People v. Marker

her evaluation indicated that Respondent’s psychological retardation. IQ 67, previous decrease from a evaluation. full scale which is a services, participating has been in recommended Although respondent classes, including parenting therapists case workers and therapy is not able to ef- making progress have said that she is minimal stated, “There fectively parent. parenting capacity As the assessment part like to be a of his is no that she loves him and would question this, ability life, achieving as well as her to do yet her commitment to evidence to so, find that the State submitted sufficient is limited.” We minor, and the trial neglected to show that R.S. is a satisfy its burden weight manifest of the evidence. finding against court’s was not appeal, notice of she stated Finally, respondent’s we note that in order that she was unable appealing disposition that she is the court’s However, adjudication order. parent the children addition ruling. dispositional to address the court’s argument, in her she failed in the reply waived and shall not be raised argued “Points not are rehearing.” 210 Ill. 2d R. brief, argument, petition in oral or on 341(h)(7). of the trial has waived review Accordingly, respondent ruling. order, dispositional dispositional and we affirm court’s reasons, the decision of the foregoing we affirm Based on the County. circuit court of Cook

Affirmed. McNULTY,JJ., concur.

O’MALLEYand ILLINOIS, Plaintiff-Appellant, v. OF OF THE STATE THE PEOPLE MARKER, Defendant-Appellee. BRENT E. District No. 2 — 06—1071

Second Opinion May 2008. filed O’MALLEY,J., dissenting. (Lawrence Weis, Attorney,

Eric C. State’s of Yorkville M. Bauer and Rita Kennedy Mertel, Appellate Office, both of Attorneys State’s Prosecutor’s of counsel), People. for the Wechter,

Larry Wechter, Geneva, Larry appellee. of Law Office of of for JUSTICE BYRNE delivered the opinion of court: Following officer, a traffic stop by Oswego police defendant was (625 charged arrested and with driving drugs under the influence of 501(a)(6) (West 2006)) ILCS driving and under the combined 5/11 — (625 501(a)(5) (West 2006)) drugs influence of and alcohol ILCS 5/11 — (DUI) in case number arrest, 06—DT—57. As a result of the same defendant was charged also with possession unlawful of a controlled (720 570/402(a)(2)(A) (West 2006)) substance ILCS pos and unlawful (720 session of a controlled substance with intent to deliver ILCS 570/ 401(a)(2)(A) (West 2006)) in case number 06—CF—69. Defendant filed evidence, a motion to quash his arrest and suppress and the trial court granted August 11, 7, 2006, the motion on September 2006. On State moved to reconsider ruling. trial court’s The trial court denied September 28, 2006, the motion to reconsider on and on (see 23, 2006, October impairment People State filed a certificate of (1980)) v. 82 Young, appeal. Ill. 2d 234 and a notice of We conclude that the State’s appeal timely notice of was not and we therefore appeal. dismiss the State’s 11, 2007, July

On appeal defendant filed a motion to dismiss this for jurisdiction. 19, lack of responded July State to the motion on time, 2007. At that reply yet State’s brief was not due and no panel of this assigned appeal. panel court had been to decide the A of 1, this hearing August court motions denied the motion to on dismiss shortly appeal assigned and thereafter was to a different panel of disposition. this court for Defendant later filed a “Motion to Submit Jurisdictional Motion Issues Addressed in the Briefs and With

466 again jurisdiction, Arguments.” Defendant asks us to consider our the earlier of his motion dismiss. The motion is al despite denial panel’s ruling revisiting does us from lowed. The motion not foreclose Waddick, jurisdiction. question Marriage App. In re 373 Ill. (2007). Indeed, “[ajlthough panel 3d 705 the motion denied the dismiss, duty to panel independent motion to has an determine jurisdiction if whether we have and dismiss an we do not.” Waddick, App. Ill. 373 3d at 705. dismiss, alia, argues,

