                                     2017 IL App (1st) 150918
                                          No. 1-15-0918

                                                                                FIRST DIVISION
                                                           Rule 23 order filed December 29, 2016
                                                         Rule 23 order withdrawn March 15, 2017
                                                                    Opinion filed March 31, 2017


                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,                 )       Appeal from the
                                                     )       Circuit Court of
               Plaintiff-Appellee,                   )       Cook County.
                                                     )
                         v.                          )       No. 09 CR 80003
                                                     )
ADAM HALL,                                           )
                                                     )       Honorable Thomas Byrne,
               Defendant-Appellant.                  )       Judge Presiding.


       PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
       Justices Harris and Mikva concurred in the judgment and opinion.

                                            OPINION

¶1     Following a trial, a jury determined that defendant, Adam Hall, was a sexually violent

person as defined by the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1

et seq. (West 2012)), and he was subsequently committed to the custody and care of the

Department of Human Services. On appeal, defendant contends that he was denied his right to a

fair trial and that the evidence was insufficient to prove that he was a sexually violent person. In

a motion to dismiss that was taken with the case, the State asserts that this court does not have

jurisdiction over this appeal. We agree with the State for reasons discussed below.
No. 1-15-0918


¶2     We present only the facts relevant to the analysis of our jurisdiction. On May 14, 2014,

the trial court entered judgment on the jury’s verdict that defendant was a sexually violent

person. After the dispositional hearing that immediately followed, the court committed defendant

to the care of the Department of Human Services for treatment in a detention facility and

continued the matter for posttrial motions. Per the report of proceedings, the parties and the trial

court had the following exchange:

                        “MS. WELKIE [Assistant State’s Attorney:] I’ll write [an order] up right

                now while you’re in the back talking, and then I will have it for you—

                        MR. BELL [defense counsel:] I’m sorry, Judge, I’m trying to get a date

                here.

                        MS. WELKIE: What about—we’ll waive the 30 days obviously.

                        THE COURT: You’ll have the 30 days?

                        MS. WELKIE: We’ll waive the 30 days. I mean we will not object if it’s

                after the 30 days if it’s all right with the Court.

                        MR. BELL: June 20.

                        MS. WELKIE: June 20 is fine if it’s okay with the Court.

                        THE COURT: Is that a good date for you, Mr. Bell?

                        MR. BELL: Yes, 6/20, Judge.

                        THE COURT: All right. And we will set that down for any post-trial

                motions.”

¶3     A written order provided that (1) the jury’s verdict was taken by the court and entered

into judgment, (2) defendant was committed to the custody and care of the Department of




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Human Services, and (3) defendant was to be transported to court on June 20, 2014, “for further

status on this matter.” 1

¶4      On June 20, 2014, the parties appeared in court, where the following colloquy occurred:

                        “MR. BELL: Judge, at this time I would ask leave to file a motion for new

                trial. I have spoken with the State about this. Being that I just filed it right now

                and I haven’t had a chance to review the transcript, I was wondering if I could

                have August 8th?

                        THE COURT: August 8th for arguments regarding post-trial motion.”

¶5      The record does not include a report of proceedings for August 8, 2014. A criminal

disposition sheet in the record indicates that on August 8, the parties by agreement set a new date

of October 15, 2014, with the notation “MFNT.”

¶6      At a proceeding on October 15, 2014, the State asserted that there was a motion for a new

trial pending and the State was trying to obtain transcripts. The State suggested a date of

December 5, 2014, for a hearing on the motion for a new trial and stated “[w]e will both have the

transcripts before then.” Defense counsel replied, “That is correct.” The court stated, “It is going

to be by agreement, 12/5.”

¶7      On December 5, 2014, the State asserted that “there is a post trial motion on file, but

[defense counsel] indicated that now that he received the transcript, he wants to file an amended

motion.” The State continued that defense counsel “assured me he can have something to me by

the end of the month” and asked to set the matter for argument on January 21. Defense counsel

responded, “That is correct to everything.” The court set a date of January 21, 2015, for a hearing

on defendant’s posttrial motions.


        1
          The order states that it was entered on May 12, 2014. However, the record indicates elsewhere
that the order was entered on May 14, 2014.
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¶8     At the proceeding on January 21, 2015, defense counsel stated that he filed a

supplemental motion for a new trial and mailed a copy to the judge. The State replied that it had

received the motion. The matter was continued to February 6, 2015, for argument. Defendant’s

supplemental motion for a new trial was file-stamped on January 26, 2015.

