delivered the opinion of the court:
Defendant, Maria Tlatenchi, appeals from an order of the circuit court granting the State’s motion to dismiss her pro se motion to withdraw her guilty plea. On appeal, defendant contends that: (1) the trial court erred in dismissing her motion to withdraw her guilty plea as untimely; (2) defense counsel failed to comply with the requirements of Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)); and (3) the trial court failed to properly admonish her as required by Supreme Court Rule 605(c) (210 Ill. 2d R. 605(c)).
On February 21, 2006, defendant indicated her desire to plead guilty to the charge of first degree murder (720 ILCS 5/9 — 1(a)(3) (West 2002)) in exchange for a sentence of 45 years’ imprisonment. Before accepting that plea, the trial court admonished defendant of the possible range of penalties that could attach to that offense and ascertained defendant’s understanding of her trial rights and waiver of those rights. Defendant confirmed that the plea was the product of her own free will and that no threats or promises were made to her to induce her to plead guilty. The trial court also admonished defendant that if she was not a United States citizen, a conviction for first degree murder could have the consequence of deportation, exclusion of admission to the United States, or the denial of naturalization. Defendant indicated that she understood.
The State then offered the following factual basis for the plea. According to an oral statement defendant gave to Detective Richard Ben-bow, on December 14, 2003, defendant and two others robbed a restaurant located at Old Orchard Mall in Skokie, Illinois. Approximately $2,000, multiple rolls of quarters, and a bank statement were taken from the restaurant during the robbery, of which defendant retained approximately $400 in cash and some of the rolls of quarters. During the robbery, defendant’s brother, Pablo Tlatenchi, struck the victim in the head, stabbed her approximately four times in the neck, and then smashed her head on the floor. The victim, who was the restaurant’s co-owner, Jung Yon Jun, subsequently died of multiple stab wounds and blunt trauma to the head. Police later recovered the bank statement and five rolls of quarters from defendant’s apartment. Police found human blood and a fingerprint on the bank statement, and analysis revealed that the fingerprint was made by defendant and that the DNA profile of the blood matched defendant’s DNA profile. Police also found a piece of paper near the victim’s body on which there was a partial shoe impression. Further analysis determined that the shoe impression matched a woman’s shoe found in defendant’s apartment and that sweat from inside that shoe matched defendant’s DNA profile. The factual basis for the plea also established that defendant subsequently gave a court-reported statement to an assistant State’s Attorney in which she recounted essentially the same sequence of events regarding the robbery and murder that she had told the police in her oral statement. Defendant was then sworn and she confirmed that she heard the court recite the facts of the case, including that she gave a court-reported statement, and that in her court-reported statement she told police that she committed the armed robbery and that during the robbery she saw Pablo Tlatenchi stab the victim. The court accepted defendant’s plea of guilty, finding that defendant understood the charges against her, the possible range of penalties, and her rights according to the law, that the plea was being entered into freely and voluntarily, and that there was a sufficient factual basis to support the plea. Consequently, the court entered a finding of guilty against defendant and sentenced her in accordance with the terms of the plea agreement.
The trial court then admonished defendant as follows:
“You have a right to appeal that sentence and order. But before you could take an appeal, first you would have to file a motion to vacate or take back your plea of guilty. If you decided to file such a motion, it would have to be filed in writing within thirty days, and it would have to state all the reasons that you think I should consider to allow you to take back your plea of guilty or as to why you think the sentence is not appropriate.
If you cannot afford a transcript of today’s proceedings or an attorney to represent you, those would be provided to you free of charge.
If I [were] to grant such a motion, the plea and sentence that I just entered would be vacated, the charges that were dismissed would be reinstated, and we would then set your matter down for trial.
Do you understand all of that?”
Defendant responded that she understood.
