People v. Gitchel
736 N.E.2d 645
Ill. App. Ct.
2000
Check Treatment

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY A. GITCHEL, Defendant-Appellant.

No. 4-99-0572

Fourth District

September 12, 2000

213 Ill. App. 3d 213

declare a mistrial. Thus, the court‘s declaration was tantamount to a sua sponte mistrial declaration over opposing argument from defense counsel. In addition, the court requested ad hoc arguments from counsel, giving neither party adequate time to prepare cogent remarks regarding the applicability of the rape shield statute. Furthermore, the State apparently did not want a mistrial since the prosecutor asked the court to administer a curativе instruction and only later moved for a mistrial after it became apparent that the court was going to declare one on its own. The record fails to demonstrate that the trial judge considered the State‘s suggestion of a curative instruction, or any other alternative, prior to declaring the mistrial and fails to show that the judge articulated any reasons for rejecting that alternative. We conclude that the trial court failed to exercise sound discretion in determining whether manifest necessity rеquired it to declare a mistrial and hold that retrying defendant under these circumstances for the same offense would violate the constitutional protection against double jeopardy (U.S. Const., amend. V).

III. CONCLUSION

For the reasons stated, we reverse.

Reversed.

COOK, P.J., and STEIGMANN, J., concur.

COOK, P.J., dissenting.

Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender‘s Office, of Springfield, for appellant.

Diane Sipich, State‘s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In February 1998, defendant pleaded guilty to one count of burglary (720 ILCS 5/19-1 (West 1998)), and the trial court sentenced him to 12 months’ probation with 10 weekends of periodic imprisonment and fined him $300. In February 1999, the court revoked defendant‘s probation, and in June 1999, the court resentenced him to 3 years’ imрrisonment with 30 days’ credit for time served in the county jail as part of his probation sentence. Defendant appeals, contending that (1) he is entitled to (a) an additional 9 days’ sentence credit for time spent in jail awaiting sentencing and (b) a corresponding $45 credit against his fine; and (2) the case should be remanded for a hearing on his postsentencing motion, which was filed on July 6, 1999, simultaneously with his notice of appeal, but which the trial court did not consider. We affirm as modified and remand with directions.

I. PERIODIC IMPRISONMENT EQUATES TO SENTENCE CREDIT FOR DURATION OF ITS TERM

The record rеflects, and the State concedes, defendant was incarcerated for 39 days prior to sentencing on revocation of probation, but the trial court credited him with only the last 30 days. However, where a defendant serves jail time on weekends undеr a sentence of periodic imprisonment (730 ILCS 5/5-7-1 (West 1998)), he is entitled to credit for all the days during that period, and not just for time actually spent in confinement. ; . The governing statutory provisions are explicit. Section 5-7-1(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-7-1(d) (West 1998)) provides: “The term of the sentеnce shall be calculated upon the basis of the duration of its term rather than upon the basis of the actual days spent in confinement.” Section 5-7-2(c) of the Unified Code states: “That part of the term under paragraph (d) of [s]ection 5-7-1 which has beеn served under the sentence of periodic imprisonment shall be credited against a sentence of imprisonment.” 730 ILCS 5/5-7-2(c) (West 1998). Sentence credit is generally considered under section 5-8-7(b) of the Unified Code (730 ILCS 5/5-8-7(b) (West 1998) (“shall be given credit *** for time spent in custody as a result of the offense for which the sentence was imposed“)); crediting for periodic imprisonment is an exception, however, more specifically addressed by the aforementioned sections, which control as to the duration of its term.

Counting from Februаry 27, 1998, through May 3, 1998, the last day of 10 weekends of periodic imprisonment, plus 9 days served prior to that, yields 75 days of credit. Accordingly, defendant is entitled to an additional 45 days of sentence credit. We note that the form judgment of sentence used here may cоntribute to the problem, as item C states “The defendant is entitled to credit for time actually served in custody of ____ days.” This form could be updated to provide, for example, as follows:

C. (1) The defendant is entitled to time served on periodic imprisonment for the duration of its term from ____ to ____, for a total of ____ days;

(2) the defendant is entitled to credit for time served awaiting sentence on a bailable offense of ____ days; and a corresponding credit against $____ fine of $____ ($5/day); and

(3) the defendant is entitled to credit for other time actually served in custody of ____ days.

