Appeal from the Circuit Court of Cook County No. 95 CR 13490 Honorable Daniel M. Locallo and Kenneth J. Wadas, Judges Presiding.
The opinion of the court was delivered by: Justice Cahill
We are asked to consider whether a defendant convicted and sentenced in absentia and whose timely filed direct appeal is dismissed under the fugitive rule may file a second notice of appeal more than three years after the time for the filing of a direct appeal has passed. We find that we lack jurisdiction to consider the first appeal under the guise of a second notice of appeal. We also find that the trial court was without jurisdiction to reconsider orders entered after the first notice of appeal was filed. We conclude that under the fugitive rule, we have the discretion on proper motion to reinstate an earlier dismissed but timely filed direct appeal if and when the absent defendant is returned to custody. We conclude that defendant must move to reinstate his earlier dismissed but timely filed direct appeal.
Defendant was charged with the attempted first degree murder of his cousin Alejo Vasquez. Defendant was tried in a bench trial conducted simultaneously with a co-defendant's jury trial that began on April 16, 1996. Opening statements were made and testimony was heard the first day. The co-defendant's jury trial was continued to April 17, 1996. Defendant's bench trial was continued to April 23, 1996.
Defendant did not appear for trial on April 23. The trial court continued the case to May 1, 1996, to give defendant an opportunity to appear. Defendant failed to appear on May 1. The trial court then found that defendant was willfully absent and conducted a bench trial in absentia. Defendant was found guilty of attempted first degree murder on May 1, 1996. The case was then continued to May 17 for sentencing.
Defendant was still absent on May 17, 1996. Defendant's attorney filed a motion for a new trial, which was denied on May 28, 1996. Defendant was then sentenced in absentia to 19 years in prison. Defendant's absence prevented preparation of a presentence investigation report. His sentence was based on the conviction and his criminal background alone. The trial judge said on the record that he would "continue" the case to entertain a motion to reconsider defendant's sentence when he was returned to custody. No continuance date was set. Defendant's attorney filed a timely notice of appeal on May 28, 1996. We later dismissed defendant's direct appeal No. 1-96-2127 on April 3, 1997, on the State's motion. No briefs had yet been filed.
Defendant was arrested on an outstanding warrant over two years later, on July 12, 1999. Defendant appeared before the trial court on July 21, 1999. The judge hearing the call was not the same judge who conducted defendant's trial and imposed sentence. The second judge noted that defendant had been sentenced in 1996 and that judgment on that sentence would have been entered in 1996. The judge also noted that defendant had not been admonished about his appeal rights in 1996. But the judge declined to admonish defendant then, stating that the admonishment would trigger the 30-day period for filing an appeal. The judge said he was entering judgment on the 1996 sentence and then told defendant that he had 30 days to appeal the original guilty finding and sentence. The case was continued to August 13, 1999.
A different attorney filed an appearance on defendant's behalf on August 13, 1999. The new attorney filed a motion to reduce or modify the sentence imposed in 1996. Defendant's attorney later filed a motion for a new trial on April 17, 2000. This motion challenged the sufficiency of the evidence and claimed that the sentence was excessive in part because defendant was sentenced without a presentence investigation report. The trial court ordered a presentence investigation report and continued the case to January 10, 2001.
On that date, the trial court first considered its jurisdiction to reconsider a three-year-old sentence. The trial court concluded that it had jurisdiction based on comments made by the original trial judge at sentencing that he would reconsider the 19-year sentence if defendant was returned to custody. The trial court then denied the second motion for new trial filed on April 17, 2000, and continued the case to February 8, 2001, for a new sentencing hearing.
A sentencing hearing was held on February 27. The court heard arguments from both the State and defendant. Defendant admitted to the court that he deliberately fled the jurisdiction in 1996. The trial court stated that it considered several factors, including those factors considered by the original trial judge. The court said it agreed with the original sentence imposed:
"I can't say as I really find any flaw with [the original trial judge's] sentence, but just so the appellate court, if it goes up there for a review, is crystal clear that I did, in fact, reconsider all of these facts and circumstances, I will sentence the defendant to 17 years in the Illinois Department of Corrections, time credit for all the days that he had been in custody."
On March 9, 2001, defendant filed a motion to reduce, correct or modify the 17-year sentence. The motion was denied the same day. A second notice of appeal was then filed on March 9, 2001.
Defendant argues on appeal that the evidence is insufficient to prove him guilty beyond a reasonable doubt. The State responds that we have no jurisdiction over defendant's attempted second direct appeal because an earlier filed direct appeal was properly dismissed under the fugitive rule. The State also contends that the original 19-year sentence imposed in 1996 must be reinstated and the 17-year sentence imposed in 1999 be vacated. The State alternatively argues that the evidence against defendant is sufficient to support a conviction beyond a reasonable doubt.
We agree with the State that the original 19-year sentence must be reinstated. The modified 17-year sentence is vacated. We also find that the second notice of appeal, filed on March 9, 2001, was insufficient to vest us with jurisdiction and that the original appeal has not ...