In his motion defendant inter 30 its notice State had to file after trial 11, 2006, granted suppress August the motion quash on ruling motion to trial did not that its reconsider the court’s extend period forthrightly filing notice Defendant acknowl edges argument contrary his of decisions from a number court, us to a fresh urges other districts but he take directs to six look at the issue. Defendant our attention decisions: Matre, Rimmer, (1988), 3d 201 v. People App. People v. Van (1983), (1985), McBride, Ill. 3d People App. 3d 107 v. Clark, (1979), Stokes, v. Ill. People People (1977), Robins, 3d 634 Two of the cases defendant cited—McBride and Clark—have little bearing question on the issue before us. The Clark was no where was filed whether the defendant’s notice (1) days entry denying within of an defendant’s following 30 order: (2) of his to dismiss and motion to reconsider the denial motion guilty and sentence. McBride reinstating previously plea a vacated for proposition stands for the that the State move reconsideration McBride, a filing appeal. order notice of suppression prior However, jurisdiction not in Ill. 3d at 80. at issue App. McBride, of whether a mo question and the court did not address the bringing an A appeal. tion reconsider would extend the time for Robins, decision, jurisdictional issue precise third does not address the by suppres in to reconsider a this case: whether a motion State However, because filing appeal. sion tolls the time for a notice of ruling (either directly indirectly) addressing that have relied cases issue Robins, necessary on it is to consider here.

Moreover, we are of two not cited defendant— aware cases Burks, Smith, (1992), People App. 232 Ill. 3d and People v. (2004) mo proposition stand that a Ill. 3d 750 also for the —that tolls the for tak suppressing an evidence time tion to reconsider order examine, Thus, decisions to from that order. we have six appeal begin precisely five involve the same issue now before us. We of which (as one), granted the trial court present In that case in the with Stokes. and the State filed a quash suppress, the defendant’s motion to reconsider, notice of of its motion to days within 30 of the denial quash the motion to days ruling granting but more than 30 after the suppress. court noted that the trial court retains the Stokes days of 30 power modify judgment period or vacate its for a effect of may appeal any that the State order that has the substantive Stokes, Ultimately, suppressing evidence. 3d at 298. however, holding the motion to Stokes relied on Robins file its notice of reconsider extended the time for the State to Stokes, suppression ruling. Unlike Robins did not involve review of a Robins, dismissing a criminal appealed State from an order complaint applicable expired. because the statute of limitations had following language Stokes relied on the from Robins: policy clearly “Public favors correction of errors at the trial level. previously Wehave held that a appropri motion reconsider is an ate method to be in directing utilized the attention of the trial (Childress judge to claim [a] of error. v. State Farm Mutual (1968), AutomobileInsurance Co. 239 N.E.2d 492.) The time commenced with the denial of that mo Robins, tion.” 33 App. 3d at 636.

Defendant correctly points out that Robins holding based its on a decision a civil appeals Civil and criminal are —Childress. (see governed by rules, different although overlap there is substantial 612). decided, Ill. 2d R. When Childress was Supreme Court Rule 303(a) (36 303(a)), Ill. 2d R. applies which to civil appeals, provided that, if party motion, filed a timely posttrial the notice of appeal was due within 30 entry after of the order disposing of the motion. However, the governing perfection appeals criminal proceedings tolled the filing time for the notice appeal only “if the appellant applies for probation or files a motion for a new trial or 606(b). judgment.” arrest of 36 Ill. 2d R. Childress no provides analytical support for Robins. decide, however,

We need not correctly whether Robins was 303(a)’s decided. Even if Rule tolling principle applied in criminal cases, Robins, Childress, like judgment nevertheless involved a final Stokes, however, or order. interlocutory sup involved an order —one (1993) pressing Leach, evidence. See (“A suppression finally adjudicate order does not a criminal prosecu trial”). tion, but bars certain impending evidence from the Even cases, in civil interlocutory “a motion attacking an order will not toll the running 30-day of the deadline for the filing ap notice peal.” Nissan, Craine v. Bill Kay’s Downers Grove 1023, Thus there is precedent no valid —civil tolling criminal—for the rule announced in Stokes. same, Stokes, asserting All the the dissent endorses the result case, that reasoning public policy, “[i]t is the of the the basis force, gives tolling solely provenance.” (Emphasis rule not its added.) 3d at 480. the dissent does not hold Robins up legal analysis. as models of What redeems these deci Stokes sions, The dis eyes, public policy they express. in the dissent’s is the for straightforward: support sent’s thesis is there is in the case law policy favors correction of errors at the proposition public tolling filing public trial level and the time for advances that objective. policy driving fashioning principles

