People v. Marker, 2-06-1071.

• Decision Date: 01 May 2008
• Docket Number: No. 2-06-1071.,2-06-1071.
• Citation: 382 Ill.App.3d 464,888 N.E.2d 590
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Brent E. MARKER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

888 N.E.2d 590

382 Ill.App.3d 464

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Brent E. MARKER, Defendant-Appellee.

No. 2-06-1071.

Appellate Court of Illinois, Second District.

May 1, 2008.

Eric C. Weis, Kendall County State's Attorney, Yorkville, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Larry Wechter, Law Office of Larry Wechter, Geneva, for Brent E. Marker.

Justice BYRNE delivered the opinion of the court.

Following a traffic stop by an Oswego police officer, defendant was arrested and charged with driving under the influence of drugs (625 ILCS 5/11-501(a)(6) (West 2006)) and driving under the combined influence of drugs and alcohol (625 ILCS 5/11-501(a)(5) (West 2006)) (DUI) in case number 06-DT-57. As a result of the same arrest, defendant was also charged with unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2006)) and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2006)) in case number 06-CF-69. Defendant filed a motion to quash his arrest and suppress evidence, and the trial court granted the motion on August 11, 2006. On September 7, 2006, the State moved to reconsider the trial court's ruling. The trial court denied the motion to reconsider on September 28, 2006, and on October 23, 2006, the State filed a certificate of impairment (see People v. Young, 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501 (1980)) and a notice of appeal. We conclude that the State's notice of appeal was not timely and we therefore dismiss the State's appeal.

On July 11, 2007, defendant filed a motion to dismiss this appeal for lack of jurisdiction. The State responded to the motion on July 19, 2007. At that time, the State's reply brief was not yet due and no panel of this court had been assigned to decide the appeal. A panel of this court hearing motions denied the motion to dismiss on August 1, 2007, and shortly thereafter the appeal was assigned to a different panel of this court for disposition. Defendant later filed a "Motion to Submit Jurisdictional Motion With Issues Addressed in the Briefs and Arguments." Defendant asks us to again consider our jurisdiction, despite the earlier denial of his motion to dismiss. The motion is allowed. The motion panel's ruling does not foreclose us from revisiting the question of jurisdiction. In re Marriage of Waddick, 373 Ill.App.3d 703, 705, 312 Ill.Dec. 98, 869 N.E.2d 1089 (2007). Indeed, "[a]lthough the motion panel denied the motion to dismiss, this panel has an independent duty to determine whether we have jurisdiction and to dismiss an appeal if we do not." Waddick, 373 Ill.App.3d at 705, 312 Ill.Dec. 98, 869 N.E.2d 1089.

In his motion to dismiss, defendant argues, inter alia, that the State had only 30 days to file its notice of appeal after the trial court granted the motion to quash and suppress on August 11, 2006, and that its motion to reconsider the trial court's ruling did not extend the period for filing the notice of appeal. Defendant forthrightly acknowledges that his argument is contrary to a number of decisions from other districts of the appellate court, but he urges us to take a fresh look at the issue. Defendant directs our attention to six decisions: People v. Van Matre, 164 Ill.App.3d 201, 115 Ill.Dec. 357, 517 N.E.2d 768 (1988), People v. Rimmer, 132 Ill. App.3d 107, 87 Ill.Dec. 286, 476 N.E.2d 1278 (1985), People v. McBride, 114 Ill. App.3d 75, 69 Ill.Dec. 833, 448 N.E.2d 551 (1983), People v. Clark, 80 Ill.App.3d 46, 35 Ill.Dec. 427, 399 N.E.2d 261 (1979), People v. Stokes, 49 Ill.App.3d 296, 7 Ill.Dec. 139, 364 N.E.2d 300 (1977), and People v. Robins, 33 Ill.App.3d 634, 338 N.E.2d 222 (1975).

Two of the cases defendant cited— McBride and Clark— have little or no bearing on the issue before us. The question in Clark was whether the defendant's notice of appeal was timely where it was filed within 30 days following entry of an order: (1) denying the defendant's motion to reconsider the denial of his motion to dismiss and (2) reinstating a previously vacated guilty plea and sentence. McBride stands for the proposition that the State may move for reconsideration of a suppression order prior to filing a notice of appeal. McBride, 114 Ill.App.3d at 80, 69 Ill.Dec. 833, 448 N.E.2d 551. However, appellate jurisdiction was not at issue in McBride, and the court did not address the question of whether a motion to reconsider would extend the time for bringing an appeal. A third decision, Robins, does not address the precise jurisdictional issue in this case: whether a motion by the State to reconsider a suppression ruling tolls the time for filing a notice of appeal. However, because cases addressing that issue have relied (either directly or indirectly) on Robins, it is necessary to consider it here.

