CIVIL AND CRIMINAL APPEALS - Timetables for Perfecting Appeal

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2000

In recent years, a large volume of litigation has addressed the issue of the timely filing of both civil and criminal notices of appeal. Various amendments to the Supreme Court Rules have now clarified the timetables for perfecting appeals, particularly the problems which arise when post-judgment motions are filed either before or after the filing of the notice of appeal. These rules now set uniform requirements for perfecting appeals in both civil and criminal matters.

For most cases, these are the basic rules for perfecting an appeal:

1. A final judgment must be entered by the trial court;

2. Post-judgment motions must be filed within 30 days of the entry of the final judgment;

3. The circuit court must enter an order disposing of all timely-filed post-judgment motions;

4. A notice of appeal must be filed with the circuit clerk within 30 days of the entry of the order disposing of all timely-filed post-judgment motions.

The timeliness requirements for filing civil appeals from final judgments of the circuit court are found in Supreme Court Rule 303(a). Normally, a party must observe a 30-day deadline for filing a notice of appeal from a final judgment. One common problem which arises in civil cases is the appropriate treatment of post-judgment motions which have been filed subsequent to the filing of a notice of appeal. The rule now provides that timely-filed post-judgment motions must be disposed of before the notice of appeal will act to divest the trial court of jurisdiction. This jurisdictional rule applies to notices of appeal which have been filed before the filing of post-judgment motions, as well as notices stamped after post-judgment motions are on file. Thus, even though a notice of appeal is on file, it does not have any effect on the trial court's jurisdiction until the entry of a ruling on all pending, timely-filed post-judgment motions.

This provision of the rule now avoids previous problems concerning whether the filing of the notice transferred jurisdiction of the case immediately to a reviewing court. Any party who has filed the 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.

The most important point to recall in this situation is the requirement to file a new notice of appeal once all timely-filed post-judgment motions have been ruled on. In other words, since the old notice has no legal effect, a party wishing to appeal must file a new notice within a new 30-day deadline. Another pitfall to avoid is the incorrect assumption that a request for reconsideration of a ruling on a post-judgment motion will delay the commencement of the 30-day deadline. The rule now states explicitly that the filing of such a motion for reconsideration will not toll the running of the 30-day requirement.

In criminal cases, 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. Appeals from criminal convictions must be filed within 30 days of the entry of the final judgment. While the final judgment is normally considered to be the imposition of the sentence, convicted persons must now file and obtain a ruling on a post-sentencing motion in order to preserve sentencing issues for review on appeal. Thus, both post-trial and post-sentencing motions are the criminal counterpart of the civil post-judgment motion. A post-sentencing motion must be filed within 30 days after the imposition of sentence, along with a notice of motion scheduling a hearing "within a reasonable time."

Just as in civil cases, a notice of appeal in a criminal case has no effect on the jurisdiction of the circuit court if it is filed before the entry of the order disposing of all timely-filed post-trial or post-sentencing motions. The trial court is directed to strike the notice of appeal, regardless of whether it was stamped before or after the date of filing of a post-judgment motion.

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.

I have not discussed other complicating factors in the filing requirements for notices of appeal, but have tried to focus on the "run-of-the-mill" cases which most practitioners confront. In subsequent articles, I will address the following issues that awaken trial and appellate lawyers during the night with fears that they have failed to properly perfect an appeal:

1. When is a judgment really final for purposes of the 30-day deadline as compared to matters that are ancillary to the judgment and should not be deemed the starting point of the 30-day calculation?

2. When is a document that is termed a post-judgment motion not really a post-judgment motion, thereby failing to toll the 30-day calculation?

3. Are post-judgment motions required in all cases before perfecting an appeal?

4. What is a cross-appeal and when should a cross-appeal be filed to avoid waiving an issue on appeal?

5. What happens if an appeal is filed in the wrong appellate district?

6. Why should experienced appellate attorneys be hired to prepare even "simple" appeals, when any lawyer can figure out the standard of review of each issue on appeal, docketing statements, requests for preparation of the common law record, supplementing the record on appeal, petitioning for rehearing from an adverse opinion, following the administrative order of the 2nd District concerning which case law reporters are official and when to supply the Court with copies of case authority .........???

Larry Wechter