This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in June, 2004
The meanderings of a felony case through the justice system can require many months of effort. The pre-trial phase of the prosecution may include hearings on a variety of topics ranging from joinder to judgment. Subsequently, counsel must prepare for voir dire, trial and sentencing. Quite naturally, trial practitioners in criminal court conclude that the imposition of sentence terminates their involvement in the case, as long as the notice of appeal is filed within 30 days. The exhaustion caused by the odyssey of a lengthy battle against the State, with the final outcome resulting in a conviction, inspires little desire to continue the fight after sentencing. However, one last effort is required in order to preserve claims that error occurred at sentencing.
In order to invoke appellate jurisdiction in criminal cases, the appellant must file a notice of appeal in the circuit court within 30 days of one of the following dates:
(a) The entry of the sentencing order; or
(b) The entry of the order disposing of the post-sentencing motion.
Appellate jurisdiction will not attach unless the notice of appeal is filed in a timely fashion. In other words, the Appellate Court will dismiss an appeal when the notice is untimely. However, the dismissal may not occur for many months after the case has been briefed and submitted for decision. The Appellate Court often reserves ruling on motions filed on appeal until it reviews the merits of the case. Therefore, the entry of the dismissal order will likely occur long after the expiration of the deadline for preserving the right of appeal. Consequently, the trial attorney must pay careful attention to the correct deadline for filing the notice.
As with virtually everything in law, exceptions exist to these "typical" rules. For example, different rules apply to appeals following the entry of a guilty plea and the attempted withdrawal of that plea. In addition, some sentencing hearings occur on the same date as the entry of guilty findings, especially in misdemeanor cases. In those situations, counsel might file a post-trial motion within 30 days, but might not file any post-sentencing motion. In that scenario, the notice of appeal must be filed within 30 days of the entry of the order deciding the post-trial motion.
However, in this article, I want to stick with this "typical" felony situation: The guilty verdict of the jury or the guilty finding of the judge is followed by the filing of a post-trial motion within 30 days, the subsequent denial of the post-trial motion, then the entry of the sentencing order after the denial of the post-trial motion.
III. FINAL JUDGMENT
The final judgment in a criminal case is the entry of the sentencing order, not the entry of the judgment of conviction. (fn. 1) Thus, the filing of a notice of appeal prior to the imposition of sentence is a premature act and will not confer jurisdiction on the Appellate Court. Appeals on behalf of the accused are not considered in piecemeal fashion, with separate appeals for trial issues and sentencing issues. (fn. 2) In our "typical" scenario, you must follow the sequence of filing, hearing and denial of the post-trial motion, then completion of the sentencing hearing, before the appellate process can commence.
Therefore, when you read the Supreme Court Rule (fn. 3) on this subject, keep in mind that the references to "final judgment" mean the sentencing aspect of the case, not simply the determination of guilt. By contrast, civil cases only involve a one-step post-judgment process because of the absence of any "sentencing" aspect of the litigation. Thus, the criminal counterparts of the civil post-judgment motion encompass post-trial and post-sentencing motions combined.
The statute governing post-sentencing motions (fn. 4) explicitly states that "a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court." In other words, for purposes of appeal, the statute extends the date of final judgment beyond the imposition of sentence. (fn. 5)
IV. PROCEDURAL REQUIREMENTS
The governing statute (fn. 6) also prescribes certain procedural steps necessary to preserve the right to appeal. For example, the post-sentencing motion must be accompanied by a notice setting the motion on the court's calendar on a specific date "within a reasonable time after the date of filing." Presumably, filing the notice of motion and scheduling a hearing satisfies the admonition to "exercise due diligence in seeking a determination on the motion."
The pitfall here is that the failure to file the notice of motion along with the motion itself results in an untimely filing. Therefore, the filing of the post-sentencing motion alone, without an accompanying notice, may cause the expiration of the 30-day limit for preserving the right to appeal.
If you fail to catch this oversight, can you save the right to appeal? I doubt that most prosecutors would raise this point at an eventual post-sentencing hearing. The lack of an objection and active participation in the post-sentencing hearing can revest the trial court with jurisdiction, even though more than 30 days has elapsed since the judgment became final. (fn. 7) Revestment of jurisdiction will start the 30-day clock running again once the court decides the post-sentencing motion. Even though more than 30 days elapsed after the imposition of sentence, the filing of the notice within 30 days of the decision on the post-sentencing motion resurrects the right to appeal.
Another option for saving the appeal is the extension provision of Supreme Court Rule 606(c). The rule provides an additional 30 days for filing a notice of appeal due to the existence of a reasonable excuse for failing to file a timely notice. Case law permits counsel to invoke this provision when a miscalculation occurs in counting the 30-day deadline. (fn. 8) In addition, a second default option exists where counsel files an affidavit within six months of the correct deadline alleging that the appeal has merit.
A thorough review of these rules at the outset of the process is the best policy because the omission to file the notice of motion may not come to light until months after the deadline to preserve the appeal. If all else fails, perhaps you can argue that the statute unconstitutionally infringes on the rule-making authority of the judicial branch in matters of court procedure. (fn. 9)
V. SECOND NOTICE OF APPEAL
Rule 606(b) now clarifies the situation where counsel has prematurely filed a notice of appeal. This scenario occurs where a notice of appeal is filed before or after the filing of a timely post-judgment motion or a timely post-sentencing motion and before the disposition of either motion. The premature filing of the notice does not invoke appellate jurisdiction. Instead, a new (second) notice of appeal must be filed before 30 days elapses after disposition of all timely filed post-judgment motions. Please note that the post-judgment or post-sentencing motions must be timely filed in order to invoke the provisions of the rule. Of course, if the motions were not filed in timely fashion, i.e., filing occurred more than 30 days after the judgment of conviction and/or the imposition of sentence, then appellate jurisdiction has been lost. (fn. 10)
As long as the post-judgment or post-sentencing motion was timely filed, the premature filing of the notice of appeal has no effect on the jurisdiction of the circuit court. Instead, the trial court continues to hear post-trial and/or post-sentencing issues and the second notice of appeal can (and must) be filed at the conclusion of those proceedings to save the right to appeal.
Part Two of this article will address the substantive allegations that should be included in a post-sentencing motion.
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.
fn. 1 People v. Caballero, 102 Ill.2d 23, 51 (1984)
fn. 2 Yes, exceptions exist for appeals by the State of certain suppression orders and for denials of motions to dismiss on double jeopardy grounds.
fn. 3 Supreme Court Rule 606(b)
fn. 4 730 ILCS 5/5-8-1(c) (West 2002)
fn. 5 Of course, if your client does not want to raise any sentencing issues and you want to risk a claim of ineffective assistance later, then you should file the notice of appeal within 30 days of the conclusion of the sentencing hearing.
fn. 6 730 ILCS 5/5-8-1(c) (West 2002)
fn. 7 People v. Kaeding, 98 Ill.2d 237, 240 (1983)
fn. 8 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)
fn. 9 In general, see People v. Taylor, 115 Ill.App.3d 621, 629 (1st Dist., 1983)
fn. 10 Subject to the exceptions noted in section IV.