PRACTICAL APPEALS ADVICE - Part Four - PREPARATORY STEPS TO THE APPEAL (CRIMINAL CASES)

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in July, 2006

Parts One and Two in this series of articles discussed some basic considerations in deciding whether to appeal a ruling of the circuit court. Part Three addressed some of the requirements for filing motions for reconsideration and post-trial motions in civil cases. This part continues the discussion of the previous article concerning the equivalent requirements for filing motions for reconsideration and post-trial motions in criminal cases.

MOTIONS FOR RECONSIDERATION OF INTERLOCUTORY ORDERS & POST-TRIAL MOTIONS IN CRIMINAL CASES

A. APPEALABILITY

In contrast to civil cases, the issue of appealability is rarely a difficult question to resolve following a criminal conviction. The most important rule to remember is that the imposition of the sentence, not the entry of the verdict or finding of guilty, is the final judgment in a criminal case.1 Thus, the filing of a notice of appeal prior to the imposition of sentence will not invoke the jurisdiction of the Appellate Court. However, in a limited number of cases, the Supreme Court rules permit the filing of interlocutory appeals, that is, requests for review of certain aspects of the case prior to the entry of a conviction. Supreme Court Rule 604 contains a number of provisions allowing interlocutory appeals either by the State, the defense, or both parties. Examples include the denial of a defense motion to bar the prosecution based on double jeopardy principles,2 the entry of a finding of unfitness for trial or sentencing,3 and motions to reduce bail.4 In the case of a motion for discharge based on a double jeopardy claim, the defendant may either appeal the denial of the motion prior to trial or following the imposition of sentence.5

B. MOTIONS TO RECONSIDER INTERLOCUTORY ORDERS

I am not aware of any authority requiring either the defense or the prosecution to file motions to reconsider challenging the entry of interlocutory orders prior to the filing of a notice of interlocutory appeal. In fact, if filing such a motion results in a ruling more than 30 days after entry of the order to be challenged on appeal, the party may lose the right to appeal on an interlocutory basis.6

C. NECESSITY OF POST-TRIAL MOTIONS FOLLOWING BENCH TRIALS

Since 1963, post-trial motions have been required following bench trials in criminal cases. The failure to file a post-trial motion only permits you to raise the following issues on appeal: (1) constitutional issues properly raised at trial and which can be raised in a post-conviction petition; (2) the sufficiency of the evidence to convict beyond a reasonable doubt; and (3) plain error.7, 8

The waiver rule normally applies to issues sought to be raised following a stipulated bench trial. Thus, a post-trial motion is required to preserve error on appeal following the use of this procedure.9 However, if the State agrees that the purpose of the stipulation is the preservation of the right to appeal, then the waiver rule will not be applied.10 But, as I have cautioned many times before, why tempt fate by leaving the door open to a waiver argument when you can readily prepare a post-trial motion.

D. NECESSITY OF POST-TRIAL MOTIONS FOLLOWING JURY TRIALS

The same section of the Code of Criminal Procedure that requires the filing of post-trial motions in bench trials also compels such a motion after the return of jury verdicts.11 The failure to file a motion limits the contentions that may be raised on appeal to the same extent as when the motion is not filed after bench trials, subject to the same exception referred to in footnote 8.

E. TIMELINESS OF POST-TRIAL MOTIONS

Post-trial motions must be filed within 30 days following the entry of guilty findings or verdicts.12 Most practitioners know that the 30-day deadline is enforced only intermittently. However, you should be aware that the trial court has discretion to deny leave to file a motion for new trial presented more than 30 days after the entry of a verdict or finding.13 On the other hand, the trial court also has discretion to grant a new trial until the time of sentencing, so that no jurisdictional bar prevents a court from entertaining a post-trial motion that is not timely filed.14