If force in public policy is seen as place least appellate jurisdiction, things seem to fall into —at tolling rule in civil cases conforms to the initially. Childress’s public policy favoring rule and to the correc plicable supreme court policy supports public tion of errors in the trial court. The same judgments rule to final in criminal application Robins’s for time, provided no court rule though, cases even at that however, reasoning smoothly, runs less such a result. The dissent’s view, public policy In the dissent’s respect interlocutory with orders. interlocutory appeals in criminal supports extending rule cases, though and even provides even if no court rule so The dissent notes applicable permit tolling. in civil cases does not cases, appeal may from which an interlocutory in civil orders hardship, public burden or and the ordinarily taken involve some “trumps review of such orders policy favoring prompt appellate their errors allowing trial courts to correct public policy preference 3d at 480. Accord prevent appeals.” needless order dissent, apply does not to a defendant who public policy Permitting disagree. successfully suppress moved to evidence. We has months, significant can cause delay possibly for appeal, the State to anxiety facing attendant First, delay prolongs the hardship. arises because a tangible hardship An more charges. criminal even without custody released from ordinarily is entitled to be defendant 604(a)(3) Ill. 2d R. pending. is See 210 appeal by bail while an the State (“A during pendency jail held in or to bail defendant shall not be *** for compelling are reasons the State unless there appeal by of an detention”). aware, contrast, as we are so far his or her continued merely because he custody released from right has no to be defendant Thus a defendant who suppress evidence. on a motion to prevailed has bail, may post bail, or who cannot afford admitted to has not been the mo custody several months while remain in very well have to adjudicated. reconsideration tion for ap- dissent’s with the said, disagreement our fundamental

That proach jurisdictional approach to the issue—at least as that takes in shape public policy the first section of the dissent —is that it treats as the polestar jurisdictional analysis. policy Public is relevant to the inquiry expression insofar as it finds in our court’s rules governing interlocutory appeals. But the law could not be more clear paramount. that the rules themselves are Our state constitution provides:

“Appealsfrom judgments final of a Circuit Court are a matter of right Appellate to the in Court the Judicial District which the Circuit Supreme criminal except appealable directly Court located in cases to the and except

Court that after a trial on the merits in a case, appeal judgment acquit there shall be no from a Supreme mayprovide by tal. The Court appeals Ap pellate Court other judgments than Circuit Courts.” from final added.) 1970, VI, (Emphasis §6. Ill. Const. art. 604(a) (210 604(a)) Supreme Court Rule Ill. 2d permits R. interlocutory appeals evidence, from orders suppressing Supreme and (210 606) Court Rule 606 Ill. 2d R. specifies the manner in which such appeals perfected. are solely We thus not follow on Stokes strength rationale, of a public policy ignoring justify Stokes’s failure to its result with reference to the court rules governing appeals from suppression orders. mayWe not simply substitute our own view of sound public policy for the express command of these rules. The question before us is not whether it is desirable to toll the time for fil ing a notice of appeal while a pending. motion to reconsider is question, rather, is applicable whether the supreme court rules call for doing so.

Before tackling that question, briefly we consider the four remain applying Matre, decisions a tolling Burks, Rimmer, rule: Van and (Van Smith. Van Matre relied on Matre, Stokes and Robins 164 Ill. App. 203), 3d at (Burks, and Burks relied on Van Matre 355 Ill. App. 754). 3d at Neither Van Matre nor Burks any independent contains analysis jurisdictional issue, so those cases are no more persuasive than Stokes. Rimmer, granted the trial court quash sup a motion to

press. The State later filed a motion to admit certain statements based on “attenuating Rimmer, circumstances.” 132 Ill. 3d 111. The at trial court denied the motion appealed. appeal, State On court held that was, substance, the motion to admit statements a motion to reconsider the suppression ruling. The court held that the timely, but authority cited no and offered no analysis support of implicit premise that a motion for reconsideration tolls the time for appealing from an order suppressing evidence. See Rim mer, 3d at 111. (1990), Williams, for the 138 Ill. 2d 377 cited

