Appeal from the Circuit Court of Du Page County. No. 98--CF--391 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
In September 1998 a jury found defendant, Darren Clark, guilty of the offense of unlawful possession of a stolen motor vehicle (625 ILCS 5/4--103(a)(1) (West 1998)), and the trial court subsequently sentenced him to eight years' imprisonment with credit for time served. Defendant filed a pro se notice of appeal, and five days later, his attorney filed a motion to reconsider. Two weeks after defense counsel filed the motion to reconsider, defendant filed another pro se notice of appeal. The State moved to strike defendant's motion to reconsider, and the trial court granted the State's motion. Defendant raises various errors on appeal now, including whether he was denied the effective assistance of counsel. For the reasons that follow, we vacate the trial court's order striking defendant's motion to reconsider and remand the cause for further proceedings.
The relevant facts taken from the record on appeal reflect that defendant was sentenced on September 9, 1998, and on September 30, 1998, he filed a pro se notice of appeal. On October 5, 1998, the public defender who represented defendant at trial filed a motion to reconsider defendant's sentence. On October 22, 1998, defendant filed another pro se notice of appeal. At a hearing conducted on October 29, 1998, the State moved to strike defendant's motion to reconsider, arguing that the trial court lacked jurisdiction over the cause once defendant filed his pro se notice of appeal on September 30, 1998. The trial court agreed with the State's position and granted its motion to strike.
On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt of unlawful possession of a stolen motor vehicle. Under this issue, defendant argues that the State failed to prove that he intended to permanently deprive the victim of the stolen car. Additionally, defendant contends that his trial counsel was ineffective. Defendant argues that his counsel was ineffective because she failed to ask that the jury instructions provide that unlawful possession of a stolen motor vehicle requires the State to prove that defendant intended to permanently deprive the victim of the stolen automobile. Defendant also claims that his counsel was ineffective because she did not object when the State argued during closing arguments that permanent deprivation is not an element of unlawful possession of a stolen motor vehicle.
Although no question is raised concerning our jurisdiction, we must consider the matter sua sponte. People v. Schram, 283 Ill. App. 3d 1056, 1060 (1996). The jurisdictional issue presented in this cause is whether the Illinois Supreme Court's decision in People v. Bounds, 182 Ill. 2d 1 (1998), applies to this situation and mandates that, once defendant filed his notice of appeal, the trial court was divested of jurisdiction.
Bounds involved a situation in which the defendant, who was before the court on a post-conviction petition, simultaneously filed a motion to reconsider and a notice of appeal. Bounds, 182 Ill. 2d at 3. The supreme court concluded that it had jurisdiction to address the merits of the case because once the notice of appeal was filed the trial court was divested of jurisdiction, and the jurisdiction of the reviewing court attached instanter. Bounds, 182 Ill. 2d at 3. In reaching this conclusion, the supreme court relied on Daley v. Laurie, 106 Ill. 2d 33 (1985), and the court did not acknowledge any of the appellate court decisions that were decided before Bounds and that reached a contrary conclusion. The court noted that the Laurie defendant filed a notice of appeal on the same day he filed his postjudgment motion. Laurie, 106 Ill. 2d at 35.
We believe that Bounds does not apply because, unlike Bounds and Laurie, here, the notice of appeal and the motion to reconsider were filed five days apart. In contrast, the motion to reconsider and the notice of appeal in Bounds were filed simultaneously. Bounds is also distinguishable from this case because Bounds involves post-conviction proceedings and not a motion to reconsider sentence, whereas this case involves a motion to reconsider sentence. See People v. Everage, 303 Ill. App. 3d 1082, 1085 (1999). Because of these differences, we determine that Bounds is distinguishable and does not apply here.
While we conclude that Bounds does not apply to this cause, we must address the Illinois Appellate Court cases that have applied Bounds to direct appeal criminal cases. Since Bounds, two Illinois Appellate Court opinions have applied the jurisdictional rule set forth in Bounds to situations where a defendant made a direct appeal to the appellate court. Those two cases are People v. Jenkins, 303 Ill. App. 3d 854 (1999), and People v. Foster, 309 Ill. App. 3d 1 (1999). Another Illinois Appellate Court case, People v. Everage, 303 Ill. App. 3d 1082 (1999), chose not to follow Bounds by distinguishing Bounds and limiting Bounds to its facts.
In Jenkins, the defendant filed a notice of appeal seven days before he filed a motion to reconsider his sentence. Jenkins, 303 Ill. App. 3d at 856. The Appellate Court, Fourth District, reluctantly concluded that it had jurisdiction to consider the defendant's appeal. Jenkins, 303 Ill. App. 3d at 859-60. In reaching this conclusion, the court looked to Bounds, Laurie, and People v. Jackson, 239 Ill. App. 3d 165 (1992), a case the Appellate Court, Fourth District, decided prior to Bounds. Jenkins, 303 Ill. App. 3d at 859. In reference to Bounds and Laurie, the court noted that the notices of appeal and postjudgment motions in those cases were filed on the same day (Laurie) or simultaneously (Bounds). Jenkins, 303 Ill. App. 3d at 857. The Jenkins court's hesitation to apply Bounds was apparent when it made the following statement:
"This court has ruled 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 [citations], but an otherwise timely motion to reconsider sentence, filed after the notice of appeal, has no such effect [citation]. These rules are consistent with Laurie and Bounds, but are not consistent with each other or with the rule in civil cases [citation].
If not for the precedent set in Bounds, *** this court was prepared to reconsider its holding in Jackson and to 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." Jenkins, 303 Ill. App. 3d at 859.
We believe that Jenkins does not apply to this cause because its holding is based on Bounds, and, as previously noted, we determine that Bounds is distinguishable from this appeal. We also must note that Jenkins applied Bounds reluctantly, pointing out the inconsistences Bounds created. We believe that the reviewing court's hesitation in Jenkins to apply Bounds suggests that Jenkins is not persuasive authority for applying Bounds in direct appeal cases where a notice of appeal and a motion to reconsider the sentence are filed days apart. Thus, we decline to follow Jenkins.
In Foster, a case in which the State filed a motion to reconsider the defendant's sentence, the Appellate Court, First District, followed Bounds and held that the State's motion to reconsider the defendant's sentence that was filed after the defendant filed his notice of appeal did not reinstate jurisdiction with the trial court. Foster, 309 Ill. App. 3d at 7. In reaching this conclusion, the appellate court reasoned that the State's posttrial motion did not serve to dismiss the previously filed notice of appeal because no case, statute, or rule allowed the State to circumvent a defendant's notice of appeal by simply filing a motion to reconsider after the defendant filed a timely notice of appeal. Foster, 309 Ill. App. 3d at 8. The Foster court also seemed to suggest that a contrary conclusion would only frustrate the policy that a party should not be allowed to file posttrial motions every time a new legal theory came to mind. Foster, 309 Ill. App. 3d at 8.
We see two potential problems with Foster. First, we believe that Foster is distinguishable from the present cause because in Foster the State filed a motion to reconsider the sentence and argued that defendant should receive consecutive and not concurrent sentences. Foster, 309 Ill. App. 3d at 5-6. In contrast, here, defendant filed a motion to reconsider his sentence and he argued that his sentence should be reduced. In Foster, there was no law that addressed a motion to increase defendant's sentence. However, here, as noted in Everage, section 5--8--1(c) of the Unified Code of Corrections (the Code) (730 ILCS 5/5--8--1(c) (West 1998)) provides that "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 ...