Defendant subsequently filed a pro se motion to withdraw her guilty plea. In that motion, defendant asserted that, “I didn’t know that after pleading guilty, you didn’t have any rights, and I was told that if I would go to trial, I would get the life and I didn’t commit the 9 — 1. I want it [sic] a bench trial.” The envelope containing the motion was postmarked March 24, 2006, and the actual motion was file-stamped by the clerk of the court on March 27, 2006. In an “affidavit” attached to the motion, defendant states that she has read and signed the foregoing document and that the statements contained therein are true. The “affidavit” was also file-stamped on March 27, 2006, but it is not dated or notarized. Another document attached to the motion, which was also file-stamped on March 27, 2006, contains a proof of service in which defendant states that she placed the motion in the prison mail system on March 15, 2006. On the same document, below the proof of service, is a “Verification” signed by defendant which states that, “[ujnder penalties as provided by law pursuant to sec. 1 — 109 of the Code of Civil Procedure, I certify that the statements set forth in the foregoing motion and this affidavit are true and correct except as to matters therein stated to be on information and belief, and as to such matters I certify that I believe the same to be true.” Neither the proof of service nor the verification is notarized. Finally, a handwritten note is attached to the motion in which defendant states that, “I’m very sorry, but I couldn’t send this papers on time, because I am in in-take so I couldn’t get this paper before my deadline. I don’t have any movement, I cannot go to the law library.”
After receiving defendant’s motion, the trial court appointed the public defender to represent her. The State then made an oral motion to dismiss defendant’s motion as untimely. Defense counsel responded that the proof of service demonstrated that the motion was timely filed and stated that he had spoken with defendant, who indicated that she did “hand it to the CO in her division on the proper date.” The trial court found that the proof of service attached to defendant’s motion was “not sufficient to establish that it was properly placed in the U.S. mail in a timely manner,” and granted the State’s motion to dismiss. The court noted that the proof of service lacked “notarization,” and that defendant’s own handwritten statement indicated that the motion was not placed in the prison mail prior to the 30-day deadline. This appeal followed.
Defendant first contends that the trial court erred in dismissing her motion to withdraw her guilty plea as untimely.
Supreme Court Rule 604(d) requires that a motion to withdraw a guilty plea and vacate the judgment be filed within 30 days of the date on which sentence is imposed. 210 Ill. 2d R. 604(d). The lapse of more than 30 days from sentencing divests the circuit court of jurisdiction to entertain the motion. People v. Flowers,
In this case, defendant pled guilty and was sentenced on February 21, 2006. Accordingly, she had until March 23, 2006, to file a motion to withdraw her guilty plea. 1 Defendant’s motion was file-stamped by the clerk of the court on March 27, 2006, which is after the 30-day filing period.
However, an incarcerated defendant’s motion to withdraw a guilty plea is considered timely filed if it is placed in the prison mail system within the 30-day period, regardless of the date on which the motion is received or file-stamped. People v. Aldridge,
The primary issue in this case is whether defendant’s mailing was sufficient to preserve a timely filing date. This issue necessarily requires us to further determine the manner by which defendant was required to prove that her motion was deposited into the prison mail system on a timely date when the motion was received by the circuit court after the 30-day filing period had elapsed.
During oral arguments on this case, we asked the parties to submit additional briefing on the issue of whether Supreme Court Rule 12(b)(3) (145 Ill. 2d R. 12(b)(3)) governs the manner by which defendant proves that she deposited the motion to withdraw her guilty plea into the prison mail system. Defendant asserts that Rule 12(b)(3) has no applicability to the present case because that rule provides only how to prove service of a paper on a party and does not pertain to filing a pleading by mail. However, a review of Rule 12 as well as the case law pertaining to the “date of mailing” rule leads us to conclude that Rule 12(b)(3) governs the manner by which defendant proves that she mailed her motion to withdraw her guilty plea when relying upon the date of mailing to constitute the date of filing.
Initially, we believe that the language of Rule 12 indicates that the rule applies to the filing of a motion or pleading by mail. We interpret a supreme court rule in the same manner as a statute. In re Estate of Rennick,
Supreme Court Rule 12, entitled “Proof of Service in the Trial and Reviewing Courts; Effective Date of Service,” provides in relevant part:
“(a) Filing. When service of a paper is required, proof of service shall be filed with the clerk.
(b) Manner of Proof. Service is proved:
(1) by written acknowledgment signed by the person served;
(2) in case of service by personal delivery, by certificate of the attorney, or affidavit of a person, other than an attorney, who made delivery;
(3) in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid[.]
