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06/10/87 the People of the State of v. Harry Fike

June 10, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

HARRY FIKE, APPELLANT



SUPREME COURT OF ILLINOIS

509 N.E.2d 1011, 117 Ill. 2d 49, 109 Ill. Dec. 172 1987.IL.788

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County, the Hon. Alfred R. Penniman, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE CLARK delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

The defendant, Harry Fike, appealed an order of the circuit court of Winnebago County which revoked his probation and sentenced him to the county jail. After the case had been briefed to the appellate court, that court, in an unpublished Rule 23 order, dismissed the defendant's appeal as untimely (145 Ill. App. 3d 1166). We granted the defendant's petition for leave to appeal. (103 Ill. 2d R. 315(a).) The defendant's principal request is that his appeal be reinstated and that the case be remanded to the appellate court for a decision on its merits.

On January 31, 1984, the defendant was convicted of battery and disorderly conduct and was sentenced to one year of probation. The State filed a petition to revoke probation, which alleged that the defendant had committed the offenses of "disorderly conduct" and "obstructing." The defendant's motion to dismiss the petition on grounds that it was insufficiently specific was denied. After a hearing held on July 18, 1984, the court found the defendant guilty of violating the conditions of probation and sentenced him to serve five months in jail. The court did not advise the defendant after sentencing of his right to appeal and the time limits governing the filing of a notice of appeal. See 103 Ill. 2d R. 606(a) (contemplating that the defendant will "in open court" be "advised of his right to appeal").

Defendant's time to file a notice of appeal would have expired on August 17, 1984, 30 days after he was sentenced. In the record there are four documents. The first is captioned "Motion for New Trial," and is two pages in length. The first page of this document bears a file stamp upon which a notation signifying the date of August 21, 1984, has been added in handwriting. The second page of the document bears an identical file stamp upon which a notation signifying a different date has been added in handwriting. This date is August 17, 1984. Both file stamps bear the handwritten initials "R.A.C." in the space on the file stamp which identifies the deputy clerk receiving the document. The second document is captioned "Amended Motion for New Trial." It bears the file stamp date of August 21, 1984, but identifies a different receiving deputy clerk, "A.I.L." The third and fourth documents, captioned "Notice of Appeal," and "Motion for Appointment of Counsel on Appeal and for Free Transcript," also bear the date August 21, 1984, and the initials "A.I.L." The docket sheet for the case does not indicate any activity in the case on August 17. The docket notation for August 21 records the filing in open court of all of the motions listed above except the defendant's original motion for a new trial, which does not appear anywhere on the docket sheet. The discrepancy between the dates on the first and second pages of the original motion for a new trial was not noted in defendant's original brief, and was only brought to the court's attention by the State in its brief. Thereafter, the defendant addressed this point in his reply brief, and it was discussed by both sides during oral argument.

At a hearing on August 21, appointed counsel appeared with the defendant before the circuit court. At that time the court acted on all four of the defendant's motions. The court granted the defendant leave to file a motion for a new trial, and the motion was denied. However, the court granted the defendant leave to file a notice of appeal and, upon a finding of indigency, entered an order appointing the State Appellate Defender and providing for transcripts without cost. After granting leave to file a notice of appeal, the court granted a defense motion seeking the defendant's immediate release from jail upon being given credit for time spent on probation. The notice of appeal filed by the defendant recited that the judgment appealed from was entered on July 18, 1984. At the hearing the assistant State's Attorney did not argue that the notice of appeal was untimely.

The office of the State Appellate Defender filed a docketing statement on the defendant's behalf on September 18, 1984, and a clerk's certificate in lieu of record was filed on October 23, 1984. Defendant's appellate counsel subsequently discovered that the record was not complete, and he made a number of requests to extend the time for filing the brief, all of which were granted. Defendant's brief, arguing that the petition to revoke probation was deficient in that it provided insufficient notice of the conduct charged, was filed on July 30, 1985. The State filed a brief on September 26, 1985. In that brief the State argued that defendant's appeal should be dismissed because the notice of appeal was filed more than 30 days after judgment. On December 11, 1985, the appellate court issued an order under Supreme Court Rule 23 dismissing the appeal. On petition for leave to appeal, the State Appellate Defender withdrew from the case and a new attorney was appointed for the defendant.

The defendant initially raised three alternative arguments justifying his request that this court reverse the dismissal and reinstate his appeal. The defendant acknowledged that the timely filing of a notice of appeal is jurisdictional (see 103 Ill. 2d R. 606(a)), and that the time during which the appellate court had statutory authority to allow a late filing expired six months after the last day for filing a timely notice of appeal (see 103 Ill. 2d R. 606(c)). The defendant argued, however, that reinstatement was justified: (1) because, under this court's decisions in People v. Williams (1974), 59 Ill. 2d 243, and People v. Brown (1973), 54 Ill. 2d 25, the appellate court abused its discretion in dismissing the appeal, (2) because the negligence of defendant's trial and appellate counsel in failing to file either a timely notice of appeal or a late notice of appeal violated defendant's sixth amendment right to effective assistance of counsel, and/or (3) because the State revested the circuit court with jurisdiction by appearing at the August 21 hearing, thus making the August 21 notice of appeal timely. In his reply brief, defendant further argues that the notice of appeal was, in fact, timely, because his original motion for a new trial was actually filed on August 17, 30 days after the circuit court's initial judgment, and not on August 21. (See 103 Ill. 2d R. 606(b).) Since acceptance of this argument would render defendant's remaining arguments moot, we consider it first.

Defendant suggests two possible scenarios which would explain why the original motion for a new trial bears two conflicting date stamps. In the first, an agent of the Public Defender's office came on August 17 to the clerk's office to file the original motion for a new trial. The deputy clerk stamped the first and second pages of the document, filling in August 17 as the date on the second page. The deputy clerk then became distracted by some other task, or perhaps by a request from the Public Defender's agent that the file be sent to the Judge for a hearing on August 21. After the distracting event, the deputy clerk returned to complete the filing of the motion. Perhaps confused because the motion was to be heard on August 21, he inadvertently filled in that date on the first page of the document.

Knowing that the motion would not be heard until August 21, the deputy clerk neglected to make the proper docket entry. In support of this supposition, the defendant points out that several other out-of-court filings were entered out of order, after notations of subsequent in-court proceedings. For example, after the trial of defendant was held on July 18, a docket entry was made for the State's petition to vacate the defendant's probation, with the notation that it had been actually filed eight days earlier, on July 10. The defendant argues that the deputy clerk who received the motion on August 17 originally intended for it to be recorded in the docket sheet on the hearing on August 21, together with a notation that it had actually been filed on August 17. Instead of recording the filing of the document, the clerk simply included it in the case file sent to the Judge hearing the motion.

However, when the defendant on August 21 filed the amended motion for a new trial in open court, together with several other motions, the deputy clerk recording the filing made two further errors. Seeing the erroneous date of August 21 on the first page of the original motion for a new trial, the deputy clerk mistakenly assumed that it had been filed on that date. The clerk did not notice the conflicting date stamp on the second page. Second, when entering the amended motion for a ...


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