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

2 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,

, ¶¶ 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

3 ¶ 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,

(2008); People v. Stevenson,

. 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,

(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,

(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,

(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,

.

¶ 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

4 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,

(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,

(quoting People v. Henry,

(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,

(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."

. 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.

5 ¶ 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.

6