(c) Effective Date of Service by Mail. Service by mail is completed four days after mailing.” 145 Ill. 2d R. 12.
Subsection (a) of Rule 12 states that when service of a paper is required, proof of service shall be filed with the clerk. Supreme Court Rule 2 defines “paper” as a “pleading, motion, notice, affidavit, memorandum, brief, petition, or other paper or combination of papers required or permitted to be filed.” (Emphasis added.) 134 Ill. 2d R. 2(b)(3). Thus, Rule 12 does apply to a motion to withdraw a guilty plea, which is required to be filed in the circuit court, and in this case, in order for defendant to file the motion to withdraw her guilty plea, she was required to serve that motion on the clerk of the circuit court. Although defendant claims that the rule applies only to service on a party, Rule 12(a) plainly states that proof of service shall be filed when “service of a paper is required.” 145 Ill. 2d R. 12(a). Moreover, Rule 12(b)(3) applies when a motion is served by mail and states that service by mail is proved by a certificate of the attorney or affidavit of a person other than the attorney who deposited the motion in the mail. In this case, defendant filed the motion to withdraw her guilty plea by serving that motion by mail upon the clerk of the court. Thus, in order to prove that she deposited her motion in the prison mail system, the rule requires defendant to file, along with her motion, an affidavit stating the time and place of mailing, the address on the envelope, and the fact that proper postage was prepaid.
In fact, it appears that defendant was aware of this requirement. Defendant filed a proof of service along with her motion that tracks all of the requirements of Rule 12(b)(3). In that proof of service, defendant states that she “served” a copy of her motion by placing it in the prison mail system on March 15, 2006, that the envelope containing that motion was addressed “as is disclosed by the pleadings of record,” and that she requested that the appropriate prison official affix the envelope with fully prepaid postage.
In addition to the language of Rule 12, a review of the case law pertaining to the “date of mailing” rule convinces us that Rule 12(b)(3) governs the manner by which defendant proves she placed the motion to withdraw her guilty plea into the prison mail system.
The origin of the “date of mailing” rule is found in Supreme Court Rule 373. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing,” provides:
“Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing shall be deemed the time of filing. Proof of mailing shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court.” (Emphasis added.) 155 Ill. 2d R. 373.
In Harrisburg-Raleigh Airport Authority v. Department of Revenue,
The extension of the “date of mailing” rule to the filing of notices of appeal was subsequently incorporated into the language of Rule 373. Following the decision in Harrisburg-Raleigh, Rule 373 was amended to include a concluding sentence stating that, “[t]his rule also applies to the notice of appeal filed in the trial court.” 155 Ill. 2d R. 373; see also 155 Ill. 2d R. 373, Committee Comments, at clxvii (“Reference to the notice of appeal coming within the scope of the rule is a reflection of existing law (see Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989),
Finally, although the court in Harrisburg-Raleigh expressed no opinion as to whether the “date of mailing” rule would apply to post-trial motions filed in the trial court, the appellate courts of this state have subsequently applied the rule to various posttrial motions. See People v. Simmons,
Our review of the case law pertaining to the “date of mailing” rule thus establishes that if a notice of appeal or any paper required to be filed in the reviewing court is filed by mail and received after the due date, then the date of mailing is deemed to be the date of filing. More importantly for purposes of the issue before us on appeal, proof of mailing under these circumstances is established by filing a proof of service that complies with the requirements of Rule 12(b)(3). Thus, Rule 12(b)(3) does not apply only to proof of service on a party, as defendant contends, but rather the rule also governs the manner by which a party proves that it mailed a notice of appeal or any paper filed in the reviewing courts when that party is relying upon the date of mailing as the date of filing.
