Wednesday, April 27, 2016

Successive Post-Trial Motion Does Not Toll the Time for Appeal under Supreme Court Rule 606(b)

By Nate Nieman
Nieman Law Group

The Illinois Appellate Court, Third District, recently dismissed a criminal appeal for lack of appellate jurisdiction after the defendant failed to file a notice of appeal within 30 days after the trial court denied a timely post-trial motion, but instead, filed a successive post-trial motion directed against the judgment. As discussed below, the reviewing court held that the successive post-trial motion did not toll the timeframe to file the notice of appeal.
In People v. Kibbons, 2016 IL App (3d) 150090, Williams Kibbons was charged with two counts of aggravated DUI and one count of leaving the scene of an accident involving personal injury or death. Kibbons pled guilty to one count of aggravated DUI in exchange for the State dismissing the other two counts and agreeing to a sentencing cap of eight years in prison. Kibbons was eventually sentenced to eight years in prison and was admonished of his appeal rights in accordance with  Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) (“…prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion.”).
Defense counsel filed a motion to reconsider sentence within 30 days of sentencing. That motion was denied on October 18, 2013. Kibbons then retained new counsel, who filed a motion to withdraw the guilty plea on November 15, 2013, alleging that the State’s Attorney was conflicted because he had represented the defendant on a DUI case in 1997. The court denied the motion on April 24, 2014, but gave the defendant time for filing additional pleadings regarding the alleged conflict.
The defendant filed a motion to withdraw the guilty plea on May 22, 2014, alleging “actual prejudice.” The motion was once again amended on November 13, 2014 and ultimately denied on January 16, 2015. Kibbons appealed the denial of his motion to withdraw the guilty plea and his sentence after filing a notice of appeal on February 6, 2015.
The Third District Appellate Court dismissed Kibbons’ appeal for lack of jurisdiction. That State argued on appeal that the notice of appeal was untimely when it was not filed within 30 days of the trial court’s denial of Kibbons’ motion to reconsider sentence. To resolve the issue, the court looked to Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013), which provides that “[e]xcept as provided in Rule 604(d), the 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 or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.”

It was undisputed that the notice of appeal was not filed within 30 days of sentencing. Kibbons filed a timely motion to reconsider sentence, but this motion was improper because under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), a defendant who enters into a partially negotiated plea agreement must first move to withdraw his guilty plea before asking the court to reconsider sentence. Notwithstanding that Kibbons’ motion to reconsider sentence was not properly before the court, the Kibbons court still considered the motion to reconsider sentence a timely “motion directed against the judgment” for purposes of tolling the time for appeal under Rule 606(b).
Nonetheless, the Kibbons court did not consider the appeal perfected under 606(b) because the defendant filed a motion to withdraw guilty plea (which he should have done initially, under Rule 604(d)) within 30 days of the denial of the motion to reconsider sentence instead of a notice of appeal. That second motion post-trial motion, however, did not toll the timeframe for defendant to file a notice of appeal.

Thus, the notice of appeal that Kibbons filed on February 6, 2015 was untimely and the appellate court did not have jurisdiction to hear Kibbons’ appeal.
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