Smith ruling of a for reconsideration timely motion proposition “[a] to file a notice of will toll the time suppression motion granting held where the Smith, at 127. Williams peal.” seek ruling or suppression an adverse not from State does it cannot taking appeal, during the time for of it reconsideration is not court. Williams issue in the trial relitigate later The dissent acknowl authority proposition for the stated Smith. at holding of Williams. misstates edges that Smith reasoned that “Williams also However, the dissent notes 481. op “the circuit court giving favors ‘statutory judicial policy and orders within judgments appealable to reconsider final portunity yet has been no notice of entry” long as as of their ” 394, Williams, Ill. 2d at 481, quoting 3d at filed.’ 382 Ill. (1978). reasoning has This Heil, quoting People judg reconsider a final here, court did not as the trial application no days. within 30 it did not do so ment and interlocutory was extended principle that the The dissent notes (1990). stated The Mink court Mink, 141 Ill. 2d 163 People v. orders in reconsider power to case has inherent in a criminal “[a] court or rule in of a statute rulings, even the absence correct its own “extends to interlocu power authority” and that it such granting The issue Mink, 141 Ill. 2d at 171. final, judgments.” as tory, as well power has the the court us, however, is not whether before for of a motion pendency but whether rulings, its reconsider an interlocu perfecting for requirements affects reconsideration but public policy, on reasoning is based The dissent’s tory appeal. any public And if there are nothing public policy. about Mink said reconsider power inherent trial court’s of a policy implications in a civil the same should be rulings, implications interlocutory Novak, See, Catlett v. e.g., power. has the same a trial court case where Craine, (1987). a motion However, held in as we 116 Ill. 2d from an appeal perfecting for on the time has no effect reconsider in Mink appeal that the note in a civil case. We interlocutory order the defendant’s wit, the reinstatement judgment, from a final reconsidera motion for court, on the State’s trial after the conviction says trial. Mink a new the defendant tion, granting an order vacated motion to granted court the trial tolling; before nothing about be taken. could appeal which an order from reconsider, there was no 693, 696 Hammond, Accord Rather, appeals. in civil and criminal symmetry not demand doWe rules applicable adherence only we ask they or not whether setting, in each jurisdiction governing appellate point Our analogous cases. yield procedurally similar results necessary is not a simply that a again citing once Craine is errors, its own power court’s inherent to correct corollary of the trial evidently as the dissent believes.1 that, as court rules now turn our attention to

We noted, jurisdictional question in this case. previously govern the 604(a)(1) 604(a)(1)) (210 2d R. states Supreme Court Rule *** pertinent may appeal from part “[i]n criminal cases State *** judgment an order or the substantive effect of which results evidence,” State’s notice of suppressing specify but does not when the appeal must be filed. in a filing appeal The time for the notice of subject 606(b), criminal which Supreme case is Court Rule provides: 604(d),