We therefore conclude that when a defendant’s motion to withdraw a guilty plea is received by the circuit court after the 30-day time period, and the defendant is thereafter relying upon the date of mailing as the date of filing, proof of mailing shall be as provided by Rule 12(b)(3). As the case law discussed above makes clear, in each situation in which our supreme court has applied the “date of mailing” rule, the court has also required that proof of mailing “shall” be as provided by Rule 12(b)(3). (Emphasis added.) 155 Ill. 2d R. 373. We can discern no reason why the same requirement regarding Rule 12(b)(3) would not also apply to a motion to withdraw a guilty plea when a defendant is relying upon the “date of mailing” rule to establish that such a motion was timely filed. Adopting such a requirement is therefore consistent with the supreme court rules and would also maintain a uniform body of precedent in that proof of mailing documents to the reviewing court, proof of mailing a notice of appeal, and proof of mailing a motion to withdraw a guilty plea would all be as provided by Rule 12(b)(3).
In reaching this conclusion, we find unpersuasive defendant’s assertion that the decision in People v. Saunders,
Having concluded that defendant’s proof of service was required to comply with Rule 12(b)(3), we must now determine whether the proof of service attached to defendant’s motion complies with the rule such that it preserved the timely filing date recited therein. We conclude that it does not.
As noted, Rule 12(b)(3) states that service by mail is proved by an “affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid.” (Emphasis added.) 145 Ill. 2d R. 12(b)(3). Our supreme court has explained that an affidavit has been consistently defined for over 100 years as simply “ ‘a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit.’ ” Roth v. Illinois Farmers Insurance Co.,
In this case, although defendant’s proof of service tracks the language of Rule 12(b)(3), the proof of service is not “sworn to by a party before some person who has authority under the law to administer oaths” (Roth,
Defendant acknowledges that her proof of service is not notarized, but claims that her verification under section 1 — 109 of the Code of Civil Procedure (735 ILCS 5/1 — 109 (West 2006)), found below the proof of service, was the equivalent of a notarized certificate of mailing and was therefore sufficient to attest that she mailed her motion on the date specified within the proof of service. We disagree.
Section 1 — 109 of the Code provides:
“Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any *** document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.
***
Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.
Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.” 735 ILCS 5/1 — 109 (West 2006).
By its express terms, section 1 — 109 provides that whenever the Code of Civil Procedure requires a document to be “sworn to or verified under oath,” then verification under penalty of perjury is an acceptable substitute. Section 1 — 109 does not indicate, however, that such verification is an acceptable substitute when a statute other than the Code of Civil Procedure requires a document to be sworn to or verified under oath. See Mashni Corp. v. Laski,
In light of that conclusion, we reject defendant’s contention that her motion to withdraw her guilty plea was timely filed. As noted, the proof of service attached to defendant’s motion is not notarized, i.e., sworn to before a person who has authority under the law to administer oaths, and therefore does not constitute the affidavit required by Rule 12(b)(3). Moreover, defendant’s verification pursuant to section 1 — 109 is not a substitute for the requisite affidavit. Accordingly, we conclude that defendant’s proof of service is insufficient to establish that her motion was mailed on a timely date and, therefore, defendant’s motion to withdraw her guilty plea was properly dismissed as untimely.
We note that our holding regarding Rule 12(b)(3) does no more than articulate what courts have already implicitly required when applying the “date of mailing” rule to various posttrial motions. In almost every case in which the appellate courts of this state have found that a posttrial motion was timely filed based upon the “date of mailing” rule, the courts have relied upon a notarized proof of service that recited a timely mailing date. See, e.g., People v. Wade,
Under Roth, had the proofs of service in these cases not been notarized, they would have simply constituted declarations or statements and would therefore not have satisfied Rule 12(b)(3). See Roth,
Additionally, in other cases courts have relied upon a proof of service signed by the party’s attorney in finding that a posttrial motion was mailed on a timely date. For example, in A.S. Schulman Electric Co. v. Village of Fox Lake,
These decisions are also entirely consistent with the requirements of Rule 12(b)(3). As noted, Rule 12(b)(3) states that service by an attorney is proved by a “certificate of the attorney” (145 Ill. 2d R. 12(b)(3)), and therefore the proofs of service in these cases did not need to be notarized and instead were sufficient because they were signed by the attorney who placed the motions into the mail.
