February 19, 2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
ROBERT NORTON, Defendant-Appellant
from the Circuit Court of Winnebago County. No. 11-CF-1763.
Honorable Gary V. Pumilia, Judge, Presiding.
appeal challenging the $150,000 restitution order entered
against defendant following his conviction on two counts of
aggravated domestic battery was dismissed as untimely based
on the application of the rule in Serio, since
defendant filed his appeal beyond the period in which the
appellate court could grant him leave to file a late notice
of appeal, and the appellate court lacked any other way to
take jurisdiction, although the supreme court could issue a
A. Lilien and Jaime L. Montgomery, both of State Appellate
Defender's Office, of Elgin, for appellant.
P. Bruscato, State's Attorney, of Rockford (Lawrence M.
Bauer and Marshall M. Stevens, both of State's Attorneys
Appellate Prosecutor's Office, of counsel), for the
and Spence, Justices concurred in the judgment and opinion.
[¶1] Defendant, Robert Norton, appeals,
challenging the restitution order entered as part of the
sentence imposed for his conviction of aggravated domestic
battery (720 ILCS 5/12-3.3(a) (West 2010)). His appeal is
untimely under the rule in People v. Serio, 357
Ill.App.3d 806, 830 N.E.2d 749, 294 Ill.Dec. 337 (2005). We
therefore dismiss the appeal for want of jurisdiction.
[¶3] Defendant, who had a bench trial, was
convicted of two counts of aggravated domestic battery. His
sentencing hearing took place on May 11, 2012. The court
imposed a sentence of imprisonment and ordered defendant to
pay $150,000 in restitution to the battery victim. Defense
counsel filed a motion to reconsider the sentence, which the
court heard and denied on June 29, 2012.
[¶4] Immediately upon the court's denial
of the motion to reconsider the sentence,
defendant told the court that he wanted to raise a claim of
ineffective assistance of counsel and asked the court how
that would interact with his right to appeal. The court
advised defendant that if he filed the motion he had with
him, " the notice of appeal is not filed," and
after the court decided defendant's motion defendant
could " decide what [he] want[ed] to do." Defendant
asked for further clarification, and the court told him,
" [I]f you file it now, I will consider this as part of
a motion for a new trial, and I'll deal with it here,
right now before the appeal." The State argued that the
motion " should be" a postconviction petition, but
the court stated, " It makes more sense for me to deal
with it now rather than have it come back and me deal with
it." Defendant filed his motion, and the court appointed
new counsel to represent him on his motion.
[¶5] Defense counsel filed what he called a
supplemental motion for a new trial, stating that it was his
understanding that, under the trial court's
interpretation, the time defendant had to appeal was not
running during the pendency of the motion. The State asserted
that the court had " advised [original defense counsel]
not to file the [appeal] papers at [the] last court date so
the Court would retain jurisdiction." The court denied
the motion at the conclusion of an evidentiary hearing that
ended on May 3, 2013. Defendant filed a notice of appeal
immediately upon the court's entry of the denial.
[¶7] On appeal, defendant asserts that we
have jurisdiction of this appeal under the rule we set out in
Serio. We do not agree. Application of the rule in
Serio results in this appeal's dismissal for
untimeliness. Further, because defendant filed his notice of
appeal beyond the period in which we may grant a motion for
leave to file a late notice of appeal (see Ill. S.Ct. R.
606(c) (eff. Mar. 20, 2009)), we lack any other possible
basis to take jurisdiction of the appeal. Cf.
People v. Stanford, 2011 IL App. (2d) 090420, ¶
¶ 20-26, 953 N.E.2d 992, 352 Ill.Dec. 311 (we may deem
the filing of a notice of appeal within the time for filing a
late notice of appeal as equivalent to the filing of a motion
for leave to file the late notice of appeal).
[¶8] Under our holding in Serio, a
pro se motion asserting the ineffectiveness of
counsel that is filed fewer than 30 days after the court has
decided a postsentencing motion does not extend the
time in which a defendant may appeal. Serio, 357
Ill.App.3d at 817. To be sure, the trial court has both
jurisdiction to consider such a motion and a
duty to address the sufficiency of that motion.
Serio, 357 Ill.App.3d at 816-17. Nevertheless, a
successive postjudgment motion does not extend the time for
appeal. Serio, 357 Ill.App.3d at 817.
[¶9] The rule in Serio creates a
conundrum for a defendant when, as here, the consideration of
the pro se motion delays the notice of appeal more
than 30 days after the denial of the first postjudgment
motion. Here, the court did not assist defendant. Instead, it
misadvised defendant that the time in which he could appeal
was tolled when, as we have shown, it was not.
Defendant's loss of his right to appeal was rooted in
incorrect advice from the court; the result here is
problematic in that respect. However, we do not have the
authority to disregard our lack of jurisdiction; such
jurisdiction may be realized only by a supreme court
[¶11] For the reasons stated, we dismiss
defendant's appeal for want of jurisdiction.
[¶12] Appeal dismissed.