II. CREDIT AGAINST FINE FOR TIME AWAITING SENTENCE FOR BAILABLE OFFENSE

Defendant is further entitled to a corresponding $45 credit against the fine imposed for 9 days served awaiting sentence on the bailable offense of burglary. .

III. NO REMAND FOR HEARING ON POSTTRIAL MOTION FILED WITH NOTICE OF APPEAL

Finally, defendant contends that ‍​​‌​‌​​‌​‌‌‌‌​‌‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌‍the case should be remanded for a hearing on his postsentencing motion to withdraw his plea in which he inartfully alleged he received ineffective assistance of counsel that resulted in his admission to the allegations of the petition to revoke probation. We disagree. In , the supreme court held that the jurisdiction of the appellate court attaches instanter when a defendant simultaneously files a notice of appeal and a postsentencing motion. Since the trial court was without jurisdiction to consider the postsеntencing motion, it is rendered, in effect, a nullity. It necessarily follows that such a motion does not reside in legal limbo only to be resurrected at the conclusion of appellate review. If the trial court was without jurisdiction to consider the motion when it wаs filed, it is without jurisdiction to consider it now.

Before concluding, we note that the Second District Appellate Court recently refused to apply Bounds in a case where defendant filed a notice of appeal five days before filing a motion to reconsider sentence. . In doing so, the court reasoned that (1) Bounds involved a postconviction appeal rather than a direct appeal following conviction, (2) the motion and the notice of appeal were not filed simultaneously, and (3) the substance of the motion involved a challenge to defendant‘s sentence, which was governed by section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West 1998)), which provides:

“If a motion filed pursuant to this subsection [to reconsider sentence] is timely filed within 30 days after the sentence is imposed, then for purposes of pеrfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.” 730 ILCS 5/5-8-1(c) (West 1998).

In doing so, the court was critical of the fact that the suрreme court “did not acknowledge any of the appellate court decisions that were decided before Bounds and that reached a contrary conclusion.” .

We find that the stated rationale in Clark does not withstand close scrutiny and, in any event, it does not affect the result in this case. In the first instance, the supreme court in Bounds drew no distinction between postconviction and direct appeals following trial proceedings. To the contrary, the court specifically based its ruling on an interpretation of how criminal rules governing appeals operate. Implicit in that determination is the conclusion that they operate uniformly for all cases to which they apply. The Clark court also failed to note that , which the supreme court found controlling in Bounds, arose from a direct appeal following a conviction for unlawful use of weapons in which defendant filed a motion for a new trial and a notice of аppeal on the same day.

We also reject the Clark court‘s conclusion that a different result obtains when the postjudgment motion involves a request to reconsider sentence. Initially, we note that such a motion is entirely appropriate in ‍​​‌​‌​​‌​‌‌‌‌​‌‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌‍a postconviction рetition setting when, for instance, defendant must be resentenced after a determination that the original sentencing order was void. This undercuts the conclusion in Clark that an artificial, blanket distinction exists for disparate treatment of postconviction and dirеct appeals. In addition, we fail to see how a statute that purports to determine when an appeal may be taken trumps a supreme court rule that requires a different result. It is axiomatic that when a statute conflicts with a supreme cоurt rule on a matter of procedure, the court rule governs. ; . Rather than tacitly creating a conflict between the statute and rule, as we believe the Clark court does, the statute and rule must be read in harmony so that the statute applies unless superseded by the rule governing the filing of a criminal notice of appeal.