Moreover, we are aware of two cases not cited by defendant—People v. Smith, 232 Ill.App.3d 121, 173 Ill.Dec. 165, 596 N.E.2d 789 (1992), and People v. Burks, 355 Ill.App.3d 750, 291 Ill.Dec. 814, 824 N.E.2d 1064 (2004)—that also stand for the proposition that a motion to reconsider an order suppressing evidence tolls the time for taking an appeal from that order. Thus, we have six decisions to examine, five of which involve precisely the same issue now before us. We begin with Stokes. In that case (as in the present one), the trial court granted the defendant's motion to quash and suppress, and the State filed a notice of appeal within 30 days of the denial of its motion to reconsider, but more than 30 days after the ruling granting the motion to quash and suppress. The Stokes court noted that the trial court retains the power to modify or vacate its judgment for a period of 30 days and that the State may appeal any order that has the substantive effect of suppressing evidence. Stokes, 49 Ill.App.3d at 298, 7 Ill.Dec. 139, 364 N.E.2d 300. Ultimately, however, Stokes relied on Robins in holding that the motion to reconsider extended the time for the State to file its notice of appeal. Unlike Stokes, Robins did not involve review of a suppression ruling. In Robins, the State appealed from an order dismissing a criminal complaint because the applicable statute of limitations had expired. Stokes relied on the following language from Robins:

"Public policy clearly favors correction of errors at the trial level. We have previously held that a motion to reconsider is an appropriate method to be utilized in directing the attention of the trial judge to [a] claim of error. (Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill.App.2d 112, 239 N.E.2d 492.) The time for appeal commenced with the denial of that motion." Robins, 33 Ill.App.3d at 636, 338 N.E.2d 222.

Defendant correctly points out that Robins based its holding on a decision in a civil appeal — Childress. Civil and criminal appeals are governed by different rules, although there is substantial overlap (see 210 Ill.2d R. 612). When Childress was decided, Supreme Court Rule 303(a) (36 Ill.2d R. 303(a)), which applies to civil appeals, provided that, if a party filed a timely posttrial motion, the notice of appeal was due within 30 days after entry of the order disposing of the motion. However, the rule governing the perfection of appeals in criminal proceedings tolled the time for filing the notice of appeal only "if the appellant applies for probation or files a motion for a new trial or in arrest of judgment." 36 Ill.2d R. 606(b). Thus, Childress provides no analytical support for Robins.

We need not decide, however, whether Robins was correctly decided. Even if Rule 303(a)'s tolling principle applied in criminal cases, Robins, like Childress, nevertheless involved a final judgment or order. Stokes, however, involved an interlocutory order—one suppressing evidence. See People v. Leach, 245 Ill. App.3d 644, 653, 183 Ill.Dec. 898, 612 N.E.2d 825 (1993) ("A suppression order does not finally adjudicate a criminal prosecution, but only bars certain evidence from the impending trial"). Even in civil cases, "a motion attacking an interlocutory order will not toll the running of the 30-day deadline for the filing of the notice of appeal." Craine v. Bill Kay's Downers Grove Nissan, 354 Ill.App.3d 1023, 1026, 291 Ill.Dec. 66, 822 N.E.2d 941 (2005). Thus there is no valid precedent—civil or criminal—for the tolling rule announced in Stokes.

All the same, the dissent endorses the result in Stokes, asserting that "[i]t is the reasoning of the case, the basis in public policy, that gives the tolling rule force, not solely its provenance." (Emphasis added.) Op. 321 Ill.Dec. at 85, 888 N.E.2d at 604. Thus, the dissent does not hold Robins and Stokes up as models of legal analysis. What redeems these decisions, in the dissent's eyes, is the public policy they express. The dissent's thesis is straightforward: there is support in the case law for the proposition that public policy favors correction of errors at the trial level, and tolling the time for filing an appeal advances that public policy objective.

If public policy is seen as the driving force in fashioning principles of appellate jurisdiction, things seem to fall into place—at least initially. Childress's tolling rule in civil cases conforms to the applicable supreme court rule and to the public policy favoring correction of errors in the trial court. The same public policy supports Robins's application of the tolling rule to final judgments in criminal cases even though, at that time, no supreme court rule provided for such a result. The dissent's reasoning runs less smoothly, however, with respect to interlocutory orders. In the dissent's view, public policy supports extending the tolling rule to interlocutory appeals in criminal cases, even if no supreme court rule so provides and even though the rule applicable...