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09/04/97 PEOPLE STATE ILLINOIS v. JOHN LILLY

September 4, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN LILLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County. No. 83-CF-240. Honorable David W. Watt, Jr., Judge, presiding.

Rule 23 Order of July 8, 1997 Redesignated Opinion and Ordered Published September 4, 1997.

The Honorable Justice Chapman delivered the opinion of the court. Kuehn, P.j., and Hopkins, J., concur.

The opinion of the court was delivered by: Chapman

ORDER

This cause coming to be heard on defendant's motion to publish, and the court being advised in the premises:

IT IS THEREFORE ORDERED that defendant's motion to publish shall be and hereby is, GRANTED.

The Honorable Justice CHAPMAN delivered the opinion of the court:

Defendant seeks to appeal from the dismissal of his petition seekingpost-conviction relief in the circuit court of Jackson County. The State has objected, contending that the appeal is untimely, given that the petition was dismissed on November 14, 1991, and that Supreme Court Rule 606(c) (134 Ill. 2d R. 606(c)) cannot be extended to allow this court to assume jurisdiction of an appeal more than six months after the entry of final judgment. The State has also addressed the merits of the appeal, in the event that the appeal is allowed to go forward. We have taken this issue with the appeal and will address it before proceeding to other issues.

I.

Defendant was charged with the murder of Edward Fletcher, Jr. Following a jury trial in the circuit court of Jackson County, he was found guilty and sentenced to 40 years in prison. This court affirmed his conviction and sentence in People v. Lilly, 139 Ill. App. 3d 275, 487 N.E.2d 414, 93 Ill. Dec. 747 (1985). Defendant's January 13, 1988, postconviction petition was dismissed on March 29, 1989, on res judicata grounds. The State was ordered to prepare a written order to that effect. On February 1, 1991, this court reversed the dismissal of the petition because counsel had failed to file a certificate pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). We directed that on remand someone other than Public Defender Robert Van Derhoff should be appointed to represent defendant in postconviction proceedings.

Kari Mason, an assistant public defender, was appointed to represent defendant. She filed a Rule 651(c) certificate on June 24, 1991, at a status hearing at which defendant was present. The State filed a motion to dismiss the postconviction petition on September 12, 1991, and the court dismissed the petition on November 15, 1991.

Almost four years later, on September 25, 1995, defendant filed a pro se "motion to show reasonable cause for late notice of appeal" in the circuit court of Jackson County. This motion asserted that defendant never received notice that his postconviction petition had been dismissed on November 15, 1991, and the motion sought leave of the trial court to file a late notice of appeal. The circuit court forwarded the motion to this court, and it was filed on October 11, 1995. Ultimately, this court appointed the local Office of the State Appellate Defender to represent defendant on appeal and granted it additional time in which to file a properly amended motion for leave to file a late notice of appeal.

On December 7, 1995, appellate counsel filed a motion to have defendant's October 11, 1995, document construed as a timely notice of appeal, notwithstanding that it was filed nearly fours years after his postconviction petition was dismissed. Counsel asserts thatbecause the circuit clerk failed to send defendant notice of the adverse decision and to inform him of his rights to appeal as mandated by Supreme Court Rule 651(b) (134 Ill. 2d R. 651(b)), his failure to file a timely notice of appeal is excused. The State filed an objection and argues that this court is without jurisdiction to entertain the appeal because the appeal not only was filed more than 30 days after the entry of judgment (see Supreme Court Rule 606(b) (134 Ill. 2d R. 606(b)) but was filed well beyond the six-month extension period provided for under Supreme Court Rule 606(c).

Supreme Court Rule 606(b) mandates that a notice of appeal be filed within 30 days from the entry of the judgment from which the appeal is taken. However, the appellate court may extend this period in ...


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