DOUBLE OPPORTUNITY TO APPEAL DOUBLE JEOPARDY CLAIMS

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2005

I. INTRODUCTION

Most of the articles I write for Bar Briefs focus on appeals from final judgments because they are the most common types of appeals by far. In criminal cases, the imposition of the sentence is considered the final judgment, so that appeals from convictions are not permitted until the sentence has been imposed.

However, in certain situations, the Supreme Court Rules permit the filing of an appeal prior to the entry of a final judgment, otherwise known as an interlocutory appeal. We all know from our Latin studies that the term "interlocutory" means "to speak between", that is, "to interrupt." Thus, an interlocutory appeal occurs during the course of the trial court proceedings prior to their conclusion.

Supreme Court Rule 604(f) permits an interlocutory appeal to the Appellate Court by the accused when the trial court denies a defense motion to dismiss the charge based on a claim of double (or former) jeopardy. But when can the defendant assert this claim? How is the appeal perfected? What if the defendant decided to try the case rather than file the appeal in the midst of pre-trial proceedings? This article will answer these questions and explain the two opportunities available for appeal of an adverse double jeopardy ruling.

II. FIRST OPPORTUNITY TO APPEAL

As I just noted, the defense may appeal a trial court ruling denying a motion to dismiss based on double jeopardy even though the case has not proceeded to final judgment. The obvious reason for permitting an appeal of this issue, despite its interruption of the proceedings, is to prevent a second trial of an accused who has already been subjected to the risks of a criminal conviction. If the rules did not provide for an immediate appeal of the issue, the vindication of this right would have to await a conviction, sentencing and the normal delays of the appellate process.

Most defendants are sure to want an immediate appeal of this question if counsel advises that the issue has merit. But what if other motions are pending that might confer some relief for the client? Can he or she wait and assess the outcome of other motions or the progress of the plea negotiations before appealing?

The only case to address this issue is People v. King, 349 Ill.App.3d 877, 807 N.E.2d 1266 (2nd Dist., 2004). In King, the defendant lost his bid to dismiss the criminal charge on the grounds of former jeopardy, but waited for 48 days to file his notice of interlocutory appeal. The State sought dismissal of the appeal because it not timely filed. The Second District rejected the defense argument that Rule 604(f) permitting the filing of the appeal at any point in the trial court proceedings because it does not contain any filing deadline. Instead, the Appellate Court imported the 30-day filing deadline from the general rule governing criminal appeals, namely Supreme Court Rule 606(b). Due to King's failure to file the appeal within 30 days of the court's denial of his motion to dismiss, the reviewing court dismissed the appeal. Thus, time is of the essence if your client wants to interrupt the trial court proceedings and seek appellate relief for a double jeopardy claim.

One question left unanswered by King is whether the filing of a motion to reconsider in the trial court will delay the 30-day filing deadline. The safe approach here would be to obtain a ruling on a motion to reconsider within 30 days of the initial ruling or to forego the motion if this is not possible. If the notice were filed more than 30 days after the initial denial of the double jeopardy motion, but less than 30 days after the denial of a motion to reconsider, the State would be sure to argue that the appeal was not timely based on Rule 606(b). This rule permits the filing of post-judgment motions, which have the effect of delaying the deadline for initiating an appeal. However, since the double jeopardy claim does not amount to a final judgment, being interlocutory in character, the rule might not countenance a delay in filing the notice until resolution of a motion to reconsider. In addition, King imposed the 30-day deadline in order to expedite resolution of double jeopardy claims, which would be impeded by the delay occasioned by motions to reconsider in the trial court.

