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
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
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 a 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 affirm in part, vacate in part, and remand with directions.
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.
A. Effect of Filing Posttrial Motion in Circuit Court After Notice of Appeal
The supreme court recently resolved this issue in People v. Bounds, 182 Ill. 2d 1, 2, 694 N.E.2d 560, 561 (1998), and we are obliged to follow that ruling. In Bounds, the defendant filed a notice of appeal simultaneously with his motion for reconsideration and the court addressed the jurisdictional issue sua sponte, as we do here. The court reached its Conclusion in a single paragraph:
"This court's holding in Daley v. Laurie, 106 Ill. 2d 33, [476 N.E.2d 419] (1985), is dispositive of the issue. In [Laurie], the criminal defendant filed a motion for [a] new trial on the same day he filed a notice of appeal. The trial court granted the motion for [a] new trial, and we held that improper, stating that the jurisdiction of the appellate court attaches upon the proper filing of a notice of appeal. When the notice of appeal is filed, the appellate court's jurisdiction attaches instanter, and the cause is beyond the jurisdiction of the trial court. [Citation.] In the case at bar[,] defendant similarly filed a motion for reconsideration simultaneously with his notice of appeal. Accordingly, the notice of appeal divested the circuit court of jurisdiction, and the jurisdiction of this court attached instanter." Bounds, 182 Ill. 2d at 3, 694 N.E.2d at 561.
Laurie was decided in 1985 but, since that time, it has been cited only a few times. In the meantime, a body of law has developed on this issue. This body of case law has, for the most part, reached the opposite Conclusion.
This court, over Justice McCullough's Dissent, reached the same Conclusion as Bounds in People v. Jackson, 239 Ill. App. 3d 165, 167, 606 N.E.2d 809, 810 (1992). We did not, however, rely on Laurie to reach that result. 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 posttrial motion is timely filed, even if it is preceded by the filing of a notice of appeal, the filing of the posttrial 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 (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 ...