December 30, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
ROBERT E. JENKINS, DEFENDANT-APPELLANT.
Appeal from Circuit Court of Champaign County No. 97CF819 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
Defendant Robert E. Jenkins was convicted of one count of armed robbery (720 ILCS 5/18-2(a) (West 1996)) on October 16, 1997, following a jury trial in the circuit court of Champaign County. On November 4, 1997, defendant filed a posttrial motion, which was denied by the trial court at the November 18, 1997, sentencing hearing. He was sentenced as an habitual offender to a term of natural life imprisonment. Defendant filed a motion to reconsider sentence and to declare the sentencing statute unconstitutional on December 12, 1997. No hearing was held on that motion and the record does not reveal any Disposition by the trial court. The unresolved motion postdated the notice of appeal, which was filed on December 5, 1997.
He raises two issues on appeal. First, he argues that the sentence is improper because the trial court failed to make a written finding as required by the habitual offender statute (720 ILCS 5/33B-2 (West 1996)). Second, he argues that the trial court failed to comply with section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1(a) (West 1996)), in that he was not given a hearing prior to being ordered to reimburse the county $300 for the cost of his defense. We dismiss the appeal for lack of jurisdiction.
The State argues that defendant has waived his first argument because be failed to raise it before the trial court, either at the sentencing hearing or in his motion to reconsider sentence. The case cited by the State, People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584, 586 (1997), held that section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1996)) requires that sentencing issues be raised in the trial court for those issues to be preserved for appellate review. In addition, the State argues that this court should not review the sentencing issue under the plain error doctrine (134 Ill. 2d R. 615(a)).
Before we respond to the State's waiver argument, we address the threshold matter of appellate jurisdiction. "A reviewing court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking." People v. Theis, 220 Ill. App. 3d 24, 25, 580 N.E.2d 547, 548 (1991). The issue presented is the effect, if any, of the filing of a motion to reconsider sentence one week after the filing of a notice of appeal but within the 30 days allowed by statute (730 ILCS 5/5-8-1(c) (West 1996)) for the filing of such motion.
This court has previously held, over Justice McCullough's Dissent, that the filing of a notice of appeal deprives the trial court of jurisdiction to hear a motion to reconsider sentence that is filed after the notice of appeal. People v. Jackson, 239 Ill. App. 3d 165, 167, 606 N.E.2d 809, 810 (1992). Justice McCullough argued that criminal cases should be governed by the same rule as civil cases (see Chand v. Schlimme, 138 Ill. 2d 469, 477, 563 N.E.2d 441, 445 (1990)). Specifically, in his Dissent, he said: "In civil cases, if a post-trial motion is timely filed, even if it is preceded by the filing of a notice of appeal, the filing of the post- trial motion tolls the time for filing the notice of appeal and requires the withdrawal of the notice of appeal." Jackson, 239 Ill. App. 3d at 168-69, 606 N.E.2d at 811 (McCullough, J., Dissenting).
Other Illinois appellate courts have agreed with that Dissenting opinion. In People v. Hook, 248 Ill. App. 3d 16, 615 N.E.2d 6 (2d Dist. 1993), the defendant filed her notice of appeal on October 22, 1991, and her motion to reduce sentence on November 20, 1991. The court held that a reviewing court in a criminal case lacks jurisdiction when the defendant has filed a timely motion to reduce sentence after filing the notice of appeal. Hook, 248 Ill. App. 3d at 18, 615 N.E.2d at 7-8.
In Hook, the second district was following its own earlier decisions in People v. Curry, 167 Ill. App. 3d 146, 520 N.E.2d 984 (1988), and People v. Giles, 230 Ill. App. 3d 730, 596 N.E.2d 53 (1992), as well as the decision of the first district in People v. Whigam, 202 Ill. App. 3d 252, 559 N.E.2d 896 (1990). The defendant in Curry filed his notice of appeal on the same day he was sentenced. He later retained private counsel, who filed an otherwise timely motion for a new trial and argued that he was entitled to withdraw his notice of appeal. Curry, 167 Ill. App. 3d at 147, 520 N.E.2d at 985. The reviewing court held that the trial court had jurisdiction to rule on the motion for a new trial. Curry, 167 Ill. App. 3d at 150, 520 N.E.2d at 987.
