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People v. Barcik6/2/2005
That is to say, DUI is a more serious offense than DWLR. Notwithstanding this fact, the trial court sentenced defendant to an extended term of six years for DWLR. See 730 ILCS 5/5--8--2(a)(6) (West 2002). This was improper. See Smith, 345 Ill. App. 3d at 190. Instead, the trial court should have sentenced defendant to a nonextended term of between one and three years for his DWLR conviction. See 730 ILCS 5/5--8--1(a)(7) (West 2002). We remand defendant's case so that the trial court may do so.
To summarize, defendant's multiple convictions for DUI and his multiple convictions for DWLR violate the "one-act, one-crime" rule. Additionally, the trial court's belated attempt to fix the problem is void and its suggested cure improper. After correcting for these errors, defendant should have been convicted of one count of DUI and one count of DWLR, and he should not have received an extended sentence on the DWLR conviction. Thus, we modify the judgment against defendant and remand his case for resentencing on his DWLR conviction.
Consolidated with the above appeal is defendant's appeal from the trial court's summary dismissal of his post-conviction petition. Unfortunately for defendant, just as the trial court lacked jurisdiction to modify his judgment, this court lacks jurisdiction to consider the merits of his post-conviction arguments. When a defendant wishes to appeal the decision of the trial court, the defendant must file a notice of appeal within 30 days of the entering of the judgment or order he or she wishes to attack. 188 Ill. 2d R. 606(b). The failure to timely file a notice of appeal deprives this court of jurisdiction to consider the merits of the judgment appealed from. People v. Fikara, 345 Ill. App. 3d 144, 152 (2003). Regardless of whether the parties raise the issue, we have an independent duty to consider our appellate jurisdiction. People v. Fuller, 187 Ill. 2d 1, 7 (1999). Here, neither of the parties challenges this court's jurisdiction. Yet, the record shows that defendant's notice of appeal was not filed until more than 30 days after his post-conviction petition was dismissed. Thus, we do not have jurisdiction to consider the merits of defendant's appeal.
The above conclusion is not undermined by appellate counsel's statement that the " notice of appeal was timely mailed from the Department of Corrections on May 5." Although it is true that attached to defendant's notice of appeal is a handwritten letter that appears to be dated May 5, and notwithstanding that a notice of appeal is timely if mailed within 30 days of the entering of the judgment or order appealed from (People v. Blanchette, 182 Ill. App. 3d 396, 399 (1989)), the notation on the attachment to defendant's notice of appeal is insufficient to establish that his appeal is timely. To establish timely mailing, a party must provide proof of mailing. Blanchette, 182 Ill. App. 3d at 399. Here, defendant has provided no such proof. Indeed, even if writing the date of mailing on the notice of appeal were sufficient proof (which it is not), defendant hasn't even done that much. Instead, he simply makes a notation on a handwritten attachment to the notice of appeal; a notation that, assuming it is a date, is likely the date of the letter's writing, which is not necessarily the date of its mailing. Thus, defendant's appeal was not timely, and consequently, this court has no jurisdiction to consider it. See Blanchette, 182 Ill. App. 3d at 399 ("While we recognize this [mailbox] rule, we find no proof of mailing was filed in the instant case. * The appellant has the burden of including those matters in the record necessary for the issues to be reviewed. * Defendant's notice of appeal was not timely").
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