delivered the opinion of the court:
In this consolidated appeal, we are asked to determine whether the failure of a trial court to consider a defendant’s criminal history before it accepts a negotiated guilty plea allows the defendant to replead. We hold that while a defendant may obtain a new sentencing hearing in such a situation, his guilty plea stands.
I. BACKGROUND
Defendant, Kevin G. Walton, was charged in three separate indictments with four counts of armed robbery (720 ILCS 5/18 — 2(a)(1) (West 2002)) (case No. 02 — CF—2498); two counts of attemрted armed robbery (720 ILCS 5/8 — 4(a), 18 — 2(a)(1) (West 2002)) and one count of aggravated battery (720 ILCS 5/12 — 4(b)(8) (West 2002)) (case No. 02 — CF—2499); and one count of armed robbery (720 ILCS 5/18— 2(a)(1) (West 2002)) (case No. 02 — CF—2500). On March 4, 2003, pursuant to a negotiated plea, defendant pleaded guilty to two counts оf armed robbery and one count of attempted armed robbery. In exchange, the State nol-prossed the remaining charges, and the parties agreed to a 14-year prison sentence. The trial court admonished defendant pursuant tо Supreme Court Rule 402 (177 Ill. 2d R. 402). It accepted the plea and imposed the agreed-upon sentence.
In a letter dated March 17, 2003, defendant moved to withdraw his guilty plea on the ground of ineffective assistance of counsel. On April 2, 2003, defendant moved to reduce his sentence due to ineffective assistance of counsel and lack of evidence. Defendant subsequently informed the court that he wanted to proceed with only the motion to withdraw his guilty plea. The trial court аppointed new counsel for defendant and allowed the public defender to withdraw. Defense counsel filed a certificate under Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) and an amended motion to withdraw the guilty plea. In the amended motion, he argued, inter alia, that the trial court had failed to consider a presentence report.
Following a hearing, the trial court denied the amended motion. Defendant timely appealed. On appeal, defendant argues that the trial court improperly accepted his guilty plea, because it imposed the agreed-upon sentence without considering a presentence report or making a finding as to defendant’s criminal history, in violation of section 5 — 3—1 of the Unified Cоde of Corrections (730 ILCS 5/5 — 3—1 (West 2002)). Defendant maintains that, as a result, this court should vacate his convictions, remand the case, and allow him to plead anew. We affirm in part, vacate in part, and remand.
II. ANALYSIS
The applicable version of sеction 5 — 3—1 states, in relevant part:
“Presentence Investigation. A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, thе court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.” 730 ILCS 5/5 — 3—1 (West 2002).
Cf 730 ILCS 5/5 — 3—1 (West Supp. 2003).
The presentence report is a mandatory legislative requirement that cannоt be waived except in accordance with the statute’s exception. People v. Youngbey,
In this case, the record does not include a presentence report, nor is thеre any indication that the trial court made a finding as to defendant’s history of delinquency or criminality. Thus, the trial court failed to comply with section 5 — 3—1.
Defendant additionally argues that Supreme Court Rule 402(d)(2) (177 Ill. 2d R. 402(d)(2)) requires that a trial court consider a defendant’s criminal history before it accepts a negotiated guilty plea. We disagree. Rule 402(d)(2) states that if the parties reach a “tentative plea agreement,” the trial judge “may” permit them to disclose the agreement before the tender of the plea. 177 Ill. 2d R. 402(d)(2). Before the trial judge indicates whether he will concur in the proposed disposition, the trial judge may also receive, with the defendant’s consent, evidence in aggravation and mitigation. 177 Ill. 2d R. 402(d)(2). Rule 402(d)(2) is inapplicablе to the instant case, as the parties did not present the trial court with a tentative plea agreement. Also, contrary to defendant’s argument that the rule requires that a trial court consider the defendant’s criminal history, the rule refers to general evidence in aggravation and mitigation, and the rule’s language is permissive.
Returning to section 5 — 3—1, the State argues that the trial court’s noncompliance with the statute should not result in a remand of the case. The State cites People v. Berry,
Thе State further argues that a remand is not necessary because defendant did not have any other criminal convictions
This case is similar to Evans I. There, pursuant to a negotiated plea, the defendant pleaded guilty to several crimes аnd received the agreed-upon sentences. At the hearing, the State’s Attorney mentioned that the defendant had no prior felony record. Evans I,
“In order for the trial court not to order a presentence investigation report, the parties must agree on a specific sentencing recom-' mendation and section 5 — 3—1 must be strictly complied with in establishing defendant’s history of criminality and delinquency, including the disposition made of those charges. It cannot be left to guesswork.” Evans I,273 Ill. App. 3d at 256 .
The appellate court held that the trial court had failed to strictly comply with sеction 5 — 3—1. It affirmed the defendant’s convictions, vacated his sentences, and remanded the cause for a new sentencing hearing. Evans I,
Defendant argues that, unlike in Evans I, we should vacate his convictions in addition to his sentences. Defendant rеlies on another case involving the same defendant. See People v. Evans,
The State appealed to the supreme court, and the case was consolidated with another appeal. Thе State argued that the provisions of Rule 604(d) relating to motions to reconsider did not apply to negotiated pleas. According to the State, a defendant must withdraw his guilty plea in order to challenge his sentence, because it would be fundamentally unfair for the defendant to obtain the benefits of the
The supreme court agreed with the State, reasoning as follows. A trial court may accept a guilty plea only after certain admonishments to the defendant, and entering a guilty plea is a “ ‘grave and solemn act.’ ” Evans II,
Defendant argues that “[ujnder the circumstances of this case, because the judge improperly accepted the guilty plea, in order to return the parties to the status quo, the entire plea agreement must be vacated.” We disagree. Evans II addressed whether a defendant could move tо reconsider his sentence without moving to withdraw his guilty plea, which is not the issue presented in the instant case. Here, although the trial court should not have imposed the agreed-upon sentence without considering defendant’s criminal history, the trial сourt’s error does not equate to a problem with the negotiation process or a failure to properly admonish defendant. The trial court’s error also does not invalidate defendant’s guilty plea, as both the State and defendаnt are still bound by the terms of the agreement. Only the trial court’s approval of the sentence was flawed.
Thus, in accordance with Evans I, we vacate defendant’s sentence and remand the cause for a new sentencing hearing. See also People v. Childress,
III. CONCLUSION
For the foregoing reasons, we affirm defendant’s convictions, vacate his sentence, and remand the cause to the Du Page County circuit court for a new sentencing hearing.
Affirmed in part and vacated in part; cause remanded with directions.
O’MALLEY, PJ., and RAPALA, J., concur.