In Giles, the defendant filed a pro se notice of appeal after his attorney filed a motion to withdraw his guilty plea. Giles, 230 Ill. App. 3d at 731, 596 N.E.2d at 54. The trial court declined to rule on the motion because of the subsequent filing of a notice of appeal. The reviewing court held that the notice of appeal was "ineffectual and did not divest the trial court of its jurisdiction" to consider and rule on pending motions. Giles, 230 Ill. App. 3d at 734, 596 N.E.2d at 56.
The first district, in Whigam, discussed the rules governing appeals in civil (155 Ill. 2d R. 303(a)(2)) and criminal cases (145 Ill. 2d Rs. 604(d), 606(b)) and noted that, unlike the rule in civil cases, the rule for criminal appeals does not contain specific language that a notice of appeal has no effect if filed before the entry of the order disposing of the last pending posttrial motion. Whigam, 202 Ill. App. 3d at 257, 559 N.E.2d at 899. Nevertheless, the Whigam court read the rule as incorporating the provision that "a notice of appeal filed before the Disposition of a motion directed to the final judgment in a criminal case is premature." Whigam, 202 Ill. App. 3d at 257, 559 N.E.2d at 899.
The second district has most recently considered this issue in People v. Rowe, 291 Ill. App. 3d 1018, 1020, 684 N.E.2d 1368, 1370 (1997), in which it held that the trial court had jurisdiction to consider defendant's post-sentencing motion, despite his filing of a notice of appeal before making the motion:
"Ordinarily, the filing of a notice of appeal divests the trial court of jurisdiction to enter any order involving a matter of substance and causes the jurisdiction of the appellate court to attach instanter. [Citation.] However, this court has held that the timely filing of the post-sentencing motion (i.e., within 30 days of the judgment) acts as an implicit motion to dismiss the notice of appeal and renders the notice of appeal ineffectual."
Rowe, in turn, noted that its resolution of that case was consistent with the decision of this court in People v. Neal, 286 Ill. App. 3d 353, 675 N.E.2d 130 (1996). In Neal, this court acknowledged the general rule that an appellate court lacks jurisdiction where a motion to reduce sentence is pending at the time the notice of appeal is filed. Neal, 286 Ill. App. 3d at 355, 675 N.E.2d at 131.
In summary, this court has held that a motion to reconsider sentence that is pending at the time the notice of appeal is filed prevents jurisdiction from attaching in the reviewing court, but an otherwise timely motion to reconsider sentence filed after the notice of appeal has no such effect. In light of more recent decisions, we now reconsider this court's holding in Jackson. We hold that a reviewing court has no jurisdiction to hear an appeal when an otherwise timely posttrial motion is pending, even if the motion is filed after the notice of appeal. As a result, we dismiss this appeal for lack of jurisdiction.
The State's waiver argument is, thus, premature. Defendant may raise his claim that the trial court did not make the required written finding in the trial court by amending his pending motion.
We briefly address defendant's assertion that he is entitled to a hearing into his financial circumstances before the trial court may properly order him to reimburse the county for the services of a public defender. Section 113-3.1 of the Code (725 ILCS 5/113-3.1(a) (West 1996)), as interpreted by the supreme court in People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997), "requires that the trial court conduct a hearing into a defendant's financial circumstances and find an ability to pay before it may order the defendant to pay reimbursement for appointed counsel. *** The hearing must focus on the foreseeable ability of the defendant to pay reimbursement as well as the costs of the representation provided." The State agrees that the required hearing was not held. The required hearing, pursuant to Love, should be held when this matter returns to the trial court for further proceedings.
KNECHT, P.J., and MYERSCOUGH, J., concur.