Appeal fro the Circuit Court of De Kalb County. No. 11-CF-417. Honorable Robbin J. Stuckert, Judge, Presiding.
Order vacated; motion dismissed.
Although defendant was admonished that she had 30 days after her sentence to file a notice of appeal or a motion to reconsider her sentence or her right to appeal would be lost, she still filed a motion to reconsider her sentence 34 days after she was sentenced, and at the hearing on the motion, it was denied by the trial court following the prosecutor's statement that the State had no argument, and when defendant appealed, the appellate court held that it only had jurisdiction to vacate the denial of the motion and order the motion dismissed, since the motion was untimely and the revestment doctrine did not apply in the absence of any contest of the motion by the State that would revest the trial court with jurisdiction; furthermore, defendant's notice of appeal was late because the motion to reconsider did not extend the time to appeal.
Thomas A. Lilien and Jessica Wynne Arizo, both of State Appellate Defender's Office, of Elgin, for appellant.
Richard H. Schmack, State's Attorney, of Sycamore (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.
[¶1] After a bench trial, defendant, Kristen Shaw, was convicted of aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2010)). On July 20, 2012, she was sentenced to three years' probation. Pursuant to Illinois Supreme Court Rule 605(a)(3) (eff. Oct. 1, 2001), the trial court admonished her that she had 30 days to file a notice of appeal or a motion to reconsider the sentence; " [i]f that notice of appeal or motion to reconsider is not filed within 30 days of today's date, you will lose the right to appeal." Defendant filed a motion to reconsider, but not until August 23, 2012, 34 days after sentencing.
On October 4, 2012, at the hearing on the motion, the assistant State's Attorney said simply, " I don't have any argument." The trial court denied the motion on the merits. That same day, defendant filed a notice of appeal. On appeal, defendant argues that she was not proven guilty beyond a reasonable doubt. However, under the supreme court's recent decision in People v. Bailey, 2014 IL 115459, 378 Ill.Dec. 591, 4 N.E.3d 474, we hold that we have jurisdiction only to vacate the trial court's denial of defendant's motion and to order the motion dismissed.
[¶2] As always, " [o]ur first task is to determine whether we have jurisdiction to consider this appeal." Allianz Insurance Co. v. Guidant Corp., 355 Ill.App.3d 721, 728, 839 N.E.2d 113, 298 Ill.Dec. 126 (2005). In her jurisdictional statement, defendant acknowledges that she did not file a notice of appeal or a motion to reconsider within 30 days after sentencing, and she appears to acknowledge that thus, ordinarily, we would lack jurisdiction. See Ill. S.Ct. R. 606(b) (eff. Mar. 20, 2009); People v. Stanford, 2011 IL App (2d) 090420, ¶ 19, 953 N.E.2d 992, 352 Ill.Dec. 311. However, she asserts that " the trial court had jurisdiction to consider the motion under the doctrine of revestment where the parties actively participated in proceedings and where the State did not object to the [un]timeliness of the motion and participated in the motion hearing." She concludes that, " [b]ecause the notice of appeal was filed within 30 days of the denial of the motion to reconsider sentence, jurisdiction should be found to lie in this Court."
[¶3] " [A]n appeal is perfected by the timely filing of a notice of appeal, and it is this step which vests the appellate court with jurisdiction." In re J.T., 221 Ill.2d 338, 346, 851 N.E.2d 1, 303 Ill.Dec. 103 (2006). Under Illinois Supreme Court Rule 606(b) (eff. Mar. 20, 2009), a notice of appeal is timely if it is filed " within 30 days after the entry of the final judgment appealed from or[,] if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion." The final judgment in a criminal case is the sentence. People v. Caballero, 102 Ill.2d 23, 51, 464 N.E.2d 223, 79 Ill.Dec. 625 (1984). " To be timely, a motion directed against the judgment of sentence must be filed within 30 days of entry of the judgment." Stanford, 2011 IL App (2d) 090420, ¶ 19. Generally, if no motion directed against the judgment is filed within that time, the trial court loses jurisdiction. See People v. Flowers, 208 Ill.2d 291, ...