This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2005
Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Part Two builds on those general principles by providing specific examples of actions that circuit courts may take in criminal cases following the filing of a timely, properly drafted notice of appeal.
ACTIONS TRIAL COURTS MAY TAKE IN CRIMINAL CASES FOLLOWING THE FILING OF THE NOTICE OF APPEAL
1. Dismissal of the appeal
I mentioned in Part One that the trial court retains jurisdiction to dismiss appeals when post-judgment motions have not been resolved, as well as prior to the filing of the record in the Appellate Court.1
2. Corrections and clarifications of the final judgment
Following the filing of a notice of appeal, the trial court retains jurisdiction to correct mistakes in the sentencing documents that do not affect the substance of the sentence. For example, the sentencing judge may amend the mittimus to eliminate a credit against the sentence that is not authorized by law.2 The mittimus may also be amended to reflect the imposition of sentences on all convictions when only one sentence was imposed on multiple convictions at the sentencing hearing.3
Of course, the final judgment may grant relief to the defendant. Therefore, the trial judge may vacate a conviction and enter an order of release following the granting of a post-conviction petition, even though the State has filed a notice of appeal prior to the "ministerial" implementation of the post-conviction order.4
The legal concept of nunc pro tunc (Latin meaning "now for then") also permits correction of the record, including amendment of the judgment order, even after the filing of the notice of appeal. The court possesses inherent power to correct clerical errors or matters of form at any time. This rule of procedure does not permit changes to the substance of previous orders, but only corrections accurately reflecting action taken by the trial court on a previous occasion. The trial court may amend the record to correct the date of entry of the judgment, even if the correction affects the timeliness of post-judgment motions and notices of appeal.5 But, this type of order may not be used to remedy a jurisdictional defect.6
3. Actions concerning the record on appeal
Supreme Court Rule 612(c) adopts the civil rule7 regarding the preparation of bystander's reports. A bystander's report is a document that compensates for the lack of a verbatim recording of trial court proceedings. The appellant bears the initial responsibility to prepare this report in order to present a complete record for appellate review. The appealing party must serve the proposed report of proceedings within 28 days of filing the notice of appeal. Naturally, the parties may disagree on the contents of the proposed report. In that event, amendments are proposed or an alternative report is suggested by the appellee, then an additional 21 days may pass until the documents are presented to the trial court. The appellant is required to present the report(s) to the trial court for settlement and approval. In order to prepare an accurate report of proceedings, the judge may hold hearings before certifying the record. Thus, the entire process of preparing this substitute for a contemporaneous recording can extend for a period of at least seven weeks past the filing of the notice of appeal.
In addition, Supreme Court Rule 612(g) has adopted the provisions of civil appellate Rule 329 permitting the amendment of the record. The trial court may supply omissions or correct inaccuracies or improper authentication of documents either before or after the record is filed in the reviewing court. The parties must submit any controversy regarding the accuracy of the record to the trial judge, which could occur many weeks or even months following the filing of the notice. Moreover, a motion to supplement the record is considered proper at any time.8, 9 The process of confirming the accuracy and completeness of the record is termed "collateral" or "incidental" to the judgment because it concerns matters lying outside the issues presented on appeal.
4. Posting bond
Supreme Court Rule 609 permits the trial court to grant a stay of a jail sentence pending appeal. The rule does not require the presentation of the motion prior to the filing of the notice of appeal. The judge may also set bond or dispense with bond when granting the stay. Stays are also available even in the absence of a sentence of imprisonment. The Appellate Court may review these types of orders.
Although we are accustomed to include assessments of costs in judgment orders, motions for costs are considered supplemental or procedural matters that can be addressed after the filing of the notice of appeal.10
6. Charges not appealed
A notice of appeal only divests the trial court of jurisdiction over those matters that are designated in the notice. In those unusual circumstances where the State is permitted to appeal the dismissal of less than all counts of a charging document, the trial judge retains jurisdiction to proceed with the remaining charges. In People v. Mitsakopoulos, 171 Ill.App.3d 198, 201-202 (1st Dist., 1988), the State decided to proceed with trial of forgery charges while it appealed the dismissal of theft counts.
7. Probation conditions
The trial court has continuing jurisdiction to modify the conditions of probation, even though this may occur more than 30 days after the imposition of sentence. A defense request to modify the sentence does not implicitly dismiss the notice of appeal.11
8. Testing exhibits
In an appropriate case, the trial court retains discretion to order the destructive testing of exhibits during the pendency of an appeal. A discretionary order of this type is permissible because it does not modify the judgment or interfere with review of the judgment.12
The Appellate Court has upheld the statutory scheme that requires periodic re-examination of a defendant's fitness, even though the review of his condition may occur on multiple occasions prior to the resolution of his appeal. However, while a fitness issue is being reviewed in the Appellate Court, the trial court may not place the accused on trial because the guilty issue depends on a prior resolution of the fitness question.13 Thus, jurisdiction over different aspects of this question may be shared between the circuit court and the reviewing court.
