                                  Illinois Official Reports

                                          Appellate Court



                              People v. Shaw, 2014 IL App (2d) 121105



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KRISTEN SHAW, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-12-1105



Filed                        March 26, 2014



Held                         Although defendant was admonished that she had 30 days after her
(Note: This syllabus         sentence to file a notice of appeal or a motion to reconsider her
constitutes no part of the   sentence or her right to appeal would be lost, she still filed a motion to
opinion of the court but     reconsider her sentence 34 days after she was sentenced, and at the
has been prepared by the     hearing on the motion, it was denied by the trial court following the
Reporter of Decisions        prosecutor’s statement that the State had no argument, and when
for the convenience of       defendant appealed, the appellate court held that it only had
the reader.)                 jurisdiction to vacate the denial of the motion and order the motion
                             dismissed, since the motion was untimely and the revestment doctrine
                             did not apply in the absence of any contest of the motion by the State
                             that would revest the trial court with jurisdiction; furthermore,
                             defendant’s notice of appeal was late because the motion to reconsider
                             did not extend the time to appeal.




Decision Under               Appeal from the Circuit Court of De Kalb County, No. 11-CF-417; the
Review                       Hon. Robbin J. Stuckert, Judge, presiding.



Judgment                     Order vacated; motion dismissed.
     Counsel on                Thomas A. Lilien and Jessica Wynne Arizo, both of State Appellate
     Appeal                    Defender’s Office, of Elgin, for appellant.

                               Richard H. Schmack, State’s Attorney, of Sycamore (Lawrence M.
                               Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
                               Prosecutor’s Office, of counsel), for the People.




     Panel                     JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                               Justices Jorgensen and Birkett concurred in the judgment and opinion.




                                                 OPINION

¶1          After a bench trial, defendant, Kristen Shaw, was convicted of aggravated domestic battery
       (720 ILCS 5/12-3.3(a-5) (West 2010)). On July 20, 2012, she was sentenced to three years’
       probation. Pursuant to Illinois Supreme Court Rule 605(a)(3) (eff. Oct. 1, 2001), the trial court
       admonished her that she had 30 days to file a notice of appeal or a motion to reconsider the
       sentence; “[i]f that notice of appeal or motion to reconsider is not filed within 30 days of
       today’s date, you will lose the right to appeal.” Defendant filed a motion to reconsider, but not
       until August 23, 2012, 34 days after sentencing. On October 4, 2012, at the hearing on the
       motion, the assistant State’s Attorney said simply, “I don’t have any argument.” The trial court
       denied the motion on the merits. That same day, defendant filed a notice of appeal. On appeal,
       defendant argues that she was not proven guilty beyond a reasonable doubt. However, under
       the supreme court’s recent decision in People v. Bailey, 2014 IL 115459, we hold that we have
       jurisdiction only to vacate the trial court’s denial of defendant’s motion and to order the motion
       dismissed.
¶2          As always, “[o]ur first task is to determine whether we have jurisdiction to consider this
       appeal.” Allianz Insurance Co. v. Guidant Corp., 355 Ill. App. 3d 721, 728 (2005). In her
       jurisdictional statement, defendant acknowledges that she did not file a notice of appeal or a
       motion to reconsider within 30 days after sentencing, and she appears to acknowledge that
       thus, ordinarily, we would lack jurisdiction. See Ill. S. Ct. R. 606(b) (eff. Mar. 20, 2009);
       People v. Stanford, 2011 IL App (2d) 090420, ¶ 19. However, she asserts that “the trial court
       had jurisdiction to consider the motion under the doctrine of revestment where the parties
       actively participated in proceedings and where the State did not object to the [un]timeliness of
       the motion and participated in the motion hearing.” She concludes that, “[b]ecause the notice
       of appeal was filed within 30 days of the denial of the motion to reconsider sentence,
       jurisdiction should be found to lie in this Court.”
¶3          “[A]n appeal is perfected by the timely filing of a notice of appeal, and it is this step which
       vests the appellate court with jurisdiction.” In re J.T., 221 Ill. 2d 338, 346 (2006). Under
       Illinois Supreme Court Rule 606(b) (eff. Mar. 20, 2009), a notice of appeal is timely if it is filed