¶9     On February 6, 2015, the parties appeared in court for argument. Defense counsel stated

that he filed an initial motion for a new trial “right after the trial occurred,” but without a

transcript. Defense counsel further stated that he filed a supplemental motion for a new trial after

he had a chance to review the transcript. In his argument, defense counsel challenged certain

aspects of the State’s closing argument at trial and requested a new trial. In response, the State

asserted that the motion for a new trial should be denied, maintaining that its closing argument at

trial was proper and that defendant had waived various contentions. Ultimately, the court denied

defendant’s motion for a new trial. Defendant filed his notice of appeal on March 6, 2015.

¶ 10   On appeal, defendant contends the matter should be reversed and remanded for a new

trial because the State made improper remarks to the jury. Defendant further argues that the

judgment should be reversed because the evidence was insufficient to prove that he was a

sexually violent person. We will not address the merits of defendant’s arguments because we do

not have jurisdiction over this appeal.

¶ 11   The State raises the jurisdiction issue in a motion to dismiss that was taken with the case.

In that motion, the State notes that the court entered judgment against defendant on May 14,

2014. The State further asserts that defendant’s posttrial motion was due on June 13, 2014, but

that defendant neither requested nor obtained an extension to file the posttrial motion beyond that

date. The State contends that as a result, the court lost jurisdiction over the case, which nullified

any subsequent court orders and rendered his notice of appeal untimely. The State further argues



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that subject matter jurisdiction may not be waived or cured by consent, and the prosecutor’s

waiver did not revest the circuit court with jurisdiction.

¶ 12    In response, defendant asserts that he timely filed a motion for a new trial. Defendant

contends that the State waived the 30-day requirement for posttrial motions and the court ordered

the 30-day period extended. Additionally, defendant asserts that the State’s position suggests that

defense counsel cannot rely on the word of fellow prosecutors, and that the Illinois Rules of

Professional Conduct recognize that prosecutors bear special responsibilities.

¶ 13    Turning to the applicable law, except where otherwise provided, proceedings under the

Act are governed by the Civil Practice Law. 725 ILCS 207/20 (West 2012). Further, section 2­

1202(c) of the Code of Civil Procedure states that posttrial motions must be filed within 30 days

after the entry of judgment “or within any further time the court may allow within the 30 days or

any extensions thereof.” 735 ILCS 5/2-1202(c) (West 2012). Of note, a trial court loses

jurisdiction over a case after 30 days have passed, unless within the 30-day period, the trial court

extended the time in which a posttrial motion could be filed. Trentman v. Kappel, 333 Ill. App.

3d 440, 441-42 (2002). A notice of appeal must be filed within 30 days after the entry of the final

judgment appealed from, or if a timely posttrial motion directed against the judgment has been

filed, within 30 days after the entry of the order disposing of the last pending postjudgment

motion. Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

¶ 14    Here, after the trial court entered the judgment on May 14, 2014, defendant had 30 days

in which to file a posttrial motion. 735 ILCS 5/2-1202(c) (West 2012). Defendant asserts that the

State waived the 30-day requirement and the trial court ordered an extension. To clarify, whether

the State waived the 30-day requirement does not matter—what matters is whether the trial court

actually ordered an extension for defendant to file a posttrial motion. See Manning v. City of



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Chicago, 407 Ill. App. 3d 849, 852 (2011) (if a party seeks an extension in which to file a

posttrial motion, the party must obtain and secure the extension from the trial court before the

previous deadline expires). The record on this point is uncertain. The exchange between the

State, defense counsel, and the trial court on May 14 does not make clear whether the court

ordered an extension for defendant to file a posttrial motion or merely ordered a hearing date of

June 20, 2014. The court’s written order from May 14 also does not state that defendant was

granted an extension for filing a posttrial motion.

¶ 15   Yet, even if the trial court’s May 14 order could be construed as ordering an extension for

filing a posttrial motion to June 20, 2014, defendant’s position suffers from a different and fatal

flaw—the record does not indicate when his motion for a new trial was actually filed. Without

citing to the record, defendant claims in his response to the State’s motion to dismiss that he filed

his motion for a new trial between May 14, 2014, and June 20, 2014. However, the motion for a

new trial in the record does not have a file stamp. The State’s reply to its motion to dismiss

appended a copy of a motion for a new trial, but this too does not have a file stamp. The reports

of proceedings also do not indicate when exactly defendant’s motion for a new trial was filed.