“Except provided as in Rule the notice of must be days filed with the clerk of the circuit court within 30 after the entry judgment appealed of the final from or if a motion directed filed, against judgment timely days entry within 30 after the disposing timely of the order posttrial of the motion. When a postsentencing motion against judgment directed has been filed *** any entry notice of filed before the the order dispos- all pending postjudgment motions shall have no effect and shall be Upon striking stricken the trial court. ap- notice of peal, the trial court shall forward to the court within 5 days copy of the order striking appeal, showing by the notice of whom it was filed and ap- the date on which it was filed. This rule plies timely postjudgment whether the motion was filed before or after the date on which the notice of A appeal was filed. new notice days must be filed following entry within 30 disposing order of all postjudgment motions. Within of its being copy so filed a of the notice of appeal an amendment appeal of the notice of shall be transmitted the clerk of the (“In App. give 1See382 Ill. 3d at 484 [the order to effect to court’s inher power orders], ent interlocutory tolling ap to correct errors in the rule must ply reconsider; appellant to motions to otherwise an will have to choose taking between losing a chance that the will trial court correct its error and right appeal”). the presupposes We note that the dissent’s view that it is impossible impractical or at least for the trial court to rule on a motion to days However, reconsider suppression within 30 after the initial order. as the acknowledges, candidly reported dissent in several decisions reconsideration of suppression ruling frame, accomplished allowing the within this time the perfect appeal State to its without the benefit of a rule. See 382 Ill. App. 489, citing People Gott, (2003); 3d App. People at v. 346 Ill. 3d 236 v. Evans, App. (2000); DeBlieck, People App. 314 Ill. 3d 985 v. 181 Ill. 3d 600 (1982). (1989); People Zeigler, v. 106 Ill. 3d 783 appeal of the court to which the is taken. circuit court to the clerk (c) below, 604(d), and in Rule no paragraph

Except provided as reviewing a court after may be taken from a trial court to appeal judgment days entry from the of the order or expiration of 30 The clerk of the appeal from which the is taken. under this notify any whose has been dismissed party shall 606(b). 2d

rule.” 210 Ill. R. as a statute. court rule in the same manner interpret a We (2004). objec “primary Our King, 3d intent,” the best give effect to the drafter’s tive is to ascertain and ordinary given plain language, of which is “the rule’s indication 3d at 878. meaning.” King, 606(b) notes, the first sentence of Rule correctly As defendant days filed of a of must be within provides that a notice final timely against judgment unless a motion directed judgment and the four Thus, embodied in this sentence rule filed. of penultimate sentence judgments. follow to final applies explicit no rule, judgments, contains is not limited to final which the first five sentences applied judgments, As to final tolling provision. produce different sentence could penultimate the rule and the however, resolved, by applying may be results. The conflict “[wjhere that, statutory provision general a of construction principle subject, we relate to the same specific statutory provision more and a specific provision more intended the presume legislature that the will The first five Green, govern.” Moore judgments. final they apply only specific, more as sentences are will toll the judgment against motion directed final However, judgment. from that filing time for a notice expiration taken after the order not be interlocutory from an peal is consistent interpretation Our entry from the of the order. of 30 penul concluded because where we King with our decision 606(b) from final appeals limited to Rule is not sentence of timate denying mo interlocutory orders from governs appeals judgments, King, jeopardy. former grounds on tions to dismiss at 880. the first conflict between possible suggests that

The dissent ex- justifies an sentence penultimate of the rule and five sentences dissent, According to the to construction. approach tratextual to construe so as applied should be “acquiescence” principle Rimmer, Matre, and Stokes. Smith, Burks, Van with rule in accordance have used in the statute is, terms that where general “The are judicial construction meaning through a settled acquired or re-enactments amendments subsequent retained statute, they interpreted are to be understood and in the same by contrary sense theretofore attributed to them the court unless a judicial legislature intention of the is made clear. The construction law, a part presumed legislature becomes of the and it is that the passing the prior law knew such construction of the words in the People Bank, enactment.” ex rel. Nelson v. WiersemaState (1935). 75, 78-79 Similarly, legislature “where the chooses not to terms of a amend judicial construction, statute after presumed it will be it has acquiesced in legislative the court’s statement of intent.” R.D. (2005). Masonry, Comm’n, Inc. v. Industrial 215 Ill. 2d However, presumption “is merely jurisprudential principle; it is not a rule of law.” A Perry, lead ing commentator has criticized the principle acquiescence as an unreliable test legislative Singer, intent. See 2B N. Sutherland on (6th 2000). Statutory §49.10 Construction Although ed. similar criti cism decisions, has not been voiced in reported Illinois it is clear that supreme our always court has not scrupulously adhered to the acquiescence instance, principle. For in McMahan v. Industrial Comm’n, (1998), 183 Ill. 2d 499 repudiated the court Childress v. (1982) Comm’n, Industrial 93 Ill. 2d 144 interpreting decision — a (820 language from section 16 of the Compensation Workers’ Act ILCS (West 1992)) “[t]he court’s holding Childress was 305/16 —because premised on an overly reading narrow and incorrect of the relevant statutory provisions.” McMahan, 183 Ill. 2d at 511. The McMahan evidently by unfazed during years fact the 16 since decided, Childress was Assembly the General had amended section 16 (see 341, §3, three times 14, 1983; Pub. Act eff. September Pub. 83 — 1125, §1, Act 30, 1984; eff. 998, §1, June Pub. Act eff. 83 — 86 — 18, 1989), December but had language not touched the construed court in Childress. It is also debatable whether the requirement applica- threshold 606(b) principle tion of the the terms used in Rule “have —that acquired a meaning judicial settled through construction” —has been met here. None of the decisions actually on which the dissent relies 606(b). explored language noted, of Rule As we the decisions were based on public policy 606(b), rather than construction of Rule which was mentioned For parenthetically. practical purposes, all simply cases ignored the rule. whether this question We properly “judicial called construction.”

