People v. Eddington

• Decision Date: 31 December 1984
• Docket Number: No. 4-82-0700,4-82-0700
• Citation: 84 Ill.Dec. 887,129 Ill.App.3d 745,473 N.E.2d 103
• Parties: , 84 Ill.Dec. 887 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry M. EDDINGTON, a/k/a Mick, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 103

473 N.E.2d 103 129 Ill.App.3d 745, 84 Ill.Dec. 887 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jerry M. EDDINGTON, a/k/a Mick, Defendant-Appellant. No. 4-82-0700. Appellate Court of Illinois,
Fourth District. Dec. 31, 1984.

[129 Ill.App.3d 747]

Page 106

[84 Ill.Dec. 890] Daniel D. Yuhas, Deputy State Appellate Defender, Jonathan Haile, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Lee J. Plummer, State's Atty., Jerseyville, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

[129 Ill.App.3d 748] TRAPP, Justice:

Defendant Jerry "Mick" Eddington was indicted on May 7, 1981, for the offenses of murder and conspiracy to commit murder. (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a)(2), 8-2(a).) On November 3, 1981, a jury convicted defendant on the conspiracy count; the trial judge declared a mistrial on the murder count when the jury was unable to reach a verdict. On July 20, 1982, a second jury convicted defendant of the offense of murder. On August 4, 1982, he was sentenced to an extended term of 50 years' imprisonment, and the conspiracy to commit murder charge was dismissed. Defendant appeals from the judgment of the circuit court of Jersey County. We reverse the judgment and remand the cause for a new trial.

Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt where the only evidence against him was the extensively impeached testimony of co-defendant Hill, for which there was no significant corroboration, (2) whether the State improperly focused the jurors' attention on his failure to testify by bringing attention to the fact that defendant testified at his prior trial, (3) whether improper remarks made by the State during closing argument, commenting on defendant's failure to call witnesses, misstating the evidence, and defining reasonable doubt to the jury constituted reversible error, and (4) whether the trial court abused its discretion by imposing a 50-year extended term sentence on defendant, in view of the disparity between this sentence and the 30-year sentence imposed on co-defendant Hill.

The State argues that defendant has waived his second and third arguments by his failure to raise these points in a timely post-trial motion. The jury verdict was returned on July 20, 1982, with the sentence entered on August 4, 1982. Also on August 20, the court denied defendant's motion for stay of mittimus. Defendant's post-trial motion was thereafter filed on August 31, 1982, and, after several continuances, argued and denied on October 26, 1982. Notice of this appeal was filed on the latter date. The State contends that since defendant's post-trial motion was not filed within 30 days of the return of the verdict, it was untimely under section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 116-1(b)), and, further, since it was filed after the defendant was sentenced and delivered to the penitentiary under a mittimus, that the trial court lacked jurisdiction to consider the motion (see People v. Russo (1962), 24 Ill.2d 311, 181 N.E.2d 103, and People v. Wakeland (1958), 15 Ill.2d 265, 154 N.E.2d 245). The record reflects that on July 20, after the jury returned its verdict and the court set the sentencing hearing [129 Ill.App.3d 749] for August 4, defense counsel inquired whether he would have 30 days from that date for a post-trial motion, and the court answered affirmatively. Similarly, after pronouncing sentence on August 4, the court advised defendant of his right to file a post-trial motion within 30 days of that date and, if that motion were denied, his right to appeal. At the October 26 hearing on defendant's post-trial motion, defendant presented a motion to dismiss a notice of appeal filed between sentencing and the hearing on the post-trial motion, which motion was allowed without objection by the State. The State fully participated in the ensuing hearing on the post-trial motion.

Section 116-1(b) of the Code of Criminal Procedure of 1963 requires that a post-trial motion be filed within 30 days following the entry of a finding or the

Page 107

[84 Ill.Dec. 891] return of a verdict, and failure to file the motion within the allotted time is a ground for its denial. (People v. Colletti (1971), 48 Ill.2d 135, 268 N.E.2d 397.) In People v. Gauwitz (1980), 80 Ill.App.3d 362, 35 Ill.Dec. 955, 400 N.E.2d 92, although not considering the jurisdictional question herein posed by the State, this court considered a timeliness challenge under section 116-1(b) in similar circumstances. Gauwitz held that where the State participated fully in the argument on the post-trial motion and the question of timeliness was first raised on appeal, the State had waived the timeliness argument. We likewise reject the State's timeliness argument as to the requirements of section 116-1(b).