On June 20, 2014, defense counsel asked for leave to file a motion for a new trial, but also stated

that he filed it “right now.” On December 5, 2014, the State acknowledged that a posttrial motion

was on file. On February 6, 2015, defense counsel stated that he filed a posttrial motion “right

after the trial occurred.” These statements do not provide the exact date when the motion for a

new trial was filed, and this court needs that date to determine if the motion was timely filed.

¶ 16   The appellant—here, defendant—has the burden to present a sufficiently complete record

to support a claim of error on appeal. See Webster v. Hartman, 195 Ill. 2d 426, 432 (2001). Any

doubts that arise from the incompleteness of the record will be resolved against the appellant.



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Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Because defendant has not provided a file-

stamped copy of his motion for a new trial or other clear evidence of when it was filed, we

conclude the motion was not timely filed, either for a June 13 or June 20, 2014, deadline. As a

result, the trial court lost jurisdiction to entertain a posttrial motion on the merits. See Portock v.

Freeman, 53 Ill. App. 3d 1027, 1030 (1977) (where party failed to timely file a posttrial motion,

trial court lost jurisdiction to entertain the motion on its merits). The trial court also lost

jurisdiction to grant additional time to file a posttrial motion, which includes the supplemental

motion for a new trial that was ultimately filed in January 2015. See Lowenthal v. McDonald,

367 Ill. App. 3d 919, 923 (2006) (where party failed to either file a posttrial motion or obtain a

further extension to file a posttrial motion, trial court lacked jurisdiction to grant additional time

to file the motion).

¶ 17   For the sake of completeness, we note that the revestment doctrine does not apply here.

The revestment doctrine acts as an exception to the rule that a trial court loses jurisdiction to hear

a cause after the end of the 30-day period following a final judgment. People v. Bailey, 2014 IL

115459, ¶ 8. The doctrine applies when 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.” (Emphasis omitted.) Id. ¶ 25. While both parties actively

participated in the posttrial proceedings and did not mention that defendant’s posttrial motions

were untimely, the third requirement for revestment was not met. At the hearing on February 6,

2015, the State actively opposed defendant’s request for a new trial. The State defended the

merits of the prior judgment and did not seek to set it aside, which precludes revesting the trial

court with jurisdiction. See id. ¶ 27.



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¶ 18   As noted, the trial court did not have jurisdiction to address defendant’s posttrial motions.

Further, defendant did not timely file a postjudgment motion that would have tolled the 30-day

period for filing a notice of appeal, and defendant’s notice of appeal was not filed until March 6,

2015. Consequently, we do not have jurisdiction over this appeal. See Ill. S. Ct. R. 303(a)(1) (eff.

Jan. 1, 2015) (notice of appeal must be filed within 30 days after entry of final judgment

appealed from or if timely posttrial motion is filed, within 30 days after entry of order disposing

of last pending postjudgment motion); Secura Insurance Co. v. Illinois Farmers Insurance Co.,

232 Ill. 2d 209, 213 (2009) (timely filed notice of appeal is jurisdictional and mandatory). The

next question is how to proceed. A trial court’s lack of jurisdiction is not a complete bar to the

exercise of the appellate court’s jurisdiction. Bailey, 2014 IL 115459, ¶ 29. In that case, the

appellate court is limited to considering the trial court’s jurisdiction. Id. With this in mind, the

appropriate remedy here is not to dismiss the appeal, since that would leave the trial court’s

ruling on the merits of defendant’s posttrial motions intact even though the trial court did not

have jurisdiction. Id. ¶ 28. Instead, we vacate the trial court’s February 6, 2015, order that denied

defendant’s posttrial motions. See id. ¶ 29. Defendant should have filed his notice of appeal

within 30 days of the May 14, 2014, order, there being no timely filed posttrial motion in the

record. Defendant’s judgment as a sexually violent person and commitment to the custody and

care of the Department of Human Services stands.

¶ 19   We recognize that our finding that we cannot assess the merits of defendant’s appeal

leads to a harsh result. We urge defense counsel to consider other options for pursuing

defendant’s claims, whether in the circuit court or the Illinois Supreme Court.

¶ 20   Order vacated.




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