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People v. Norton

Court of Appeals of Illinois, Second District

February 19, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROBERT NORTON, Defendant-Appellant

          Appeal from the Circuit Court of Winnebago County. No. 11-CF-1763. Honorable Gary V. Pumilia, Judge, Presiding.

          SYLLABUS

         Defendant's 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 supervisory order.

         Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate Defender's Office, of Elgin, for appellant.

         Joseph 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 People.

         Jorgensen and Spence, Justices concurred in the judgment and opinion.

          OPINION

          McLAREN, JUSTICE.

          [¶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.

         [¶2] I. BACKGROUND

          [¶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,

Page 1099

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 ...


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