Appeal from the Circuit Court of Lake County. No. 99--CF--1194 Honorable Raymond J. McKoski, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
Following a bench trial, on October 5, 1999, defendant, Michael A. Miraglia, was found guilty of aggravated fleeing from a police officer (at a rate of at least 21 miles per hour over the speed limit). 625 ILCS 5/11--204.1(a)(1) (West 1998). Following the denials of his posttrial motions, defendant appeals, arguing that (1) he was not found guilty of the offense beyond a reasonable doubt because he claims the officer's testimony did not show he was traveling at least 21 miles per hour over the speed limit; and (2) his defense counsel was ineffective in presenting the affirmative defense of insanity. The trial court sentenced defendant to a term of 24 months' probation with certain conditions attached, including psychiatric and substance abuse evaluation and treatment. After examining the record, we conclude that defendant's appeal is not timely because he has impermissibly filed successive posttrial motions, and we do not have appellate jurisdiction. We therefore dismiss this appeal.
On November 3, 1999, defense counsel, James Valentino, Jr., filed a "Motion to Reconsider Judgment of Guilty." In that motion, defendant raised issues regarding prejudice resulting from the denial of his pretrial motion in limine and regarding the sufficiency of the evidence as to his rate of speed and his insanity defense. The motion summarized in some detail portions of the testimony supporting his claims and the purported evidentiary standards to be applied. The motion sought a directed finding or finding of not guilty. On November 9, 1999, the trial court denied this motion on the merits and then sentenced defendant following an evidentiary hearing. On November 9, defendant also filed his first notice of appeal. On November 23, 1999, new defense counsel, Robert P. Will, Jr., filed an amended notice of appeal.
On December 8, 1999, defendant, through his new counsel, filed a second posttrial motion, in which he raised essentially identical issues regarding the denial of his motion in limine, the sufficiency of the evidence as to the insanity defense and the purported applicable standard of proof, and the sufficiency of the State's evidence; he also advised that he needed additional time for the completion of the report of proceedings.
On December 13, 1999, at the hearing on the motion, the State objected to the filing of the second motion. Defendant argued that the filing of the motion nullified the notice of appeal and asked that the matter be continued to examine the transcripts. The court responded that it generally did not continue posttrial motions for the preparation of transcripts, noting that, in some cases, it would be months before the transcripts were prepared. The court then indicated that there could be a hearing after counsel received the transcripts and, if counsel wanted to "re-raise" something that was found in the transcripts, defendant could file a motion to do that. The court then said it would consider the matters in the second posttrial motion. The State argued that the grounds alleged were insufficient to change the court's prior rulings and asked that the motion be denied.
The court denied the motion on the merits. Defendant again indicated he might file an amended or supplemental posttrial motion, and the court appears to have acquiesced in this approach. However, the court opined that a notice of "appeal would have to be filed within 30 days of today's date." The court then concluded, "Motion denied. Notice of appeal is withdrawn and post-trial motion's denied." The minute order entered on December 13, 1999, states that defendant's posttrial motion is denied and defendant is given leave to withdraw the notice of appeal. There is no mention in the order of a continuance for the purpose of amending the motion.
No new notice of appeal was filed within the following 30-day period. Instead, 29 days later, on January 11, 2000, defendant filed his third posttrial motion, including an amended and supplemental motion to reconsider, that realleged matters raised in the first two motions (including summaries of the testimony), and claiming, in addition, that defendant's trial counsel was ineffective in presenting the insanity defense. The motion noted that, as a result, the court had concluded that the defense had not carried its burden of proof as to the insanity defense by clear and convincing evidence.
On January 12, 2000, defendant also filed a motion to dismiss the prior appeal (No. 2--99--1263). At the hearing on that date, the court stated it was unsure whether it could dismiss the appeal as it had done the last time. Although the court was willing to hear the motion, Will asked to continue it as he wished to supplement the motion with the affidavit of Dr. Baron regarding the gist of what he would have testified. The court stated it would allow the filing of the motion and continued the matter for hearing but would not dismiss the appeal until the time of the hearing. The State objected to the filing of the third posttrial motion on the ground that it was untimely, stating that it wished to preserve its objection for appeal.
At the hearing on January 20, 2000, defense counsel stated that the motion was filed subsequent to the notice of appeal. The court responded that the notice of appeal would be withdrawn after the hearing on the motion and then defendant could "reinstate" the appeal. Regarding the ineffective assistance of counsel claim, defendant's argument concerned the proper standards and medical testimony that should have been used to present the insanity defense.
In addressing the ineffective assistance claim, the court concluded that, under the proper standard--whether defendant lacked a substantial capacity to appreciate the criminality of his conduct as a result of a mental disorder or defect--the substantive evidence showed that defendant was in fact able to appreciate the criminality of his conduct because, just before the police chase began, defendant stopped for a stop sign and he finally did pull over in response to the police car's flashing lights.
In the context of the other evidence, and irrespective of the medical testimony or the level of skill of the attorney, the court concluded it was impossible to find that defendant did not appreciate the criminality of his conduct. The court found insufficient prejudice to sustain an ineffective assistance claim and ruled that the State's evidence was sufficient beyond a reasonable doubt and the affirmative defense was not established by clear and convincing evidence. The court denied the third motion on the merits and "reinstated" the appeal. The State again objected that the appeal was untimely and reserved its objection. Some discussion ensued suggesting that portions of the record were on their way to this court.
The written order entered January 20 stated that the prior appeal (No. 2--99--1263, filed November 9, 1999) was dismissed pursuant to Supreme Court Rule 309. 134 Ill. 2d R. 309 (before record on appeal is filed in reviewing court, trial court may dismiss appeal on motion of party or on stipulation). The order also denied the posttrial motion and stated that the appeal was "reinstated" over the objection of the State and that defendant shall file a new notice of appeal within 30 days. A new notice of appeal in the present cause (No. 2--00--0137) was filed on January 20, 2000.
A reviewing court has the duty to consider whether it has jurisdiction and to dismiss an appeal if it determines that jurisdiction is lacking. Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984). In this case, we conclude that the appeal is untimely because defendant has failed to follow the rules applicable to ...