F. SUFFICIENCY OF POST-TRIAL MOTIONS

The post-trial motion must be specific with respect to the issues raised.15 General, non-specific allegations that the court erred in overruling all defense objections to the admission of evidence or by sustaining all prosecution objections preserve nothing for appeal.16 A good example of the application of the waiver rule is the case of People v. Bass, 220 Ill.App.3d 230, 238-239 (1st Dist., 1991). In Bass, defense counsel filed a pre-trial motion to suppress evidence on the basis that the police lacked probable cause to arrest the defendant. During the course of the motion, counsel mentioned that the search warrant was not specific in naming the premises to be searched, but did not articulate an argument that the warrant was invalid on that basis. On appeal, the reviewing court determined that the defense did not preserve the issue of the insufficiency of the search warrant based on the inadequacy of the description of the premises. Thus, even though a motion to quash was filed, it did not preserve all conceivable, but unarticulated, arguments.17

A good discussion of the steps required to preserve an issue for review appears in People v. Cauthen, 51 Ill.App.3d 516, 521 (1st Dist., 1977). In that case, the defense presented a pre-trial motion alleging the unconstitutionality of a discovery rule. The reviewing court ruled that the defense did not waive this claim by failing to mention the substance of the argument in the post-trial motion. Instead, the issue was adequately preserved by a simple claim of the erroneous denial of the pre-motion.

The teaching of Bass and McCauthen is that claims are adequately preserved for appeal if they are specifically articulated in the trial court and the post-trial motion alleges words to this effect: "The trial court erred by denying the defense motion to declare unconstitutional the statute governing discovery."

G. SUCCESSIVE POST-TRIAL MOTIONS

By case law, the time for filing an appeal cannot be extended by the filing of successive post-trial motions following the denial of the first such motion.18 Just to confuse you, the trial court may consider a successive post-trial motion and the defense may still preserve the right to appeal as long as the notice of appeal is filed within 30 days of the ruling on the first motion.19

H. CROSS-APPEALS

See Part Five in this series scheduled for publication next month.

Footnotes

1. People v. Caballero, 102 Ill.2d 23 (1984); "Post-Sentencing Motions in Criminal Cases (Part One) Or 'I thought I was Finished with this Client' ", Bar Briefs, June 2004

2. Supreme Court Rule 604(f)

3. Supreme Court Rule 604(e)

4. Supreme Court Rule 604(c)

5. "Double Opportunity to Appeal Double Jeopardy Claims", Bar Briefs, November 2005

6. Ibid. (Abbreviated form of "ibidem", Latin, meaning "in the same place", i.e., [id est = that is], repeating the last footnote)

7. People v. Enoch, 122 Ill.2d 176 (1988)
N.B. (Nota Bene, Italian = Note Well) Claims of plain error encompass a multitude of legal arguments.

8. An exception exists where the defense argues claims of error at a post-trial hearing and the State fails to object that the motion was not reduced to writing. People v. Todd, 249 Ill.App.3d 835 (5th Dist., 1993)

9. People v. O'Connor, 313 Ill.App.3d 134 (2nd Dist., 2000); People v. Jones, 311 Ill.App.3d 433 (5th Dist., 2000)

10. People v. Todd, 249 Ill.App.3d 835 (5th Dist., 1993) This procedure can be used to preserve a search and seizure issue raised in a pre-trial motion.

11. 725 ILCS 5/116-1(b)

12. Ibid.

13. People v. Harper, 347 Ill.App.3d 499 (5th Dist., 2004)

14 Ibid.

15. 725 ILCS 5/116-1(c)

16. People v. Grant, 232 Ill.App.3d 93 (1st Dist., 1992); "Practical Appeals Advice - Part One - to Appeal or Not to Appeal," Bar Briefs, December 2005

17. Due to the unusual circumstances of the case, the Appellate Court considered the claim under the plain error rule, but affirmed the conviction.

18. People v. Miraglia, 323 Ill.App.3d 199 (2nd Dist., 2001)

19. People v. Serio, 357 Ill.App.3d 806 (2nd Dist., 2005)

 

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.