# People v. Lyles > Appellate Court of Illinois · March 3, 2004 · 347 Ill. App. 3d 100 URL: https://www.frixlaw.com/law-library/cases/9819732 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENICE LYLES, JR., Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** March 3, 2004 - **Citations:** 347 Ill. App. 3d 100; 282 Ill. Dec. 875; 807 N.E.2d 499; 2004 Ill. App. LEXIS 198 - **Precedential status:** Published - **Opinion:** Dissent by Hall - **Judges:** Hoffman, Hall, Karnezis - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9819732 ## Opinion text JUSTICE HALL, dissenting: I disagree with the majority’s conclusion that this court must once more dismiss the defendant’s appeal. Initially, I am not convinced that this court lacked jurisdiction even though the defendant filed his motion to reinstate more than 21 days after the April 18, 2003, dismissal of his appeal. Supreme Court Rule 368 (155 Ill. 2d R. 368(a)) provides in pertinent part as follows: “The clerk of the reviewing court shall transmit to the circuit court the mandate of the reviewing court, with notice to the parties, not earlier than 21 days after the entry of the judgment unless the court orders otherwise.” 155 Ill. 2d R. 368(a). In Whitcanock v. Nelson, 81 Ill. App. 3d 186 , 400 N.E.2d 998 (1980), on June 13, 1977, the appellate court denied the plaintiffs motion to file a late notice of appeal from an order of the trial court and ordered the appeal dismissed. However, the mandate did not issue. On June 21, 1977, the plaintiff filed a notice of appeal from another order of the trial court. The appellate court determined that the late notice of appeal from the first order should have been allowed, vacated its dismissal and reinstated the first appeal. In rejecting the defendants’ argument that the appellate court lost jurisdiction when it denied the motion to file the late notice of appeal, even though the court did not allow the mandate to issue, the court stated as follows: “A reviewing court is divested of its jurisdiction over an appeal before it when its mandate issues to the lower court, or when petition for leave to appeal to a higher court is granted. [Citation.] *** Although we initially denied leave to file late notice of appeal in case No. 77 — 245, we did not allow the mandate to issue and accordingly retained appellate jurisdiction to vacate our earlier order and grant leave to file late notice of appeal, thereby re-instating case No. 77 — 245. We are cognizant of Supreme Court Rule 368 which provides for automatic filing of the mandate by the appellate court. [Citation.] We believe that statute should be read as permissive rather than mandatory.” Whitcanock, 81 Ill. App. 3d at 189 . This court’s mandate was due to be issued on May 23, 2003, but it never issued in this case. Therefore, on June 4, 2003, this court still had jurisdiction to grant the defendant’s motion to reinstate his appeal. In Woodson, relied on by the majority, the court made no reference to the issuance of the mandate pursuant to Rule 368 or indeed any other authority for its conclusion that the appellate court lost jurisdiction after 21 days. See Woodson, 154 Ill. 2d at 397. In any event, I question whether Woodson should control. As the supreme court recognized in Brown, mechanical applications of rules can lead to harsh results repugnant to commonly held notions of justice and fair play. Brown, 39 Ill. 2d at 310. These results can be even harsher in a criminal case than a civil one since in the latter suit the aggrieved client has, in theory, a malpractice action against his attorney for damages, while in the former no attorney can restore his client’s liberty. Brown, 39 Ill. 2d at 310-11. Assuming, arguendo, Woodson applies to this case and that this court lost jurisdiction, despite the failure of the mandate to issue, I believe that due process considerations support the reinstatement of the defendant’s appeal. The majority draws a distinction between due process on direct appeals and due process on collateral proceedings, such as postconviction petitions, because the defendant’s due process rights require effective assistance of counsel on a direct appeal, not a discretionary one. However, as the Court in Evitts pointed out, “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.” Evitts, 469 U.S. at 401, 83 L. Ed. 2d at 833, 105 S. Ct. at 839. In Illinois, once the notice of appeal is filed in a postconviction proceeding, the supreme court rules require that counsel be appointed for an indigent defendant. See 134 Ill. 2d R. 651(c). The majority points out that appointed counsel need provide only a “reasonable level of assistance” and defendants are not constitutionally guaranteed any specific level of assistance. Nonetheless, however low that level might be, an attorney who fails to preserve a defendant’s appeal rights, once they were established by the filing of the notice of appeal, has fallen below it and by no stretch of the imagination can be said to have provided a “reasonable level of assistance.” As noted by the majority in this case, a state court may choose to dismiss an appeal when an incompetent attorney has violated local rules, as long as such action does not intrude upon the client’s due process rights. Evitts, 469 U.S. at 399, 83 L. Ed. 2d at 832, 105 S. Ct. at 838. It is here that the majority and I part company. In this case, allowing the appeal to be dismissed amounted to no assistance of counsel. By affording no relief to the defendant in this case, the majority renders the appointment of counsel provision in Rule 651(c) a nullity. Such a result does not comport with the due process rights the defendant became entitled to once Illinois enacted a statutory scheme for postconviction relief and provided for the appointment of counsel in appeals from those proceedings. I would not dismiss the defendant’s appeal. Therefore, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9819732. Public record. Not legal advice.