People v. Mennenga

• Decision Date: 22 March 1990
• Docket Number: No. 4-89-0563,4-89-0563
• Citation: 195 Ill.App.3d 204,551 N.E.2d 1386
• Parties: , 141 Ill.Dec. 858 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Phillip D. MENNENGA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1386

551 N.E.2d 1386

195 Ill.App.3d 204, 141 Ill.Dec. 858

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Phillip D. MENNENGA, Defendant-Appellee.

No. 4-89-0563.

Appellate Court of Illinois Fourth District.

March 22, 1990.

Rehearing Denied April 19, 1990.

Thomas J. Difanis, State's Atty., Urbana, Kenneth R. Boyle, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Timothy J. Londrigan, Staff Atty., for plaintiff-appellant.

Glenn A. Stanko, Reno, O'Byrne & Kepley, Champaign, for defendant-appellee.

Justice LUND delivered the opinion of the court:

The circuit court of Champaign County dismissed count I of an information charging Phillip D. Mennenga, defendant, with aggravated criminal sexual assault. (Ill.Rev.Stat.1987, ch. 38, par. 12-14.) We must first determine whether there is appellate jurisdiction.

An information was filed on March 17, 1989, charging defendant in count I with aggravated criminal sexual assault, and in count II with aggravated criminal sexual abuse (Ill.Rev.Stat.1987, ch. 38, par. 12-16). At a March 27, 1989, court proceeding, the preliminary hearing was set for April 11, 1989. On April 6, 1989, the State took the case before a grand jury, which returned a no-true bill as to the assault charge and a true bill as to the abuse charge. On April 11, 1989, the defendant appeared for the preliminary hearing, was not given one, and was arraigned on the indictment, count II. On April 26, 1989, defendant received notice of a preliminary hearing on count I, set for May 1, 1989. Defendant appeared on May 1, 1989, and unsuccessfully objected to the preliminary hearing. Probable cause was found as to count I. The same witnesses testified at the preliminary hearing that testified at the grand jury hearing.

On May 16, 1989, a motion to dismiss information and indictment was filed, setting forth the above-stated procedures. On July 7, 1989, a hearing was held on the motion to dismiss. The trial court made an oral pronouncement of its dismissal of count I. The docket entry of July 7 states:

"People present by Assistant State's Attorney Elizabeth Dobson. Defendant present with his Attorney Glenn Stanko. Arguments heard on defendant's motion to dismiss the information and indictment. The motion is allowed as to Count I of the information. Count I of the information is dismissed. The motion is denied as to Count II of the indictment."

The State filed a notice of appeal on July 12, 1989.

On September 14, 1989, a written order dismissing count I was signed by the judge, and was filed. Counsel for both the State and the defense signed the written order, approving it as to form. No notice of appeal was filed after the September 14 filing. The relevant part of the September 14 order provided:

"The motion to dismiss information and indictment should be granted with respect to the information (Count I) based on the allegations contained in paragraphs 1-12 of Count I of the motion, and in particular, based on the impropriety of filing an information and holding a preliminary hearing on a charge when the grand jury had earlier returned a no true bill on that identical charge."

I

The State's right to appeal to the appellate court is provided by Supreme Court Rule 606(b). "[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from * * *." (107 Ill.2d R. 606(b).) Failure to file the notice of appeal is jurisdictional. See Danaher v. Knightsbridge Co. (1978), 56 Ill.App.3d 977, 979, 14 Ill.Dec. 583, 586-87, 372 N.E.2d 862, 865-66.

Defendant contends that the order of September 14 was the entry of the judgment and the prior filing of the notice of appeal was not sufficient to confer appellate jurisdiction. The State contends the oral pronouncement on July 7 was the entry and, if not, the docket entry was the entry.

Supreme Court Rule 271 provides as follows:

"Orders on Motions

When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise." (Emphasis in original.) (107 Ill.2d R. 271.)

Rule 272 states:

"When Judgment is Entered

If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record." (Emphasis in original.) 107 Ill.2d R. 272.

