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10/20/88 the People of the State of v. Jessie Partee

October 20, 1988





530 N.E.2d 460, 125 Ill. 2d 24, 125 Ill. Dec. 302 1988.IL.1549

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


JUSTICE CLARK delivered the opinion of the court.


The principal question raised by this appeal is whether a defendant who is convicted in absentia may appeal his conviction without first moving for a hearing to determine whether his absence from trial was willful. We answer this question in the affirmative.

The defendant, Jessie Partee, Jr., was indicted for aggravated battery in the circuit court of Winnebago County. He was present during the presentation of the State's case in chief. However, he failed to return to court after the State rested. After a short recess, the trial proceeded, and the defendant was convicted in absentia. The defendant was also sentenced in absentia to five years in prison. The defendant then appealed his conviction to the appellate court, raising as his sole issue on appeal the contention that he could not be lawfully tried in absentia because he had not been advised by the trial court that trial and sentencing could be conducted in his absence.

In the appellate court the State moved to dismiss the appeal on the grounds that the appellate court lacked jurisdiction. More precisely, the State argued that the defendant's failure to move for a hearing on the willfulness of his absence, as provided for in section 115-4.1(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(e)), rendered his conviction and sentence in absentia not final and appealable. The appellate court, in a unanimous decision, rejected the State's argument, holding that the defendant is not required to file for a section 115-4.1(e) hearing before appealing a conviction in absentia. Turning to the merits of the defendant's appeal, the court found it could not determine whether the defendant had been properly admonished because of a conflict between the common law record and the report of proceedings. The appellate court therefore remanded the cause for an evidentiary hearing under Rule 329 (107 Ill. 2d R. 329) to resolve the conflict. 153 Ill. App. 3d 841.

The issue presented here depends upon the interpretation of section 115 -- 4.1(e) and of our rules. Section 115 -- 4.1 allows the State to try in absentia defendants who willfully avoid appearing for trial. Under section 115 -- 4.1(b), "the absence of the defendant from a trial conducted pursuant to this section does not operate as a bar to concluding the trial, to a judgment of conviction resulting therefrom, or to a final Disposition of the trial in favor of the defendant." Moreover, section 115 -- 4.1(c) goes on to provide that a convicted defendant shall be sentenced in absentia. Once sentenced, however, the defendant is not without remedy. Under section 115 -- 4.1(e):

"When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State's Attorney on the defendant's request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence." Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(e).

After such a hearing a defendant whose section 115-4.1(e) motion has been denied "may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court." Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(g).

Our rules provide that an appeal to the appellate court in a criminal case must be perfected by the filing of a notice of appeal. However, "[n]o step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional." (107 Ill. 2d R. 606(a).) Subject to certain exceptions, a notice of appeal must be filed within 30 days after the entry of "the final judgment appealed from." 107 Ill. 2d R. 606(b).

While the State leans more on policy considerations than on the language of the statute or rules, its position is not entirely devoid of statutory analysis. The State argues that the legislature intended the appeal provision contained in section 115 -- 4.1(g) to supersede the absent defendant's right to appeal his conviction immediately after final judgment. The State argues, in other words, that section 115 -- 4.1(g) strips the appellate court of jurisdiction over the appeal of a defendant tried in absentia, at least until the defendant attempts to make the showing of nonwillfulness contemplated in section 115 -- 4.1(e). In another variation upon the same argument, the State contends that a judgment in absentia is not final and appealable until the defendant moves for a new trial under section 115 -- 4.1(e). Thus, the defendant's notice of appeal would be premature under Rule 606(b), and the lack of a timely notice of appeal would deprive the appellate court of jurisdiction.

Neither argument, in our opinion, holds much water. Nothing in the language of section 115 -- 4.1 explicitly deprives the appellate court of jurisdiction over an absent defendant's immediate appeal. Nor do the statements of various legislators quoted in the State's brief support such an interpretation. In fact, all of these statements merely argue that the statute's provision for appeal after a section 115 -- 4.1 hearing was designed to assure constitutionality of the statute.

Moreover, acceptance of the State's interpretation of section 115 -- 4.1(e) as a jurisdictional predicate would lead to absurd and unfortunate results. It is an elementary principle of statutory interpretation that no statute should be construed in a manner which will lead to consequences which are absurd, inconvenient, or unjust. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 193; People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 312-13.) The inJustice would be ...

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