People v. Minniti

JUSTICE KAPALA, dissenting:

Because I do not believe that this court has appellate jurisdiction, I respectfully dissent from the majority’s opinion holding otherwise. In noncapital criminal cases, an appeal is perfected by the timely filing of a notice of appeal, and it is this step that vests the appellate court with jurisdiction. 188 Ill. 2d R. 606(a). The appellate court has no discretion to extend its jurisdiction. People v. Scruggs, 161 Ill. App. 3d 468, 470 (1987). “The appellate court’s power ‘attaches only upon compliance with the rules governing appeals.’ ” People v. Lyles, 217 Ill. 2d 210, 216 (2005), quoting People v. Flowers, 208 Ill. 2d 291, 308 (2003).

Supreme Court Rule 606(b) provides in pertinent part:

“Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entiy of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” 188 Ill. 2d R. 606(b).

Thus, in a criminal case where a final judgment is entered after a defendant is found guilty and sentenced, there are two alternative methods to invoke this court’s appellate jurisdiction: (1) the filing of a timely notice of appeal after entry of the final judgment; or (2) the filing of a timely notice of appeal after the trial court enters its order disposing of a timely postjudgment motion. In this case, defendant did not invoke our appellate jurisdiction in either manner.

The trial court entered a final judgment when defendant was sentenced on November 30, 2004. See People v. Caballero, 102 Ill. 2d 23, 51 (1984) (the final judgment in a criminal case is the sentence). No notice of appeal was filed within 30 days of that final judgment. Accordingly, defendant did not invoke our appellate jurisdiction under the first Rule 606(b) method. With regard to the second Rule 606(b) method of invoking our appellate jurisdiction, on January 7, 2005, the trial court granted defendant leave to file his untimely motion to reconsider sentence and proceeded to deny that motion. On the same date, defendant filed a notice of appeal. However, the motion to reconsider sentence was not timely and, therefore, defendant did not file a notice of appeal within 30 days of an order disposing of a timely motion directed against the judgment. The trial court’s January 7, 2005, order granting defendant leave to file his motion to reconsider sentence did not render that motion timely. The trial court has the inherent authority, upon proper application and showing of good cause, to grant an extension of time for filing a motion to reconsider sentence. People v. Church, 334 Ill. App. 3d 607, 613 (2002). However, the trial court must extend the time for filing postjudgment motions before the time to file such motions runs. Lowenthal v. McDonald, 367 Ill. App. 3d 919, 922 (2006) (“If the initial 30-day period or any period of extension expires without the entry of an order setting a new deadline, the trial court loses jurisdiction over the case”); In re Estate of Kunsch, 342 Ill. App. 3d 552, 554-55 (2003). The trial court’s jurisdiction to alter a sentence ends after 30 days. Flowers, 208 Ill. 2d at 303 . Therefore, defendant did not invoke our appellate jurisdiction under the second Rule 606(b) method.

The majority follows authorities that with little or no analysis presume that if the trial court was revested with jurisdiction to hear a postjudgment motion, then a notice of appeal within 30 days of an order disposing of such a motion vests this court with appellate jurisdiction. Although adherence to these cases is understandable, in my view the presumption is unsound.

The revestment doctrine is a practical device that allows the trial court to vacate its final judgment after it loses jurisdiction over a cause, in order to remedy a judgment that the parties agree is unjust or improper without going through the appellate process. Under such circumstances, the revested trial court grants the motion attacking its judgment, the judgment is vacated, and a new final judgment is ultimately entered either by agreement or through the adversary process. This new judgment would be appealable, and an appeal from that new judgment could be taken within 30 days pursuant to Rule 606(b). In my view, the doctrine of revestment offers a chance at another final appealable order; it does not allow an untimely postjudgment motion to extend the time to appeal the original final judgment.

In this case, I do not believe that the trial court was revested with jurisdiction, because although the State did not object to the trial court hearing the untimely postjudgment motion, the proceedings were not, as the revestment doctrine requires, inconsistent with the merits of the prior judgment, that is, the sentence entered on November 30, 2004. Rather, the issue at the proceedings on defendant’s untimely postjudgment motion to reconsider sentence was whether the trial court should vacate the sentence and conduct a new sentencing hearing, which would result in a new judgment. The State argued that the sentence was appropriate and should remain intact. These proceedings were not inconsistent with the merits of the prior judgment. See Sears, 85 Ill. 2d at 260 (“The hearing on Gerald’s motion did not concern the merits of the judgment; the participants did not ignore the judgment and start to retry the case, thereby implying by their conduct their consent to having the judgment set aside. On the contrary, the hearing was about whether the judgment should be set aside; and Conde insisted that it should not. Nothing in the proceeding was inconsistent with the judgment”).

Nevertheless, even assuming that revestment occurred in this case, we still lack appellate jurisdiction. Despite the presumptions made in previous decisions of the appellate court, I do not believe that the question of appellate court jurisdiction is answered solely by finding that the trial court was revested with jurisdiction. Supreme Court Rule 606(b) allows an appeal of a final judgment only within 30 days after the entry of the final judgment or within 30 days after an order disposing of any timely filed postjudgment motions. However, simply because the trial court has jurisdiction to decide a postjudgment motion does not mean the motion tolls the time to appeal. Cases have held that although the trial court may have jurisdiction to rule on a successive postjudgment motion, the motion does not extend the time to appeal. See Sears, 85 Ill. 2d at 259; People v. Serio, 357 Ill. App. 3d 806, 816-17 (2005). To the extent that any previous appellate court cases presume that appellate jurisdiction automatically flows from the denial of an untimely postjudgment motion by a trial court revested with jurisdiction, I disagree.

Illustrative of the faulty presumption is MacArthur, where this court states that there is an exception to the timeliness requirement of Rule 606(b) but provides no authority for the concept and does not engage in further analysis of the issue. Instead, like many other appellate court cases, MacArthur incorrectly assumes that appellate jurisdiction derives from trial court jurisdiction. I do not believe that the appellate court can create a common-law exception to the timeliness requirement of Rule 606(b), as we clearly do not have the power to excuse noncompliance with our supreme court’s rules (Lyles, 217 Ill. 2d at 216 (appellate court does not have the authority to excuse compliance with filing requirements of the supreme court rules governing appeals); Flowers, 208 Ill. 2d at 308-09 ).

In this case, the trial court denied the motion to reconsider the sentence, leaving the original November 30, 2004, final judgment intact. Pursuant to our supreme court’s holding in Sears, the denied of a postjudgment motion is not itself a final judgment or an appealable order. Sears, 85 Ill. 2d at 258. Therefore, even if the trial court in this case was revested with jurisdiction to rule on defendant’s motion to reconsider sentence, the order denying the motion was not an appeal-able judgment. Consequently, we do not need to decide if revestment occurred in this case because, even if revestment occurred, defendant’s postjudgment motion did not toll the time to appeal. Thus, the notice of appeal defendant filed on January 7, 2005, from the trial court’s order of the same date did not confer appellate jurisdiction on this court. For these reasons, I respectfully dissent and would dismiss defendant’s appeal.