (Ill. S. Ct. R.
604(d) (eff. Aug. 1, 1992)). At the close of a hearing, again without
explanation, respondent denied the State’s motion to reconsider.
The State filed a motion with this court for leave to file a
complaint seeking a writ of mandamus or prohibition against
respondent. Ill. S. Ct. R. 381(a) (eff. Dec. 29, 2009). We allowed the
State’s motion for leave to file the complaint.
Before this court, the State contends that respondent lacked
jurisdiction over defendant’s motion to withdraw his guilty plea and
vacate his conviction because defendant filed his motion beyond 30
days–indeed, nearly 12 years–after his guilty plea. Defendant counters
that respondent was not divested of jurisdiction because defendant
was not admonished regarding his appeal rights.
Article VI, section 4(a), of the Illinois Constitution confers upon
2Similarly, a writ of prohibition may be used to prevent a judge from
acting where he or she has no jurisdiction to act, or to prevent a judicial act
which is beyond the scope of a judge’s legitimate jurisdictional authority. See
People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 449-50 (2007) (and cases
this court discretionary original jurisdiction to hear mandamus cases.
Ill. Const. 1970, art. VI, §4(a). Mandamus is an extraordinary remedy
used to compel a public official to perform a purely ministerial duty
where no exercise of discretion is involved. People ex rel. Birkett v.
Konetski, 233 Ill. 2d 185, 192-93 (2009). The issue presented in this
case is not whether respondent’s order was discretionary or
ministerial, but whether respondent lacked the power to enter the
order. Mandamus is an appropriate remedy to correct an order
entered by a court that erroneously assumed jurisdiction which the
court did not possess (People ex rel. Bradley v. McAuliffe, 24 Ill. 2d
75, 78 (1962) (collecting cases)) or to expunge a void order entered
by a tribunal without jurisdiction (Daley v. Laurie, 106 Ill. 2d 33, 40
(1985); People ex rel. Carey v. White, 65 Ill. 2d 193, 197 (1976);
People ex rel. Courtney v. Prystalski, 358 Ill. 198, 201-02 (1934)).2
A writ of mandamus will be awarded only if the petitioner establishes
a clear right to the relief requested, a clear duty of the public official
to act, and clear authority in the public official to comply with the
writ. Although mandamus generally provides affirmative rather than
prohibitory relief, the writ can be used to compel the undoing of an
act. Konetski, 233 Ill. 2d at 193 (collecting cases).
Supreme Court Rule 604(d) provides in pertinent part: “No appeal
from a judgment entered upon a plea of guilty shall be taken unless the
defendant, within 30 days of the date on which the sentence is
imposed, files in the trial court ***, if the plea is being challenged, a
motion to withdraw the plea of guilty and vacate the judgment.” Ill.
S. Ct. R. 604(d) (eff. Aug. 1, 1992). This court has repeatedly
observed that our rules are not mere suggestions. Rather, they have
the force of law, and the presumption must be that they will be obeyed
and enforced as written. People v. Houston, 226 Ill. 2d 135, 152
(2007); People v. Campbell, 224 Ill. 2d 80, 87 (2006).
The purpose of Rule 604(d)
“is to ensure that before a criminal appeal can be taken from
a guilty plea, the trial judge who accepted the plea and
imposed sentence be given the opportunity to hear the
allegations of improprieties that took place outside the official
proceedings and dehors the record, but nevertheless were
unwittingly given sanction in the courtroom. Rule 604(d)
provides for fact finding to take place at a time when
witnesses are still available and memories are fresh. [Citation.]
A hearing under Rule 604(d) allows a trial court to
immediately correct any improper conduct or any errors of the
trial court that may have produced a guilty plea.” People v.
Wilk, 124 Ill. 2d 93, 104 (1988).
The rule was designed to eliminate needless trips to the appellate
court and to give the circuit court an opportunity to consider the
alleged errors and to make a record for the appellate court to consider
on review in cases where a defendant’s claim is disallowed. Id. at 106.
Accordingly: “Rule 604(d) establishes a condition precedent for an
appeal from a defendant’s plea of guilty.” Id. at 105. As a general rule,
the failure to file a timely Rule 604(d) motion precludes the appellate
court from considering the appeal on the merits. Where a defendant
has failed to file a motion to withdraw the guilty plea, the appellate
court must dismiss the appeal. People v. Flowers, 208 Ill. 2d 291, 301
(2003) (collecting cases).
In addressing appeals from judgments entered upon guilty pleas,
Rule 604(d) has ramifications not only for the appellate court, but for
circuit courts as well. Article VI, section 9, of the Illinois Constitution
confers upon circuit courts jurisdiction over all justiciable matters. Ill.
Const. 1970, art. VI, §9. “As applied in the context of criminal
proceedings, the term ‘subject matter’ jurisdiction means the power
to hear and determine a given case.” People v. Davis, 156 Ill. 2d 149,
156 (1993). However, once cases are heard and determined, “[t]he
jurisdiction of trial courts to reconsider and modify their judgments is
not indefinite.” Flowers, 208 Ill. 2d at 303. Generally, a circuit court
loses jurisdiction to vacate or modify its judgment 30 days after entry
of judgment. Beck v. Stepp, 144 Ill. 2d 232, 238 (1991); People v.
