delivered the opinion of the court:
Harley Lee Nichols was indicted in the circuit court of Kendall County on two counts of unlawful possession of a controlled substance with intent to deliver, 82 — CF—84 (cocaine) and 82 — CF—85 (lysergic acid diethylamide (LSD)). (Ill. Rev. Stat. 1981, ch. SGVa, pars. 1401(a)(2), 1401(a)(7).) A jury found the defendant guilty on both counts and the trial court sentenced him to concurrent terms of 30 years on both counts and assessed fines of $200,000 for the cocaine conviction and $80,000 for the LSD conviction.
In the course of execution of a search warrant issued for the defendant’s residence in Oswego on August 18, 1982, a number of keys were recovered from the pocket of defendant’s blue jeans. Other items seized from the den area of the defendant’s residence were a balance scale, razor blades, a plastic grinder, brown glass bottles, glass beakers, and a book on cocaine. After investigation, it was discovered that two of the keys were for safety deposit box F-9 at the Merchants National Bank in Aurora. A search of box F-9 pursuant to warrant yielded several bags containing suspected controlled substances, and field tests revealed the possible presence of cocaine and LSD. Subsequent tests confirmed the bags contained a total of 713 grams of pure cocaine and approximately 8,000 “microdots” (tablets) of LSD.
On appeal these issues are presented: (1) whether the appeal should be dismissed in light of defendant’s appeal waivers; (2)
The State concedes the latter two issues. The State concurs in defendant’s argument that he is entitled to $670 credit against his fine because he was incarcerated for 134 days. (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 14; People v. Stevens (1984),
The State also agrees that simultaneous possession of more than one type of a controlled substance by the defendant constitutes but a single offense for which there can be only one conviction. (People v. Manning (1978),
As part of a negotiated plea agreement in his contemporaneous prosecution for narcotics racketeering (trial court No. 82 — CF— 68), the defendant agreed to waive his right to appeal his instant convictions for unlawful possession with intent to deliver cocaine and LSD. (Trial court Nos. 82 — CF—84 (cocaine) and 82 — CF—85 (LSD).) His signed waivers appear in the respective common law records.
The State contends the defendant is estopped from maintaining the instant appeal by virtue of those waivers. The contention is a reassertion of one of the bases set forth in its previously filed motion to dismiss the defendant’s appeal. The defendant was given leave to respond, and the State’s motion, first ordered to be taken with the case by one panel, was later denied by another panel of this court. In reply
In fact, rulings on such motions made in the reviewing court are not unassailable, and are open to reconsideration. (94 Ill. 2d R. 361; Schwind v. Mattson (1974),
In Schwind, the court held that a denial of a motion to dismiss an appeal does not preclude a subsequent dismissal on the same grounds suggested in the motion based upon a plenary consideration of the briefs, arguments of counsel, and trial record. (Schwind v. Mattson (1974),
Upon full consideration of the motions, briefs, and record at bar, we believe that the dismissal of the instant appeal is supported by the law and the record.
The case of People v. Fearing (1982),
In the case at hand, defendant’s pro se notice of appeal was not timely filed, and his appellate defender’s motion for leave to file a late notice of appeal was granted concurrently with this court’s denial of the State’s motion to dismiss. The other matters addressed by way of motion prior to this appeal being placed on the call were undoubtedly precipitated in the first instance by the defendant’s appeal waivers. We note that there was no ruling on the defendant’s motion filed in the trial court to vacate his sentences on his cocaine and LSD possession convictions. Vacation of the sentences was sought in order to afford defendant’s trial counsel an opportunity to file and to have a hearing on a post-trial motion; somewhat unusually, only 19 days had elapsed between the court’s entry of the judgment on the jury’s verdicts on December 10, and defendant’s sentencing on December 29. Ordinarily, the delay between judgment and sentencing is longer than 30 days, during which time period the presentence report is prepared and the defendant files his post-trial motion pursuant to section 116— 1 or section 116 — 2 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38,' pars. 116 — 1, 116 — 2.) Apparently as a consequence of defendant’s waiver of his right to appeal, his motion to vacate sentence was never ruled on, and no post-trial motion was ever filed.
With reference once again to People v. Fearing, the court there agreed with the defendant’s claim that because the appeal waiver operates much like a guilty plea in that it insulates the convictions from review, the defendant should be admonished what specific rights are being waived by such an appeal waiver. After reviewing the record of the entry of the defendant’s plea there, the court concluded the judge did fully admonish the defendant concerning the appeal waiver and accordingly concluded he knowingly and voluntarily waived his right to appeal. (People v. Fearing (1982),
In his response to the State’s motion, the defendant contends that because he “is presently preparing to attack” by way of post-conviction petition the plea entered by him on the narcotics racketeering charge, the instant appeal waivers “cannot be viewed as final until said post-conviction proceeding is resolved.” To the contrary, however, we believe the appeal waivers must be considered valid and enforceable at least until such time as the guilty plea is set aside.
Defendant’s response provides no clue as to his grounds for bringing the proposed post-conviction petition. When the appellate defender was appointed in the instant appeal, on March 3, 1983, the court remarked it believed defendant’s pro se notice of appeal was contrary to the terms of his plea agreement. Pertinent here, the court further noted that the defendant had also filed a motion to withdraw his guilty plea to narcotics racketeering. Defendant makes no reference regarding what relief, if any, he may have obtained on direct review. Clearly issues which have been or could have been raised in the trial court or on direct appeal are precluded from further review by way of post-conviction petition. (People v. Gaines (1984),
Considering that when, or if, the post-conviction petition was filed is not known and that any final judgment entered on such petition could itself be reviewed (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 7), any relief to be gained by the defendant by virtue of his post-conviction petition is speculative and remote.
In his motion for leave to file late notice of appeal pursuant to Supreme Court Rule 606(c) (87 Ill. 2d R. 606(c)), it is explained that timely notice of appeal was not filed due only to the fact the defendant had signed appeal waivers. “After reconsidering his situation,” however, defendant decided “to submit various contentions of error in causes 82 — CF—84 and 85 for review.” At the time the motion to file late notice of appeal was filed, this court had ordered that the State’s motion to dismiss be taken with the case, and defendant alleged leave should be granted “at least for the purpose of litigating the validity of the waiver of his right to appeal.” When leave to file late notice was
For the reasons set forth above, the judgment of the circuit court of Kendall County in case No. 82 — CF—85, the conviction for unlawful possession of a controlled substance (lysergic acid diethylamide) with intent to deliver, is vacated. In case No. 82 — CF—84, the defendant is directed to make application for credit in the amount of $670 upon the fine imposed therein, and the clerk of the circuit court, upon receipt of said application, is directed to credit the defendant for said amount upon the fine imposed therein.
The balance of the matters appealed from are hereby dismissed pursuant to the appeal waiver executed by the defendant in trial court case No. 82 — CF—68.
Vacated in part and appeal dismissed in part.
SCHNAKE and STROUSE, JJ., concur.