We also fail to see why the fact that the posttrial motion and notice of appeal were filed on different days serves to distinguish the situation in Clark from that in Bounds. If anything, the last-filed document would seem to be a clearer reflection of the filer‘s intent. In Clark, defendant filed a pro se notice of appeal, counsel filed the motion to reconsider sentence five days later and defendant filed a second pro se notice of appeal two weeks later. Applying the reasoning, cited with approval in Clark, to the effect that a subsequently filed posttrial motion serves as an implicit dismissal of a previously filed notice of appeal () would appear to dictate that a subsequently filed notice of appeal serves as an abandonment of a previously filed posttrial motion.

The court in Clark also rejected this court‘s application of Bounds in a direct appeal case, , in part because it concluded that we followed Bounds “reluctantly” and with “hesitation.” . Even if that characterization is accurate, displeasure with the precedent provides no license to evade it. Only the supreme court has the authority tо modify the operation of its rules of appellate procedure. Significantly it has done so, addressing this precise issue, through a recent amendment to Rule 606(b). See 188 Ill. 2d R. 606(b), eff. December 1, 1999. As amended, the rule now provides:

“When a timely post[ ]trial or post[ ]sentencing motion directed against the judgment has bеen filed by counsel or by defendant, if not represented by counsel, any notice of appeal filed before the entry of the order disposing of all pending post[ ]judgment motions shall have no effect and shall be stricken by the trial court. *** This rule applies whether the timely post[ ]judgment motion was filed before or after the date on which the notice of appeal was filed.”

Finally, irrespective of our rejection of Clark, its holding and rationale have no ‍​​‌​‌​​‌​‌‌‌‌​‌‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌‍application to this case. As in Bounds, defendant filed a posttrial motion and a notice of appeal simultaneously, rather than days apart. In addition, the posttrial motion here did not raise any sentencing issue for reconsideration. Rather, defendant alleged trial counsel was ineffective for allowing him to stipulate to the existence of other offenses he committed that formed the basis for revoking his probation. Hence, section 5-8-1(c) of the Unified Code simply does not apply.

IV. CONCLUSION

Accordingly, we affirm the order revoking defendant‘s probation. The cause is remanded with directions to amend the judgment order to reflect defendant‘s entitlement to an additional 45 days of sentence credit for time served, for 75 days total, and a $45 credit against his fine.

Affirmed as modified and remanded with directions.

GARMAN, J., concurs.

PRESIDING JUSTICE COOK, dissenting:

The supreme court in Bounds held that when a motion to reconsider is filed simultaneously with a notice of appeal, the jurisdiction of the reviewing court attaches instanter, and the trial court may not consider the motion to reconsider. (involving a direct appeal to the supreme court from the dismissal of a postconviction petition). Failure to considеr the motion to reconsider in Bounds had little significance. The supreme court simply addressed the original order on its merits, reversing the dismissal of the petition. In , in contrast, we applied Bounds to prevent trial court consideration of a postsentencing motion, a motion which was very significant. After we ruled that the postsentencing motion could not be considered by the trial court, we found that the sentencing issues were forfeited for failure to file a timely postsentencing motion in the trial court. . We apply the same reasoning to deprive defendant оf his appeal in this case.

I respectfully dissent. The majority applies Bounds far beyond what was intended by the supreme court. I would remand this case to the trial court for consideration of defendant‘s postsentencing motion and the other issues addressed by the majority.

Supreme Court Rule 303(a)(2) (155 Ill. 2d R. 303(a)(2)) (effective February 1, 1994) providеs that the timely filing of a posttrial motion, even if it is preceded by the filing of a notice of appeal, requires that the notice of appeal be withdrawn and the posttrial motion heard by the trial court. Rule 303(a)(2) is a civil rule, but it has been appliеd in criminal cases. See, e.g., ; . We should follow those cases here.

Finally, the supreme court amended Rule 606(b), effective December 1, 1999, to make it clear that postsentencing motions in cases like this should be heard, and the notice of appeal should have no effect. Official Reports Advance Sheet No. 22 (November 3, 1999), R. 606(b), eff. December 1, 1999. Jenkins was wrong, and the supreme court has ‍​​‌​‌​​‌​‌‌‌‌​‌‌​​​​‌‌​​‌‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌‍now said so. We should not follow it.