Appeal from the Circuit Court of Winnebago County. No. 04-CF-4215 Honorable Steven G. Vecchio, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion.
Presiding Justice Jorgensen dissented, with opinion.
Defendant, George H. Hansen, appeals from the order of the circuit court of Winnebago County dismissing his pro se post-conviction petition at the first stage of post-conviction proceedings. We affirm.
Following a jury trial, defendant was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) of his business partner and was sentenced to 60 years' imprisonment. This court affirmed defendant's conviction and sentence in People v. Hansen, No. 2-05-1045 (2007) (unpublished order under Supreme Court Rule 23). Subsequently, defendant petitioned pro se for post-conviction relief. Defendant claimed in his petition that both his trial and appellate counsel were ineffective. On September 23, 2008, after reciting the grounds that defendant advanced for post-conviction relief, the trial court dismissed the petition, finding it frivolous and patently without merit.
Defendant moved the trial court to reconsider its ruling. Defendant's motion to reconsider was placed on the court's call for November 3, 2008. On that date, the court advised the State that it would "[s]chedule it for next week, November 10, at 1:30, and I'll rule on the Motion for Reconsideration." In a written order dated November 5, 2008, the court denied defendant's motion to reconsider. At proceedings held on November 10, 2008, the court advised the State that "just for your information I did enter an order dated November 5 that says that the court being fully advised in the premises finds that [defendant's] motion for reconsideration should be and is hereby denied." Although the court's written order was dated November 5, 2008, it was not file- stamped until November 10, 2008.
The order was delivered to defendant on November 19, 2008, and defendant filed a notice of appeal. The certificate of service accompanying defendant's notice of appeal indicated that defendant placed the notice in the prison's mail system on December 8, 2008, and sent it to the "Clerk of Winnebago" at the listed address. Defendant also verified under section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2008)) that he was a named party in the action, that he had read the notice of appeal, and that the notice of appeal was true and correct to the best of his knowledge and belief. Although the certificate of service contained this verification, it was not notarized and did not indicate that proper postage was prepaid. Attached to the certificate was a copy of the envelope that had contained defendant's notice of appeal. That envelope indicated that postage was paid on December 10, 2008. Defendant's notice of appeal was file-stamped on December 12, 2008.
On June 24, 2009, before the briefs were filed in this court, defendant moved this court to establish jurisdiction. The State objected. On July 9, 2009, this court determined that it had jurisdiction over this appeal. Defendant filed his brief in this court seven months later.
The State now argues again that this court is without jurisdiction over this appeal, as defendant's notice of appeal was not timely filed. A timely filed notice of appeal is both jurisdictional and mandatory. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009). In determining whether defendant's notice of appeal was timely, we look to Supreme Court Rule 606(b) (eff. Sept. 1, 2006), which governs appeals in post-conviction proceedings. See Ill. S. Ct. R. 651(d) (eff. Dec. 1, 1984) (appeals in post-conviction proceedings are governed by the rules that apply in criminal appeals "as near as may be"). Under Rule 606(b), a defendant must file a notice of appeal within 30 days after entry of the order disposing of the post-conviction petition or, if a timely filed motion attacking the ruling on the post-conviction petition is filed, within 30 days after the entry of the order disposing of that motion. Ill. S. Ct. R. 606(b) (eff. Sept. 1, 2006). Whether this court has jurisdiction over this appeal is a question of law, subject to de novo review. John G. Phillips & Associates v. Brown, 197 Ill. 2d 337, 339 (2001).
With these principles in mind, we must first determine when the order disposing of the motion to reconsider was entered. The State argues that "the date the order was entered, not when it was file-stamped, is the proper date." Supreme Court Rule 272 provides:
"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record." Ill. S. Ct. R. 272 (eff. Nov. 1, 1990).
The effective date of a final judgment is the date on which the court's action is publicly expressed, in words and at the situs of the proceeding. In re Marriage of Nettleton, 348 Ill. App. 3d 961, 966 (2004). "A judgment 'becomes public at the situs of the proceeding when it is filed with the clerk of the court.' " Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 126 (1990) (quoting People ex rel. Schwartz v. Fagerholm, 17 Ill. 2d 131, 137 (1959)). Here, the trial court's written order was dated November 5, 2008, but it was not publicly expressed at the situs of the proceeding until it was filed with the clerk on November 10, 2008. To hold that November 5, 2008, was the order's effective date would create an untenable result, as defendant would have lost his ability to appeal under certain scenarios. For example, had the court not entered the order into the court file within 30 days, defendant would have been unable to file his appeal. The court could have set the date for ruling on December 6, 2008 (rather than November 10, 2008), drafted a dismissal order, signed it, and dated it November 5, 2008, and, by leaving the order dormant for 30 days, foreclosed defendant's ability to appeal from the order. Such outcomes would, of course, be unacceptable. The effective date of the court's order in this case was November 10, 2008.
Having determined that the order disposing of the motion to reconsider was entered on November 10, 2008, we must next determine if the notice of appeal was filed by December 10, 2008, 30 days later. The notice of appeal was not received by that date; the trial court received it two days later, on December 12, 2008.
Supreme Court Rule 373 (eff. Feb. 1, 1994), which applies to appeals from post-conviction proceedings (People v. Lugo, 391 Ill. App. 3d 995, 997 (2009)), provides guidance in this area (see Secura, 232 Ill. 2d at 214). That rule states:
"Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing shall be deemed the time of filing. Proof of ...