People v. Salem
| Decision Date | 15 October 2014 |
| Docket Number | Appeal No. 3-12-0390 |
| Citation | 2014 IL App (3d) 120390 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAIL SALEM, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois.
Circuit No. 11-CF-935
The Honorable Richard C. Schoenstedt, Judge, presiding.
ORDER
¶ 1 Held: The defendant's appeal from his conviction for possession of a stolen motor vehicle was dismissed for lack of jurisdiction because the defendant failed to file his appeal within 30 days of final judgment. Although the defendant filed his notice of appeal within 30 days of the denial of his motion for a new trial, that motion was filed more than 30 days after the verdict, so was not a timely motion against the judgment.
¶ 2 The defendant, Wail Salem, appeals from his conviction of four counts of possession of open vehicle titles (625 ILCS 5/4-104(a)(2) (West 2010)).
¶ 4 In the course of executing an unrelated search warrant, law enforcement officials discovered several stolen vehicles at the defendant's home and numerous other vehicle titles. The defendant was charged by indictment with five Class 4 felony counts of unlawful possession of vehicle titles. One charge was nolle prossed, but the other four counts proceeded to trial.
¶ 5 During the trial, the State sought to admit four pieces of evidence of other crimes, to show the defendant's intent, knowledge, and absence of mistake. Specifically, the State sought to introduce: 1) the fact that a Lincoln Navigator found in the defendant's driveway was a stolen vehicle; 2) the title for the Navigator was a fraudulent title and was found with the titles at issue in this case; 3) a black BMW, also found in the defendant's driveway, was a re-tagged vehicle; and 4) a maroon BMW in the defendant's driveway had two titles, one from Indiana and one from Illinois. Defense counsel argued that the other evidence was not relevant to the charged crimes, and it was prejudicial to the defendant. The trial court found the evidence to be relevant, and admissible to show the defendant's mental state. The trial court admonished the jury with Illinois Pattern Instruction 3.14, Proof of Other Offenses or Conduct, at the conclusion of all the evidence.
¶ 6 The jury returned its verdict of guilty on December 1, 2011, and the trial court entered a judgment of conviction as to all four counts. The defendant was sentenced on February 27, 2012, to 4 ½ years' imprisonment on each count, to be served concurrently. The defendant filed his post-trial motion on March 26, 2012. The motion was heard without a timeliness objection from the State, and it was denied on April 9, 2012. The defendant filed his notice of appeal on May 9, 2012. On appeal, the defendant arguesthat the trial court abused its discretion in admitting other-conduct evidence and in admitting the defendant's prior federal conviction.
¶ 8 As an initial matter, the State argues that we lack jurisdiction. Whether this court has jurisdiction presents an issue of law subject to de novo review. People v. Marker, 233 Ill. 2d 158, 162 (2009).
¶ 9 Under Illinois Supreme Court Rule 606(b), a notice of appeal must be filed within 30 days after the entry of the final judgment or within 30 days of the order disposing of a timely motion against the judgment. The filing of the notice of appeal is jurisdictional. Ill. S. Ct. R. 606(a) (eff. Mar. 20, 2009). In a criminal case, a judgment is final when the defendant is sentenced. People v. Stanford, 2011 IL App (2d) 090420, ¶20 (citing People v. Danenberger, 364 Ill.App.3d 936, 939 (2006). Thus, since the defendant was sentenced on February 27, 2012, the defendant had until March 28, 2012, to file his notice of appeal. The defendant did not file his notice of appeal until May 9, 2012, beyond the 30-day window. The question is, then, whether he filed his notice of appeal within 30 days of an order disposing of a timely motion against the judgment. The defendant did file his notice of appeal within 30 days of the denial of his post-trial motion; the question is whether that motion was timely.
¶ 10 A defendant must file a motion for a new trial "within 30 days following the entry of a finding or the return of a verdict." 725 ILCS 5/116-1(b) (West 2010); People v. Gilmore, 356 Ill. App. 3d 1023, 1035 (2005). In this case, the verdict was returned on December 1, 2011, so the defendant's motion for a new trial filed on March 26, 2012, was not timely. The appellate court does not have the authority to excuse the filingrequirements of the supreme court rules governing appeals. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 217 (2009).