Moreover, although supreme court are construed in the same rules statutes, manner as application acquiescence to a principle analytically problematic. argu court rule is The dissent’s to amend Rule opportunities had supreme court has ment is that the 606(b) cases; by not avail and similar to correct the results Stokes in those acquiesced court has opportunities, itself of these opportunities more direct fact, court had even supreme results. In Burks, sought appeal Leave to rule. repudiate to Smith, in all appeal leave to The court denied and Van Matre. Smith, (2005); Burks, People Ill. 2d 602 People v. 215 three cases. See (1988). If Matre, Ill. 2d 572 (1992); v. Van 119 People 146 Ill. 2d 647 construed a rule after it has been to amend a court the failure construction, then it would in the acquiescence court amounts to lower signal appeal should petition of a for leave seem that denial also acquiescence. Indeed, appeal, party specifically a by seeking leave to attention, court’s construing the rule brings the case that much should be presuming acquiescence for argument so the however, established, is denied. It is well stronger appeal when leave to precedential “has no appeal for leave to petition denial of a that the merits of the consideration of the way in no amounts to a effect and court’s ac appellate of the approval not “indicate and does case[ ]” No. District DePue Unit School v. Board Education Relph tion.” (1981). incongruous presume 436, 442 It is 103, 84 Ill. 2d rule, though even fails to amend when the court acquiescence op forgoes a direct when the presumed cannot be acquiescence rule. construction correct an erroneous portunity to of Rule analysis textual an alternative dissent also offers The 606(b)’s states, “the notice of pertinent part, sentence, which first days within 30 of the circuit court the clerk must be filed with if a motion appealed from or judgment entry of the after the final days after the filed, within 30 is judgment against directed added.) Ill. (Emphasis of the motion.” disposing of the order entry only 606(b). modifies “final” that the word suggests The dissent 2d R. second. Under not the “judgment,” the word first instance of final days of the filed must be within notice of reading, “a timely motion ruling on a after the days judgment, or within or interlocu final judgment, against any appealable reconsider directed reading is at view, dissent’s In our 3d at 497. tory.” appears, “judgment” second time the word fact that the odds with the alia, used, “the,” inter article which by the definite preceded it is noun following noun or that a to indicate function word “as a or mentioned something previously refers to someone equivalent Third situation.” Webster’s of the from the context clearly understood (1986). read only reasonable The Dictionary 2368 New International encapsulates sentence, then, judgment” “the is that first ing of the from.” judgment appealed “final the term 606(b) would reading appear note that the dissent’s of Rule We interlocutory foreclose from an order if no motion to any appeal so, because reconsider has been filed. The dissent claims this is not penultimate permits sentence of the rule from an interlocutory entry. order within view not days This sentence, ignores give the definite article in the first but also fails to any effect to If the appeals the word “final.” dissent is correct that case, from judgments interlocutory may, final orders in either itself, judgment days taken within 30 of the or order or within 30 entry motion, of an order disposing of the the word “final” serves no discernible It would purpose. appear without word “final,” the exactly results would be the same. remaining argument recognition dissent’s of a