In reaching our conclusion regarding Rule 12(b)(3), we reject defendant’s assertion that the Second District Appellate Court’s decision in People v. Rivera,
We also reject defendant’s assertion that, based upon our supreme court’s decision in Robidoux v. Oliphant,
We finally note that, while defendant’s appeal from the dismissal of her motion to withdraw her guilty plea was pending, our supreme court issued its decision in Secura Insurance Co. v. Illinois Farmers Insurance Co.,
The supreme court reversed and held that the defendant’s mailing, which did not include a certificate or affidavit of mailing, failed to fulfill the requirements of proof pursuant to Rule 12(b)(3). The court noted that a party must file a proper proof of mailing as required by Rule 12(b)(3) in order to take advantage of Rule 373 because without such proof of mailing “there is nothing in the record to establish the date the document was timely mailed to confer jurisdiction on the appellate court.” Secura,
Our holding in this case is entirely consistent with the decision in Secura. As in Secura, the issue in this case is not merely about a slight defect in defendant’s proof of service and this is also not a case in which defendant’s motion was accompanied by an affidavit or certificate of an attorney attesting to the date the motion was mailed which had a mere “typographical error, misspelling, or other inadvertent mistake.” Secura,
Defendant next contends that this case must be remanded because defense counsel failed to file a certificate of compliance pursuant to Supreme Court Rule 604(d) and because counsel did not perform the duties required of him pursuant to that rule. We disagree.
The record shows that defendant’s motion to withdraw her guilty plea was file-stamped by the clerk of the court on March 27, 2006. On April 4, 2006, counsel who had previously represented defendant informed the court that they were not requesting leave to represent defendant on her pro se motion and suggested the court appoint other counsel. The circuit court then appointed the public defender’s office to represent defendant. On April 21, 2006, an assistant public defender accepted appointment of the public defender’s office as counsel for defendant. At that point, the State moved to dismiss defendant’s motion as untimely. Counsel for defendant argued that the proof of service on defendant’s motion recited a timely mailing date and added that defendant had informed him that she handed the motion to the correctional officer in her division on the proper date. The court then dismissed the motion.
As noted, Supreme Court Rule 604(d) requires that a motion to withdraw a guilty plea be filed within 30 days of the date on which sentence is imposed. 210 Ill. 2d R. 604(d). If the motion is not filed within the 30-day time limit, the trial court is divested of jurisdiction to entertain defendant’s motion. Flowers,
In this case, regardless of the fact that counsel was appointed before the timeliness of defendant’s motion was considered, the trial court ultimately dismissed the motion as untimely. Once the trial court made that determination, it was divested of jurisdiction to consider the merits of defendant’s motion. Flowers,
Defendant’s final contention is that the trial court failed to properly admonish her pursuant to Rule 604(d) and that this case must therefore be remanded to the trial court for proper admonishments.
Because defendant entered into a negotiated guilty plea, the trial court was required to admonish her pursuant to Rule 605(c). People v. Dunn,
“(1) that the defendant has a right to appeal;
(2) that prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as part of a plea agreement will be reinstated and will also be set for trial;
(5) that if the defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant’s plea of guilty and sentence will be provided without cost to the defendant and counsel will be appointed to assist the defendant with the preparation of the motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw the plea of guilty shall be deemed waived.” 210 Ill. 2d R. 605(c).
The trial court must strictly comply with the admonishment requirements of Rule 605(c). People v. Claudin,
Defendant first claims that the trial court failed to advise her that any issue not raised in her motion to withdraw her guilty plea would be waived on appeal. However, the trial court specifically advised defendant that the motion to withdraw her guilty plea “would have to state all the reasons that you think I should consider to allow you to take back your guilty plea or as to why you think the sentence is inappropriate.” (Emphasis added.) Defendant also claims that the court erroneously advised her that she had a right to appeal her sentence whereas, under Rule 605(c)(2), her only remedy was to file a motion to withdraw her guilty plea. However, the record clearly shows that the trial court admonished defendant that before she could appeal her sentence she would have to file a motion to withdraw her guilty plea. We also note that defendant indicated that she understood this admonishment and that defendant did in fact file a motion to withdraw her guilty plea instead of filing a notice of appeal. See Claudin,
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
Affirmed.
J. GORDON and CAHILL, JJ., concur.
Notes
The parties do not dispute that defendant had until March 23, 2006, to file a motion to withdraw her guilty plea.