¶ 11 There is no indication that the State challenged the timeliness of the posttrial motion in the trial court, but rather responded to the substantive issues in the motion. However, waiver is of no consequence because subject matter jurisdiction cannot be waived. People v. Bailey, 2014 IL 115459.
¶ 12 The defendant acknowledges that the motion for a new trial was filed more than 30 days after the jury verdict, but argues that that the trial court had jurisdiction under the revestment doctrine. Thus, the defendant argues that his notice of appeal filed within 30 days of the denial of his motion for a new trial was timely. The defendant argues that the trial court had jurisdiction through the revestment doctrine.
¶ 13 The revestment doctrine is an exception to the rule that a trial court loses jurisdiction at the end of the 30-day window following the entry of a final judgment. Bailey, 2014 IL 115459, ¶ 8. However, revestment is a narrow exception, and only applies if both parties: (1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment. Id. at ¶ 25. While the State did not object on timeliness grounds, it did object to the motion on substantive grounds, and did not assert a position that was inconsistent with the judgment. Thus, the revestment doctrine does not apply. Since the motion for a new trial was not timely, it did not extend the 30-day window from the date of the jury verdict, and the notice of appeal was untimely.
¶ 14 Since the notice of appeal was untimely, we lack jurisdiction over the appeal.
¶ 19 I respectfully submit this court has jurisdiction to consider the merits of this appeal and would reverse defendant's convictions for the reasons set forth below.
¶ 21 In this case, I agree with the majority that the defense motion did not comply with the procedural deadline of section 116-1(b) of the Code of Criminal Procedure of 1963 (the Code) since it was filed more than 30 days after the December 1, 2011, verdict. In my opinion, the procedural deadline set out in section 116-1(b) was waived by both the court and counsel. In addition, I submit the procedural timeline defined in section 116-1(b) does not control whether the same motion was timely filed with respect to the jurisdictional considerations set out in rule 606(b). In other words, a motion will be considered procedurally untimely for purposes of section 116-1(b), when filed more than 30 days after the date of verdict. However, the same motion filed more than 30 days after the date of verdict, may still be considered timely for purposes of jurisdiction according to rule 606(b). This is true because rule 606(b) does not cross-reference section 116-1(b) for purposes of timeliness.
¶ 22 The case law supports my view that the trial court did not lack jurisdiction to exercise its discretion to consider the posttrial motion based on a procedural timeline that the parties waived in the case at bar. A trial court always has the discretion to consider the merits of an untimely posttrial motion with respect to section 116-1(b), as long as the motion was filed within 30 days of final judgment and before the court automatically loses jurisdiction by the operation of rule 606(b). See People v. Gilmore, 356 Ill. App. 3d1023, 1036 (2005); Talach, 114 Ill. App. 3d at 818. This is exactly what happened in the case at bar.
¶ 23 In this case, the trial court imposed defendant's sentence, or final judgment, on February 27, 2012. The court immediately instructed defendant to file a written posttrial motion within the next 30 days. The State did not object to this procedure. Nonetheless, the trial court clearly did not lose jurisdiction to accept the motion on March 26, 2012, and then schedule a hearing on the merits for April 9, 2012. Consequently, I conclude defendant's notice of appeal, filed within 30 days of the court's ruling on the merits, gives rise to our jurisdiction to review the court's decision.
¶ 24 The decision in People v. Bailey, 2014 IL 115459, can be distinguished from the case at bar. In Bailey, the defense filed a posttrial motion more than three years after the trial court lost subject matter jurisdiction. Unlike the situation in Bailey, in this case, the court had jurisdiction on February 27, 2012, and retained jurisdiction to accept the anticipated motion for new trial, which the defense filed on March 26, 2012. I disagree the trial court lost jurisdiction to consider this particular pending posttrial motion on April 9, 2012. Since jurisdiction did not lapse, I conclude revestment does not apply.
¶ 25 The chronology of events in this case is somewhat atypical. Yet, all of the parties seemed to be very comfortable with the court's decision to provide an...
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