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People v. Everage

April 28, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH EVERAGE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 97-CF-355

The opinion of the court was delivered by: Justice Welch

Honorable David R. Herndon, Judge, presiding.

A jury found defendant, Kenneth Everage, guilty of home invasion. On June 5, 1998, defendant was sentenced to 60 years' imprisonment. On June 8, 1998, defendant filed a motion to reconsider sentence. On June 10, 1998, defendant filed a pro se notice of appeal. On June 12, 1998, defendant's motion to reconsider sentence was denied. No second notice of appeal was filed.

This court directed defendant to show cause why this appeal should not be dismissed for lack of jurisdiction pursuant to Supreme Court Rule 606(b) (134 Ill. 2d R. 606(b)), as the notice of appeal was filed prior to the Disposition of the motion to reconsider sentence.

In response, defendant asserts that the appeal should be dismissed pursuant to People v. Bounds, 182 Ill. 2d 1, 694 N.E.2d 560 (1998). We disagree. We find that Bounds is not controlling. Instead, we hold that the dismissal of this appeal is mandated by Supreme Court Rule 606(b) and section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1996)). Accordingly, we dismiss this appeal for lack of jurisdiction.

In Bounds, the capital defendant filed a post-conviction petition. On March 28, 1996, the circuit court granted the State's motion to dismiss the petition. Twenty-nine days later, defendant filed both a motion for reconsideration and a notice of appeal. A question was raised as to the jurisdictional impact the simultaneous filing of the notice of appeal and the motion to reconsider would have on the court's jurisdiction. The Bounds court held that defendant's notice of appeal vested the appellate court with jurisdiction instanter and divested the circuit court of jurisdiction. Bounds, 182 Ill. 2d at 3, 694 N.E.2d at 561.

If Bounds is applied herein, this court was vested with jurisdiction when defendant filed his notice of appeal and the circuit court was divested of power to consider the motion to reconsider sentence. Contrary to defendant's contention, Bounds would not mandate the dismissal of this appeal; instead, Bounds would require this appeal to go forward with no sentencing issues preserved for review. The difference between this case and Bounds is that, in this appeal, defendant's notice of appeal and motion to reconsider were not filed on the same day, although both were filed within 30 days of the final judgment. We believe that this is a distinction without a difference as Bounds seems to hold that the filing of a notice of appeal constitutes the abandonment of the posttrial motion.

Parenthetically, we note that the supreme court looked unfavorably upon the "abandonment" theory in a civil appeal construing Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)). Chand v. Schlimme, 138 Ill. 2d 469, 563 N.E.2d 441 (1990). The court found that there must be a more affirmative indication of an abandonment of a timely filed posttrial motion than the mere filing of a notice of appeal. 138 Ill. 2d at 480, 563 N.E.2d at 446. Admittedly, the court was construing the more specific language of Rule 303(a) providing that when a timely postjudgment motion has been filed by any party, a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion shall have no effect and shall be withdrawn by the party who filed it. However, as one court has noted, the outcome should be no different under Supreme Court Rule 606(b). See People v. Whigam, 202 Ill. App. 3d 252, 257, 559 N.E.2d 896, 899 (1990).

Supreme Court Rule 606(b) provides that a notice of appeal must be filed within 30 days after the entry of the final judgment or, if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion. 134 Ill. 2d R. 606(b). It is well established that a motion to reconsider sentence is a "motion directed against the judgment" which, if timely filed, will toll the 30-day appeal period. See People v. Easley, 199 Ill. App. 3d 179, 183, 556 N.E.2d 802, 805 (1990). The "or if" language of Rule 606(b) suggests that if a timely posttrial motion is filed, the 30-day appeal period is tolled even if a notice of appeal is also filed within the same 30 days. The appellate court has so held, finding that a timely filed post-sentencing motion constitutes an implicit motion to dismiss an appeal despite the defendant's failure to file a formal motion to dismiss the appeal pursuant to Supreme Court Rule 309 (134 Ill. 2d R. 309), which is made applicable to criminal appeals pursuant to Supreme Court Rule 612(a) (134 Ill. 2d R. 612(a)). See People v. Hook, 248 Ill. App. 3d 16, 615 N.E.2d 6 (1993) (where both notice of appeal and post-sentencing motion filed within 30 days of sentencing, motion treated as implicit motion to dismiss appeal); accord People v. Richmond, 278 Ill. App. 3d 1042, 663 N.E.2d 1090 (1996); People v. Rowe, 291 Ill. App. 3d 1018, 684 N.E.2d 1368 (1997); but see People v. Jackson, 239 Ill. App. 3d 165, 606 N.E.2d 809 (1992) (notice of appeal trumps posttrial motion).

Unlike Bounds, the Hook line of cases involves direct appeals from a judgment entered on a verdict, rather than post-conviction relief. We believe that this sufficiently distinguishes Bounds as Bounds does not involve the application of section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1996)). The statute provides in pertinent part:

"A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. A defendant's challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence. However, the court may not increase a sentence once it is imposed.

If a motion filed pursuant to this subsection is timely filed within 30 days after the sentence is imposed, the proponent of the motion shall exercise due diligence in seeking a determination on the motion and the court shall thereafter decide such motion within a reasonable time.

If a motion filed pursuant to this subsection is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court." 730 ILCS 5/5-8-1(c) (West 1996).

The statute clearly provides that if a post-sentencing motion is timely filed, then the circuit court is required to consider the motion, and for purposes of perfecting an appeal, no final judgment shall be considered entered until the motion is disposed of by order entered by the trial court. Read together, Supreme Court Rule 606(b) and section 5-8-1(c) provide that if a "motion directed against the judgment" is timely filed, in this case, a post-sentencing motion, then the appeal period is tolled until that motion is ruled upon. Here, defendant's timely motion to reconsider sentence rendered his notice of appeal premature. As ...


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