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     “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.” The final judgment in a criminal case is the sentence. People v. Caballero, 102 Ill. 2d
     23, 51 (1984). “To be timely, a motion directed against the judgment of sentence must be filed
     within 30 days of entry of the judgment.” Stanford, 2011 IL App (2d) 090420, ¶ 19. Generally,
     if no motion directed against the judgment is filed within that time, the trial court loses
     jurisdiction. See People v. Flowers, 208 Ill. 2d 291, 303 (2003). That is, the trial court lacks
     jurisdiction of a late motion directed against the judgment, and, because the motion is late, it
     does not extend the time to appeal.
¶4        The revestment doctrine provides an exception. As the supreme court originally described
     it, that doctrine provides that the trial court is revested with jurisdiction if the parties “actively
     participate without objection in proceedings which are inconsistent with the merits of the prior
     judgment.” People v. Kaeding, 98 Ill. 2d 237, 241 (1983). Further, if the trial court is revested
     with jurisdiction of a late motion directed against the judgment, the motion extends the time to
     appeal, such that a notice of appeal filed within 30 days after the ruling on the motion will vest
     the appellate court with jurisdiction. See People v. MacArthur, 313 Ill. App. 3d 864, 868
     (2000).
¶5        Thus, here, defendant rightly asserts that, if the trial court was revested with jurisdiction of
     her late motion to reconsider her sentence, we have jurisdiction of her appeal. However, she
     wrongly asserts that the trial court was revested with jurisdiction of her motion.
¶6        Until recently, this court consistently held that revestment occurred if the State contested
     the merits of a late motion without objecting to the motion’s lateness. For example, in People
     v. Zoph, 381 Ill. App. 3d 435 (2008), the defendant filed a motion to reconsider his sentence 32
     days after sentencing. Id. at 450. At the hearing, the State “did not object to the untimeliness of
     the motion”; instead, it “provided express argument directed against the merits of defendant’s
     contentions in his motion.” Id. We held that the State thus had “actively participated without
     objection in a proceeding that was inconsistent with the merits of the prior judgment, thereby
     revesting the trial court with jurisdiction.” Id. Further, “defendant’s notice of appeal, filed
     within 30 days of the ruling on his motion to reconsider, vests this court with jurisdiction over
     defendant’s appeal.” Id.
¶7        Here, it is questionable whether Zoph would apply, even if Zoph were still good law.
     Although the State did not object to the untimeliness of defendant’s motion, it also did not
     provide “express argument directed against the merits of defendant’s contentions” (id.). Thus,
     it is questionable whether the State “actively participate[d]” in the proceedings (Kaeding, 98
     Ill. 2d at 241). In any event, though, Zoph is no longer good law.
¶8        In People v. Bailey, 2012 IL App (2d) 110209 (Bailey I), this court took a different view of
     the revestment doctrine. There, the defendant filed a motion to vacate his guilty plea and his
     sentence more than three years after sentencing. Id. ¶ 4. The State “did not challenge the
     timeliness of defendant’s motion,” instead contesting its merits. Id. ¶ 5. We held that cases
     such as Zoph had “strayed from application of the revestment doctrine as exemplified by our
     supreme court.” Id. ¶ 33. The State’s attack on the merits of a late motion directed against the
     judgment–and thus its defense of the merits of the judgment itself–is not “inconsistent with the
     merits of the prior judgment” (Kaeding, 98 Ill. 2d at 241). See Bailey I, 2012 IL App (2d)
     110209, ¶ 33. “In order to be inconsistent with a prior judgment, proceedings must involve the
     parties’ agreement that the prior judgment is somehow unjust or improper.” Id. Having taken
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       that view, we noted that, although the State did not object to the untimeliness of the
       defendant’s motion, it did not agree with the motion’s merits. Thus, we concluded that
       revestment did not occur. Id.
¶9          We then dismissed the defendant’s appeal for lack of jurisdiction. Having quoted Rule
       606(b) (id. ¶ 9), we held that, because the defendant’s motion was late, and because revestment
       did not occur, “defendant’s notice of appeal was untimely and did not confer jurisdiction on
       this court” (id. ¶ 34). “Accordingly, we must dismiss the appeal.” Id.
¶ 10        On further appeal, the supreme court held that we “correctly concluded that revestment did
       not occur.” Bailey, 2014 IL 115459, ¶ 1 (Bailey II). The court confirmed that, “for the
       revestment doctrine to apply, both parties must: (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.” (Emphases in original.) Id. ¶ 25. The court then held that,
       because “both parties did not assert positions that were inconsistent with the merits of the prior
       judgment, the criteria for application of the revestment doctrine were not met. Consequently,
       the trial court was not revested with jurisdiction to hear the merits of defendant’s motion and
       should, instead, have dismissed the motion for lack of jurisdiction.” Id. ¶ 27.
¶ 11        Here, as noted, it is questionable whether the State actively participated in the proceedings.
       In any event, although it did not object to the untimeliness of defendant’s motion, it clearly did
       not “support the setting aside of at least part of that judgment” (id. ¶ 25). Thus, revestment did
       not occur.
¶ 12        Per our decision in Bailey I, we would dismiss defendant’s appeal. We would hold that,
       because defendant’s motion was late, and because revestment did not occur, the motion did not
       extend the time to appeal. We thus would conclude that defendant’s notice of appeal was late
       too and did not confer us with jurisdiction.
¶ 13        However, the supreme court’s decision in Bailey II precludes us from doing so. Although
       the court agreed with our conclusion on revestment, it rejected our assessment of our
       jurisdiction. It stated as follows:
                “The appellate court concluded that it lacked appellate jurisdiction and dismissed the
                appeal on jurisdictional grounds because the trial court did not have jurisdiction to
                consider the merits of defendant’s motion. What the appellate court failed to recognize
                is that dismissing an appeal effectively leaves the lower court’s ruling on the merits
                undisturbed and intact. Here, that is not the appropriate outcome. Because the trial
                court lacked jurisdiction, its ruling on the merits of the motion was void. [Citation.] Its
                judgment should have been vacated and defendant’s motion dismissed.” Id. ¶ 28.
       It further explained:
                    “Although it is true that an appellate court has no authority to address the
                substantive merits of a judgment entered by a trial court without jurisdiction [citations],
                that does not mean that the appellate court has no jurisdiction at all. If that were the
                case, the appellate court would have no means of exercising the authority conferred on
                it by law to review, recognize, and correct any action that exceeded the trial court’s
                jurisdiction. Illinois courts have held that a trial court’s lack of jurisdiction is not a
                complete bar to the exercise of jurisdiction by the appellate court. Rather, in those
                cases, the appellate court is limited to considering the issue of jurisdiction below.