The State next argues that the trial court lacked jurisdiction to consider defendant's post-trial motion. In Illinois the common law rule permitted a trial court to retain jurisdiction over a judgment until the adjournment of the term, except that in criminal cases the trial court lost jurisdiction before the end of the term when the defendant's sentence was executed. Under the practice in this State, when a person accused of a crime was convicted, sentenced, and delivered into the custody of the proper penitentiary officer under a mittimus, the sentence was considered executed and the court lost jurisdiction. That rule was later changed so that the court's jurisdiction ended 30 days from the entry of the judgment, i.e., the entry of judgment as under Supreme Court Rule 606(b) (87 Ill.2d R. 606(b)), rather than the expiration of the term; however, in criminal cases, trial courts lost their jurisdiction as soon as the sentence was executed, if prior to 30 days. Therefore, in criminal cases, the trial court retained jurisdiction to vacate, modify, or set aside a judgment until the sentence was executed, or 30 days after the sentence was imposed, whichever occurred first. (See People v. Hills (1980), 78 Ill.2d 500, 509, 36 Ill.Dec. 682, 686, 401 N.E.2d 523, 527.) Nevertheless, we find the general rule inapplicable, given the [129 Ill.App.3d 750] circumstances of this case.

First, this court in People v. Carnes (1975), 30 Ill.App.3d 1030, 332 N.E.2d 674, where the defendant had been sentenced and mittimus issued prior to the time his post-trial motion had been heard and ruled on, stated:

"The practice of ruling on post-trial motions after the imposition of sentence and delivery of defendant into confinement in the penitentiary is an anomaly which creates problems never before called to our attention. The customary practice is for the trial judge to hear and rule on the post-trial motions prior to imposition of sentence, and certainly prior to issuance of mittimus and transfer of the defendant to the penitentiary.

* * *

* * *

The delay in hearing and ruling on defendant's post-trial motions effectively precluded defendant from prosecuting a direct appeal. It appears that the State's Attorney, defense counsel and the trial judge were unaware of the trial court's loss of jurisdiction. It is manifestly unfair and constitutes a denial of due process to relegate defendant to a position from which only constitutional errors are available to him on appeal from the order denying post-conviction relief. He is, in such a process, effectively denied the right to seek appellate review, on direct appeal, of his claims of error which are not of constitutional magnitude." (30 Ill.App.3d 1030, 1032-33, 332 N.E.2d 674, 676-77.)

This court held that fundamental fairness and the requirements of due process required finding plain error, and reversing and remanding for a new trial. Here, defense counsel argued at the sentencing hearing on August 4, 1982, in support of a motion for stay of mittimus, referring to discussions he had previously had with the court that there was case law saying that the court loses its jurisdiction of defendant once he is in the Department of Corrections. The State objected to the defendant's motion and argued that, since sentence had been imposed, the law required that defendant be transported to the Department of Corrections within three days.

Page 108

[84 Ill.Dec. 892] The State's Attorney said that if the defendant were needed for post-trial motions, a writ of habeas corpus ad subjiciendum could be prepared and he could be transported back. The trial court, without commenting on the possible loss of its jurisdiction, denied the motion to stay the mittimus, stating that the post-trial motion would be strictly on the record, as a matter of law, and that it would be unnecessary for the defendant to be present for the post-trial motion. The trial judge further stated that, under [129 Ill.App.3d 751] the circumstances, he believed that the appellate court would consider the fact that the motion to stay mittimus had been denied. Given these circumstances, we believe that, as in Carnes, it would be manifestly unfair to deny defendant the right to seek appellate review, on direct appeal, of his claims of error which are not of a constitutional magnitude.

Second, under the narrow terms of the revestment doctrine, litigants may revest a court which has general jurisdiction over the matter with personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. Here, in addition to the trial court's representations to defendant and defense counsel with respect to his rights and the time for filing a post-trial motion, and the lack of any...