This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2006
Previous articles in this series discussed the required preliminary steps before filing an appeal, especially the requirements for post-judgment motions. This part answers the most common questions relating to the filing of the notice of appeal in both civil and criminal cases. (fn. 1) The filing of the notice is the sole jurisdictional step in perfecting an appeal. (fn. 2)
I. HOW DO POST-JUDGMENT MOTIONS AFFECT APPEALABILITY?
A. CIVIL CASES
First, you need to make sure that the circuit court has entered an order disposing of all timely-filed post-judgment motions. This requirement applies regardless of whether a notice of appeal has been filed prematurely. In other words, a notice does not confer appellate jurisdiction unless all timely-filed post-judgment motions have been resolved, even if the notice was filed prior to the filing of a post-judgment motion. Moreover, this rule applies to both jury and non-jury cases, even though non-jury cases do not require the filing of a post-judgment motion. Any party who filed a notice prior to the entry of the ruling on timely-filed post-judgment motions is required to withdraw the notice by filing a motion to dismiss the appeal in the trial court. Most importantly, a new notice must be filed after resolution of all post-judgment motions. (fn. 3)
One note of caution applies to resolution of post-judgment motions. If you consent to denial of the motion, then you will lose the benefit of filing it in the first place. Any consent to denial of the motion, does not extend the time for filing the notice of appeal, so that the 30-day deadline begins to run from the date of the entry of the final, appealable judgment. (fn. 4)
B. CRIMINAL CASES
In criminal cases, you must await the sentencing decision and a ruling on any timely-filed post-sentencing motion. Supreme Court Rule 606(b) and section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c)) contain essentially the same provisions as the civil rule. Thus, a notice of appeal has no effect if a timely post-trial or post-sentencing motion remains unresolved, even if the notice was filed before the filing of those motions. The trial court must strike any notice filed under these circumstances. The same caution advised in civil cases also applies in criminal appeals: A new notice must be filed within 30 days of the disposition of pending post-judgment motions. (fn. 5)
II. WHAT IS THE DEADLINE FOR FILING A NOTICE OF APPEAL?
A. CIVIL CASES
A notice of appeal must be filed with the circuit clerk within 30 days of the entry of final judgment or entry of the order disposing of all timely-filed post-judgment motions. (fn. 6) I recommend that you not tempt fate by waiting until the last day or the last minute to file the notice. This advice results from the unfortunate outcome of reported cases where the appellant procrastinated in filing documents until literally the last minute for the clerk's office to remain open. (fn. 7)
You must also consider the substantive rules in the particular area of law governing the case. For example, in divorce cases, the Supreme Court has determined that a single cause of action encompasses issues of custody, support, visitation, pensions, and so forth. (fn. 8) Thus, substantive divorce law governs the determination of the date from which the 30-day deadline begins.
In addition to the 30-day rule, you must determine the appealability of an order. This is a simple task where an order is entered after trial resolving all issues raised by all parties. However, with respect to the grant or denial of certain motions, the rules are more complicated. Specific rules govern the appealability of orders respecting motions to dismiss, motions for summary judgment, voluntary and involuntary dismissals, and sanctions for contempt. For example, the denial of a motion for summary judgment is ordinarily not appealable, while the grant of this type of motion is appealable. (fn. 9) Moreover, rulings on some motions are appealable as to one party, but not the opponent in the litigation. The vast nature of this subject and the restrictions on the size of this article only permit me to alert you to the intricacies of this question, rather than presenting a full analysis of every possible appealability scenario. You need to consult the case law on this subject before taking a leap into an appeal.
In a similar vein, Supreme Court Rule 304(a) permits interlocutory appeals based on a finding of "no just reason for delaying either enforcement or appeal" of an order. A court's finding under this rule as to a discrete portion of a lawsuit may be entered contemporaneous with the order or afterwards on motion of a party or the court itself. The entry of the finding is considered the final judgment, which can be attacked by a motion for reconsideration and appealed under the same parameters applicable to final and appealable judgments. (fn. 10) But beware that the court's approval of these magic words cannot confer finality on non-final orders. (fn. 11)
Please note that special rules apply to appeals from orders granting new trials, rulings on injunctions, child custody issues and other orders governed by Rules 306, 307 and 308.
B. CRIMINAL CASES
The timing of filing the notice is relatively straightforward in a criminal case. The final judgment is the sentence, not the criminal conviction. Therefore, the filing of a notice following conviction, but before sentencing, is completely ineffective. Also, challenges to sentencing issues on appeal first require the filing and resolution of a post-sentencing motion in the trial court. On the other hand, if no sentencing issue will be raised on appeal, then the notice may be filed within 30 days of the sentencing decision. (fn. 12) All sentencing issues must be resolved to make the case appealable. One pitfall concerns the practice of ordering restitution without fixing its precise amount. The failure to fix a dollar amount of restitution prevents finality in the sentencing decision and results in dismissal of the appeal. (fn. 13)
In cases involving challenges to guilty pleas, Rule 604(d) provides that the defendant must first file a motion to withdraw the plea or a motion challenging the sentence within 30 days of sentencing. (fn. 14) The notice of appeal must be filed within 30 days from the entry of the order denying the motion.