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               [Citations.] Accordingly, the appellate court in this case did not need to dismiss the
               appeal. After concluding that the trial court lacked jurisdiction to address the merits of
               defendant’s motion to vacate, it should have vacated the trial court’s judgment and
               ordered that defendant’s motion be dismissed.” Id. ¶ 29.
¶ 14       Here, of course, we follow the supreme court’s mandate, vacating the trial court’s denial of
       defendant’s motion and ordering the motion dismissed. However, we note that we do so in the
       absence of a notice of appeal that was timely under Rule 606(b). Indeed, it was that absence
       that was the crux of our dismissal in Bailey I: because the trial court lacked jurisdiction of the
       defendant’s motion, the motion did not extend the time to appeal and thus, under Rule 606(b),
       the defendant’s notice of appeal was late. In Bailey II, the supreme court did not hold that the
       basis for our jurisdiction was that the defendant’s notice of appeal was timely under that rule.
       Any such holding would seem unsustainable; clearly, the defendant did not file his notice of
       appeal within 30 days after either the final judgment of sentence or the ruling on a timely (or
       revesting) motion directed against that judgment. Thus, instead, the court held that the basis for
       our jurisdiction was that the trial court’s ruling on the motion was void, granting us the
       “limited” jurisdiction to vacate that ruling. Id. Although ordinarily our jurisdiction requires
       “the timely filing of a notice of appeal” (J.T., 221 Ill. 2d at 346), this “limited” jurisdiction does
       not.
¶ 15       In light of Bailey II, because the trial court was not revested with jurisdiction of
       defendant’s untimely motion to reconsider her sentence, we vacate the ruling on that motion
       and dismiss it. Because we otherwise lack jurisdiction of this appeal, we do not address her
       argument that she was not proven guilty beyond a reasonable doubt.

¶ 16       Order vacated; motion dismissed.




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