10. Convictions in absentia and other collateral attacks on the judgment
A person who has been convicted in absentia is permitted, but not required, to present a motion to the trial court concerning the willfulness of his absence before appealing his conviction. The motion is considered a collateral attack on the judgment analogous to a post-conviction petition or a petition filed under section 2-1401 of the Code of Civil Procedure.14 As in the case of fitness issues, jurisdiction over different aspects of the case may be shared between two courts, with the trial judge examining the question of the defendant's willful absence from the trial and the appellate justices reviewing the conviction and sentence as in the case of other direct appeals.15
A post-conviction petition (one type of collateral challenge to the judgment) may be pending in the circuit court at the same time that the defendant pursues a direct appeal of his conviction.16 Likewise, a section 2-1401 petition may be pending simultaneously with a direct appeal.17
Contempt proceedings are initiated within the context of a pending criminal or civil case. Once the trial court imposes a sanction on a contemnor, the contempt order is final and appealable, even though it appears interlocutory when viewed in the context of the entire litigation. Contempt appeals are considered collateral to and independent of the case in which the contempt arises. The appeal of the contempt sanction normally does not affect the circuit court's jurisdiction to proceed with the underlying case.18
12. Successive prosecutions
The prosecution may pursue new proceedings in the trial court despite the pendency of appeals involving the same defendant and the same crime. For example, in People v. Dace, 184 Ill.App.3d 1082, 1085-1086 (3rd Dist., 1989), the trial court retained jurisdiction to issue a search warrant while the defendant's case was pending on appeal. Even though the appeal involved the validity of a prior search warrant, the issuance of the second warrant was considered independent of and collateral to the issues in the case on appeal. Further, the issuance of the second warrant did not affect the appeal for two reasons: (1) The second warrant was based on an independent affidavit and testimony; and (2) The trial court did not make any determination regarding the propriety of issuing the first warrant, which was exclusively within the jurisdiction of the Appellate Court.
In a similar vein, People v. Palmer, 188 Ill.App.3d 378, 381 (2nd Dist., 1989), upheld proceedings in the trial court on a second indictment of the accused for the same crime that was the subject of a pending appeal.
I have tried to present a comprehensive listing of actions that the trial judge may take while a case is pending on appeal, but other matters could be collateral to and independent of the case or involve only ministerial acts that are not precluded by the existence of appellate jurisdiction.
Part Three provides more detail concerning the actions that the trial court can take following the filing of an appeal in a civil case.
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: firstname.lastname@example.org. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
1. See Part One of this topic (Bar Briefs, December 2004 (Fallacy #1))
2. Baker v. Department of Corrections, 106 Ill.2d 100, 106 (1985)
3. People v. Clark, 43 Ill.App.3d 117, 118-119 (2nd Dist., 1976)
4. People v. Hernandez, 296 Ill.App.3d 349, 350 (2nd Dist., 1998). Note that the act of releasing the defendant amounts to execution of the post-conviction judgment granting relief to the defendant. In principle, this authority does not differ from the ability of trial courts to execute on civil judgments by entertaining supplementary proceedings or enforcing settlement agreements. See Part Three for the availability of these remedies in civil cases after the filing of the notice of appeal.
5. Anderson v. Alberto-Culver USA, Inc., 337 Ill.App.3d 643, 660-662 (1st Dist., 2003); Phillips v. Gannotti, 327 Ill.App.3d 512, 516-518 (1st Dist., 2002). An order entered nunc pro tunc may itself be appealable due to the voidness of the order. Marriage of Breslow, 306 Ill.App.3d 41, 50-52 (1st Dist., 1999)
6. Shanklin v. Hutzler, 294 Ill.App.3d 659, 664-665 (1st Dist., 1997)
7. See Supreme Court Rule 323(c)
8. Mitchell v. Atwood Enterprises, Inc., 253 Ill.App.3d 475, 478 (2nd Dist., 1993)
9. In one of my criminal cases on appeal, the Second District permitted the State to amend the record to correct a transcript even after the Court rendered a decision, which altered the outcome of the case.
10. Mitchell v. Atwood Enterprises, Inc., 253 Ill.App.3d 475, 478 (2nd Dist., 1993); People v. Johnson, 175 Ill.App.3d 908, 918-919 (4th Dist., 1988)
11. People v. Tipton, 88 Ill.2d 256, 261-265 (1981); People v. Komes, 319 Ill.App.3d 830, 832 (2nd Dist., 2001); People v. Rymut, 216 Ill.App.3d 920, 923 (2nd Dist., 1991)
12. People v. Slover, 339 N.E.2d 1086, 1090-1091 (4th Dist., 2003)
13. People v. Elsholtz, 136 Ill.App.3d 209, 210-211 (2nd Dist., 1985)
14. This statute governing collateral attacks on judgments in civil cases also applies to criminal cases. People v. Harvey, 196 Ill.2d 444, 446-447 (2001)
15. People v. Partee, 125 Ill.2d 24, 29-38 (1988)
16. People v. Edsall, 94 Ill.App.3d 469, 473 (5th Dist., 1981)
17. People v. Alfano, 95 Ill.App.3d 1026, 1029-1030 (2nd Dist., 1981
18. People ex rel. Scott v. Silverstein, 87 Ill.2d 167, 171-174 (1981). But compare People v. Verdone, 136 Ill.App.3d 75, 76-77 (2nd Dist., 1985), for an unusual situation where the prosecution of the crime was dependent upon the resolution of the contempt issue.