By Stephen Soltanzadeh
Associate, Ancel Glink

The First District Appellate Court recently held that a motion for a new trial did not toll the 30-day period for filing a notice of appeal where the record was inconclusive as to the motion’s filing date, even where the prosecutor verbally agreed to “waive” the 30-day requirement for posttrial motions and consented to the defendant filing the motion later than 30 days after judgment.

In People v. Hall, 2017 IL App (1st) 150918, a jury determined that the defendant was a sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. (2014), and the trial court entered an order committing him to the care of the Department of Human Services. The trial court entered judgment on May 14, 2014, after which the parties discussed scheduling posttrial motions with the court. In that discussion, the Assistant State’s Attorney stated that she would “waive the 30 days,” meaning that she would “not object if it’s after the 30 days if it’s all right with the Court.” Defense counsel followed up by asking the court for “June 20,” and the court stated that it would “set that down for any post-trial motions.” The trial court then issued a written order stating that judgment was entered and that the defendant would be transported to court on June 20, 2014, “for further status on this matter.”

At the June 20, 2014 hearing, defense counsel requested leave to file a motion for new trial. In response, the trial court set a date for arguments on posttrial motions. Transcripts from subsequent hearings indicated that a new trial motion was ultimately filed, but it was not clear from the record when the motion was filed, and no file-stamped copy of the motion was included in the record. The court ultimately denied the motion on February 6, 2015, and defense counsel filed a notice of appeal on March 6, 2015.

The People moved to dismiss the appeal, arguing that the appellate court did not have jurisdiction because the new trial motion was not filed within 30 days of the entry of judgment. The defendant responded that the court extended the deadline after the People agreed to the extension, and that the People’s position that a defendant cannot rely on the word of a prosecutor ran counter to the Illinois Rules of Professional Responsibility, which give prosecutors special responsibilities.

The appellate court dismissed the appeal for lack of jurisdiction. It held that the record did not indicate when the posttrial motion was filed, and thus the defendant failed to demonstrate that it was timely, leaving the court without jurisdiction to hear the appeal.

In so holding, the court initially explained that it does not have jurisdiction over an appeal unless the notice of appeal was filed within 30 days of the entry of judgment, or, if a timely posttrial motion was filed, within 30 days of disposition of the motion. It further explained that a posttrial motion must be filed within 30 days of the entry of judgment unless that time is extended by the court. Hall, 2017 IL App (1st) 150918, ¶ 13 (citing 735 ILCS 5/2-1202(c), Ill. Sup. Ct. R. 303(a)(1)).

Turning to the case before it, the appellate court acknowledged that the record was “uncertain” as to whether the trial court had granted the defendant an extension of time to June 20, 2014 to file a motion for a new trial. Hall, 2017 IL App (1st) 150918, ¶ 14. But the appellate court held that even if the trial court had granted an extension, the appellate court lacked jurisdiction because the record did not indicate when the motion for a new trial was filed. Explaining that, as appellant, the defendant bore the burden of preparing a complete record, the appellate court construed the lack of a file-stamped copy of the motion against the defendant and held that he failed to establish that the notice of appeal was timely, leaving the court without jurisdiction over the appeal.

“For the sake of completeness,” the appellate court also noted that the revestment doctrine did not apply because the defendant could not meet all three factors of the revestment doctrine test: that 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 and support the setting aside of at least part of that judgment.’” Hall, 2017 IL App (1st) 150918, ¶ 17 (quoting People v. Bailey, 2014 IL 115459, ¶ 25). The court concluded that although the defendant could meet the first two requirements, he could not meet the third because the People actively opposed the motion for new trial and defended the underlying judgment. Accordingly, the appellate court held that the conduct of the Assistant State’s Attorney did not revest the trial court with jurisdiction to hear the defendant’s posttrial motion.