Heil, 71 Ill. 2d 458, 461 (1978); see Holwell v. Zenith Electronics
Corp., 334 Ill. App. 3d 917, 922 (2002); Weilmuenster v. H.H. Hall
Construction Co., 72 Ill. App. 3d 101, 105 (1979). In Flowers, this
“This 30-day limitation is incorporated into Rule 604(d),
which governs postjudgment motions in cases such as the one
before us where the defendant has pleaded guilty. Where, as
here, more than 30 days have elapsed since sentence was
imposed and the trial court has not extended the limitation
period upon proper application of defendant for good cause
shown, the trial court is divested of jurisdiction to entertain a
defendant’s motion to vacate the judgment or reconsider the
sentence pursuant to Rule 604(d).” Flowers, 208 Ill. 2d at
Therefore, in the present case, by the time defendant filed his motion
to withdraw his guilty plea and vacate his conviction, the circuit court
no longer had the authority to consider it.
However, defendant notes that at the hearing on his guilty plea,
the circuit court indisputably failed to advise him regarding the right
to appeal. “In all cases in which a judgment is entered upon a
negotiated plea of guilty, at the time of imposing sentence,” Supreme
Court Rule 605(c) sets forth admonitions that a defendant must
substantially receive. Ill. S. Ct. R. 605(c) (eff. Aug. 1, 1992). This
court has explained that Rule 605 is a necessary corollary to Rule
604(d). Admonishing defendants regarding the requirements of Rule
604(d) ensures that the ramifications of noncompliance comport with
due process. See People v. Foster, 171 Ill. 2d 469, 472 (1996).
Dismissal of an appeal based on a defendant’s failure to file the
requisite motions in the circuit court would violate due process if the
defendant did not know that filing such motions was necessary.
Flowers, 208 Ill. 2d at 301.
Accordingly, this court has recognized an “admonition exception”
to Rule 604(d). Where a circuit court fails to give applicable Rule 605
admonishments and the defendant attempts to appeal without first
filing the motions required by Rule 604(d), the appeal is not dismissed.
Rather, the appellate court must remand the cause to the circuit court
for strict compliance with Rule 604(d). Id. (collecting cases).
Citing People v. Egge, 194 Ill. App. 3d 712 (1990), defendant
relies solely on the “admonition exception” to Rule 604(d) to avoid
the circuit court’s 30-day jurisdictional limitation. Egge is unavailing.
There, the appellate court stated that the lapse of more than 30 days
from the imposition of sentence generally divests the circuit court of
jurisdiction to entertain a motion to withdraw a guilty plea and vacate
the judgment. However, the court proceeded to recognize the absence
of proper Rule 605 admonishments as an exception to the circuit
court’s 30-day jurisdictional limitation. Id. at 716. This linkage is
erroneous. The admonition exception provided by Rule 605 is for the
appellate court to apply after defendant timely files a notice of appeal
from a guilty plea even though the defendant did not first comply with
Rule 604(d)’s condition precedent of filing a postplea motion in the
circuit court. Flowers, 208 Ill. 2d at 301. The admonition exception
cannot restore jurisdiction to the circuit court after 30 days from entry
of judgment. See, e.g., id. at 306. While the absence of
admonishments is erroneous, the error does not render the judgment
of a circuit court void, so that a defendant can raise the issue at any
time. See People v. Jones, 213 Ill. 2d 498, 509 (2004); Davis, 156 Ill.
2d at 156-57.
Defendant argues that respondent, retaining jurisdiction pursuant
to Egge, had the duty to balance defendant’s untimely filing of his
motion to vacate his guilty plea and vacate his conviction against the
effect of the Rule 605 violation on defendant’s constitutional rights.
However, it is not for the circuit and appellate courts to balance the
filing requirements contained in supreme court rules against claimed
deprivations of constitutional rights. Rather, “the appellate and circuit
courts of this state must enforce and abide by the rules of this court.”
(Emphasis in original.) People v. Lyles, 217 Ill. 2d 210, 216 (2005).
This court has admonished counsel and courts that Rules 402, 604(d),
and 605, which concern guilty pleas:
“are meant to mesh together not only to ensure that
defendants’ constitutional rights are protected, but also to
avoid abuses by defendants. *** [T]hey have been constructed
to conform this State’s criminal justice system to Federal
constitutional standards and to avoid some of the excesses that
both the State and defense counsel occasionally employ while
they attempt to zealously represent their opposing interests.
[Citations.] These rules are not written in a vacuum and they
represent our best efforts at ordering the complex and delicate
process of plea bargains and guilty pleas.” Wilk, 124 Ill. 2d at
Defendant correctly observes that Egge has never been explicitly
overruled. However, it is readily apparent that Egge has been
effectively overruled sub silentio by this court’s subsequent decisions.
We today make explicit what had been implicit in cases like Flowers,
Jones, and Lyles. Egge is no longer valid law.
In the present case, the admonition exception is inapplicable
because defendant did not mistakenly file a timely notice of appeal
without first filing a Rule 604(d) motion in the circuit court. Rather,
defendant filed in the circuit court an untimely motion to withdraw his
guilty plea. The circuit court’s jurisdiction over defendant’s guilty plea
and resulting conviction had long since lapsed by the time defendant
finally asserted his belated request for relief pursuant to Rule 604(d).
Therefore, respondent had no authority to address the Rule 604(d)
motion on the merits. As it is undisputed that defendant’s motion to
vacate his guilty plea was well beyond the time limits permitted by
Rule 604(d), it is clear that respondent should have refused to
entertain the motion and should have dismissed it for lack of
jurisdiction. Even if he had found defendant’s Rule 605 contention
meritorious, respondent could not have granted defendant relief.
For the foregoing reasons, a writ of mandamus is awarded to the
State. Respondent is directed to rescind his April 20, 2010, order and
is further directed to dismiss defendant’s motion for lack of
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