While both rules come under article II of rules on civil proceedings in the trial court (107 Ill.2d, art. II, Rules 101 through 300), Rule 271 has been held applicable to criminal cases (see People v. Jones (1984), 104 Ill.2d 268, 276, 84 Ill.Dec. 495, 498, 472 N.E.2d 455, 458), and a rule similar to Rule 272 is applicable in criminal cases. (See People v. Boston (1975), 27 Ill.App.3d 246, 248, 327 N.E.2d 40, 42.) The applicability of Rule 271 in Jones involved an order suppressing evidence and the time of its entry. We note that a motion relating to suppression of evidence requires certain findings. (Ill.Rev.Stat.1987, ch. 38, par. 114-12(e).) The Jones decision cited Rule 271, and stated a decision on a motion to suppress was not a final judgment and a written order was necessary. (Jones, 104 Ill.2d at 275, 84 Ill.Dec. at 498, 472 N.E.2d at 458.) The opinion went on to say:

"The notice of appeal filed August 13, 1981, was premature and did not confer jurisdiction on the appellate court. Rule 271 (87 Ill.2d R. 271) is applicable to rulings on motions and requires that a written order be presented to the court for signature. Also, the conversation between the court and counsel when the oral ruling was made clearly indicates that a signed order suppressing the evidence was contemplated. The judge's oral pronouncement on July 24, 1981, was not an order from which an appeal could be taken. (See People ex rel. Person v. Miller (1977), 56 Ill.App.3d 450, 459-60 [13 Ill.Dec. 920, 371 N.E.2d 1012].) Our appellate court has, on several occasions, held that a notice of appeal filed after an oral ruling, but before the filing of a written order, is premature and confers no jurisdiction on the appellate court. People v. Eddington (1978), 64 Ill.App.3d 650, 654 [21 Ill.Dec. 508, 381 N.E.2d 835]; People v. Boston (1975), 27 Ill.App.3d 246, 248 ; People v. Deaton (1974), 16 Ill.App.3d 748, 749 ." (Jones, 104 Ill.2d at 276, 84 Ill.Dec. at 498-99, 472 N.E.2d at 458-59.)

An argument can be made that all of this is dicta because the State had filed a second notice of appeal within 30 days after the written order was entered. The subject of appellate jurisdiction arose when the supreme court was ruling on a speedy-trial issue.

In Boston, cited in the above statement from Jones, the notice of appeal was filed after an oral pronouncement, discharging the defendant because of the speedy-trial provision, but before the written order was entered. The Boston court stated:

"It has been held in several civil cases that if a notice of appeal is filed after the trial court has stated what its decision will be but before a written order is filed, the notice of appeal is not timely and the appellate court has no jurisdiction. (Grissom v. Buckley-Loda Community Unit School District No. 8, 11 Ill.App.3d 55, 296 N.E.2d 624; Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc., 2 Ill.App.3d 524, 275 N.E.2d 654; Belinski v. City National Bank, 133 Ill.App.2d 800, 270 N.E.2d 524; Green v. Green, 21 Ill.App.3d 396, 315 N.E.2d 324; Loveless v. Loveless, 3 Ill.App.3d 967, 279 N.E.2d 531.) We realize that some of the cases cited above rely partially upon Supreme Court Rule 272 (Ill.Rev.Stat., ch. 110A, par. 272), a rule applicable only to civil cases. We find, however, that a similar rule is applicable in criminal cases as well." (Boston, 27 Ill.App.3d at 248, 327 N.E.2d at 41-42.)

The trial court in Boston specifically stated that a written order would be prepared, specifically triggering the delay in entry if Rule 272, or a common law rule similar to Rule 272, applies.

Rule 271 would appear to apply to court orders that follow decisions on motions, other than in course of trial. A judgment based upon a verdict or a decision after a bench trial is not a result of a motion. A ruling on a speedy-trial issue or similar to the one now before the court can permanently terminate prosecution on a charge, but results from a hearing on a motion. The motion with which we are presently concerned was not made during trial.

Contrary to the State's argument, we do not find People v. Allen (1978), 71 Ill.2d 378, 16 Ill.Dec. 941, 375 N.E.2d 1283, applicable. In that case, the court held that in a criminal case the pronouncement of the sentence is the judicial act which comprises the judgment of the court and the notice of appeal within 30 days of the pronouncement vested appellate jurisdiction, even though a written judgement was filed at a later date. We note portions of Rule 606(b) cited in Allen (58 Ill.2d R. 606(b)) have been deleted from the present Rule 606 (107 Ill.2d R. 606). Our court, in requiring a written order in a case involving a motion to suppress hearing, limited Allen to its facts. People v. Eddington (1978), 64 Ill.App.3d 650, 654, 21 Ill.Dec. 508, 511, 381 N.E.2d 835, 838.

We are aware of the general administration order on recordkeeping in the circuit court (Ill.Ann.Stat., ch. 25, par. 16(D)(6), at 30 (Smith-Hurd Supp.1989)). The administrative order, effective January 1, 1971, provides in part:

"The action of the judge shall be reflected in a signed order or a minute order. A minute...