Interlocutory appeals are available in certain limited circumstances. One example is a defense appeal from the denial of a motion to dismiss based on double jeopardy grounds. In that situation, the defendant must file the notice within 30 days of denial of the motion to dismiss in order to resolve the issue prior to the entry of a conviction. (fn. 15) More examples can be found in other sections of Supreme Court Rule 604, which governs interlocutory appeals by the prosecution and the defense in criminal cases.
III. IS THERE A LOOPHOLE FOR MISSING THE FILING DEADLINE?
A. CIVIL CASES
Supreme Court Rule 303(d) contains a provision that can excuse the late filing of a notice of appeal. The appellant must file a motion in the Appellate Court within 60 days of the deadline for filing the notice of appeal. In other words, allowance of the motion effectively extends the normal filing deadline by 30 days. However, the motion must contain a showing of reasonable excuse for failure to file the notice within the 30-day time limit. The term "reasonable excuse" is most frequently applied to situations where an attorney miscalculates the 30-day deadline, such as by an inadvertent docketing error. (fn. 16)
B. CRIMINAL CASES
In capital cases, the defendant is not required to file a notice in order to perfect the appeal. For all other criminal cases, Supreme Court Rule 606(c) contains not one, but two, loopholes where the filing deadline has been missed. The first provision resembles the civil loophole in its requirement to file a motion within an additional 30 days of the normal time limit supported by a showing of "reasonable excuse" for the failure to accomplish a timely filing. In the alternative, the deadline can be extended for six months if the appellant files a motion and affidavit indicating the appeal has merit and the failure to file on time was not due to his or her "culpable negligence." Just as in civil cases, these motions must be filed in the Appellate Court. In order to ensure the protection of constitutional rights, the rules are more liberal in allowing the filing of late notices of appeal than in civil cases.
See Part Seven in this series for more information on perfecting the appeal.
Larry Wechter is the primary of the Law Office of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: email@example.com. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
fn. 1 This article and Part Seven in this series only describe direct appeals to the Appellate Court. Different rules govern direct appeals from the circuit court to the Supreme Court, as well as appeals from judgments of the Appellate Court to the Supreme Court.
fn. 2 Supreme Court Rule 301 (civil cases); Supreme Court Rule 606(a) (criminal cases)
fn. 3 Supreme Court Rule 303(a)(1), (2)
fn. 4 Page v. Estate of Page, 66 Ill.App.3d 214 (5th Dist., 1978)
fn. 5 Supreme Court Rule 606(b). For more information, see my articles "Post-Sentencing Motions in Criminal Cases (Parts One and Two)" (Bar Briefs, June and November 2004)
fn. 6 Supreme Court Rule 303(a). For more information, see my article "Civil & Criminal Appeals: Timetables for Perfecting Appeal" (Bar Briefs, November 2000)
fn. 7 Roach v. Coastal Gas Station, 363 Ill.App.3d 674 (5th Dist., 2006); McReynolds v. Hartley, 251 Ill.App.3d 1038 (3rd Dist., 1993). Although these cases pertain to the filing of complaints, the result applies equally to filing notices of appeal.
fn. 8 Marriage of Leopando, 96 Ill.2d 114 (1983); also see Marriage of Blackston, 258 Ill.App.3d 401 (5th Dist., 1994)
fn. 9 Kahle v. John Deere Co., 104 Ill.2d 302 (1984)
fn. 10 Supreme Court Rule 304(a)
fn. 11 Jackson v. Alverez, 358 Ill.App.3d 555 (4th Dist., 2005)
fn. 12 Supreme Court Rule 606(b)
fn. 13 People v. Danenberger, 848 N.E.2d 637 (2nd Dist., 2006)
fn. 14 The appropriate type of motion depends upon whether the plea has been "negotiated" within the meaning of Supreme Court Rule 604(d).
fn. 15 Supreme Court Rule 604(f); People v. King, 349 Ill.App.3d 877 (2nd Dist., 2004) In the alternative, the issue may be raised subsequent to the conviction. (People v. Franklin, 159 Ill.app.3d 56 (1st Dist., 1987)) For further information, see "Double Opportunity to Appeal Double Jeopardy Claims" (Bar Briefs, November 2005)
fn. 16 Bank of Herrin v. Peoples Bank of Marion, 105 Ill.2d 305, 306 (1985); LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863, 865 (1st Dist., 2000)