For the same policy reasons, the Appellate Court would probably frown on a motion seeking leave to file a late notice of appeal in these situations. Supreme Court Rule 606(c) provides for the filing of a motion in the reviewing court seeking leave to file a late notice of appeal under certain circumstances. Once again, the question arises whether this provision applies to appeals from interlocutory orders rather than from final judgments. The situations that have received the best reception in the Appellate Court are late filings occurring due to miscalculation of the 30-day deadline, that is, a counting error on the calendar. The cases of Bank of Herrin v. Peoples Bank of Marion, 105 Ill.2d 305 (1985) and LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863 (1st Dist., 2000) permitted the late filing of notices of appeal for this reason. But don't count on the Court allowing a late notice much beyond the normal 30-day deadline.

In extreme circumstances, there is one more long-shot possibility after missing the filing deadline. The Supreme Court recently ruled that it can excuse filing deadlines for petitions for leave to appeal in the case of Wauconda Fire Protection Dist. v. Stonewall Orchards, LLP, 214 Ill.2d 417 (2005). Even though the Appellate Court cannot excuse a jurisdictional filing deadline, the possibility exists that the Supreme Court would do so in an extraordinary situation in response to a motion for a supervisory order under Supreme Court Rule 383.

III. SECOND OPPORTUNITY TO APPEAL

As noted above, one would normally expect to file this type of appeal within 30 days of the denial of the motion to dismiss in the trial court. But what if the client procrastinates beyond the deadline? What if he or she wanted to roll the dice on an acquittal rather than appeal immediately? Can the client still appeal the double jeopardy ruling following a conviction and sentence?

Only one appellate decision has addressed this issue in a criminal case. In People v. Franklin, 159 Ill.app.3d 56, 512 N.E.2d 40 (1st Dist., 1987), the First District ruled that Rule 604(f) does not require the filing of an interlocutory appeal from the ruling of the trial judge. Instead, the defendant can assert this issue on appeal from the final judgment in the case.

IV. PERFECTING THE APPEAL

The appeal is perfected in the same fashion as other criminal appeals by filing a notice of appeal in the circuit court within the 30-day deadline. (See Rule 606(a)) Rule 606(d) provides a format for the notice. The title of the document should be modified to state "Notice of Interlocutory Appeal", lines 5 and 6 pertaining to the conviction and sentence would be left blank, and line 7 would specify that the order appealed from concerned the denial of a motion to dismiss based on former jeopardy.

V. MORE OPPORTUNITIES TO APPEAL?

What if you lost your interlocutory appeal and wanted to try again after the entry of final judgment? Normally, the rules of res judicata would prevent re-litigation of the same double jeopardy issue following conviction. However, it is conceivable that another opportunity would present itself under changed circumstances. For example, after remand of the interlocutory appeal, the State might have filed new charges against the client or some other intervening event may have occurred during pre-trial or trial proceedings changing the complexion of the double jeopardy issue. Following conviction and sentencing the defendant has an absolute right to appeal, so there would be no need to invoke any rule pertaining to interlocutory appeals.

Also, remember that either party may seek leave to appeal an adverse ruling of the Appellate Court to the Supreme Court under Rules 315 and 604(a)(2). The Supreme Court accepts less than 5% of all cases in which the losing party seeks further review in Springfield. But, if you are among the lucky 4%, then the rules permit yet another bite at the apple.

VI. BAIL PENDING APPEAL & STAY OF TRIAL COURT PROCEEDINGS

If your client is incarcerated, you can petition the trial court or the Appellate Court to set bail pending appeal. The Appellate Court rarely wants to second-guess the trial judge on these matters, so for all practical purposes the circuit court bail order will remain in place pending appeal. Rule 609 governs the procedure for granting, denying and modifying bail orders pending appeal.

But what about the progress of the case in the trial court while an interlocutory double jeopardy appeal is pending? My sense is that most trial judges would give serious consideration to holding the case in abeyance pending the outcome of the appeal, especially if the claim is not frivolous. However, the rules do not speak to this issue, so the outcome of any stay motion is probably subject to the discretion of the trial judge. The grant or denial of a motion for a stay will certainly affect the parties' negotiating posture, since the defense will seek an advantage from the delay inherent in the appeal and the State will want to press forward to preserve the availability of witnesses.

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.