invokes considerations of stare decisis. But stare decisis considerations do not apply judicial to decisions from other districts of the DeVoss, court. 150 App. The decisions District; the dissent relies on are not from the Second conse quently, obliged dissent, we are not to follow them. According to the DeVoss confuses the doctrine of stare principle decisis with the hierarchical decision making, by under which lower courts are bound higher decisions of disagree. ones. We Nowhere does DeVossassert governs that stare decisis a lower court’s treatment of the decision of court; higher a only asserts that stare decisis does not govern one appellate court district’s treatment of the decision of another appellate indeed, court district. This is not proposition; at all a controversial among the circuits of the United States of Appeals, Court which are analogous to Court, the districts of the Illinois Appellate “there is no rule of intercircuit stare Taylor Corp., decisis.” v. Charter Medical (5th 1998). 827, F.3d although Cir. course we defer to (see, other districts’ decisions on comity e.g., the basis of Villalobos Foods, Inc., (1998)), v. F.D.L. 298 Ill. we are free to disregard any them without concern for stare decisis. argues that,

The dissent further if we decline to follow the course set by progeny, Stokes and its apply only we should our decision prospectively in principles accordance with the in described Aleckson v. Village Park, Round Lake We decline to juncture. Aleckson, do so at this supreme our court reviewed our decision to one of apply our earlier decisions — Mueller v. Board Fire Commissioners, & Police (1994)—only prospectively. 3d 726 M uel —wh ich was pending decided while Aleckson was before ler this court —held that an administrative decision to the pertaining promotion police subject of a officer is to the Administrative Review (735 (West 1992)) Law seq. ILCS et and that an action seek 5/3—101 days after the

ing review of such a decision must be filed within 35 of the Administrative Review Law Application decision is issued. plaintiffs’ action. We Aleckson would have resulted dismissal unjust plaintiffs because the had concluded that to do so would be prior with the law as it existed to compliance filed their action Mueller.

Our court stated: “Generally, opinion, when a court issues an decision retroactively prospectively.[Citations.] presumed apply both of circumstances. presumption types That can be overcome two First, may expressly state that its decision issuing court itself Second, only. a later court applied prospectively [Citation.] will be circumstances, presumption override the may, under certain effect, at least previous opinion retroactive declining give The before the later court. respect parties appearing with category. Accordingly,we will falls under the latter present case in which a to cases which involve situations confine our discussion prospec decision deciding give previous later court is whether to a Aleckson, only.” 176 Ill. 2d at 86-87. tive effect power court had the argued that defendants flatly effect. The Aleckson give only prospective a decision Aleckson, 2d at 91. rejected argument. ap- clearly proposition for the

Although Aleckson stands effect, it only prospective a decision power give court has the pellate necessarily presupposes power seem that the exercise of that would jurisdic- over the Our jurisdiction court has all, thing It is one to hold is, power basis of our to act. tion after ap- appeal may to hear an reviewing jurisdiction court that has that a hold that quite It is another to only prospectively. decision ply prior lacking may nonethe- jurisdiction has found its reviewing court that theory empowered that it is jurisdiction its on the less act outside To so hold would only prospectively. apply jurisdictional decision none ex- jurisdiction where reviewing court to exercise empower the without clear in this manner to extend Aleckson ists. We are hesitant court. direction from our case, in this however. question the definitively need not resolve

We may be taken demonstrates, prospectivity question the As Aleckson Moreover, it has appropriate. necessary as is subsequent cases up prospective when that, those occasions “[o]n been the law long the case still controls warranted, holding of the court plication deprive render it dictum bar; the rule would apply at to not old, erroneous questioning his efforts in the fruits of challenger 139, Investments, 126 Ill. 2d Oil Co. v. W.C.P Carey rule.” John (1988); Department Transportation People see also ex rel. v. Hun zicker, 3d 588 if to rule even we were now holding obliged that our should be we would still be prospective, to dismiss the State’s appeal. sum, the order quashing suppressing defendant’s arrest and judgment,

evidence was not a final so the State’s motion to reconsider did not toll 30-day period filing period a notice of That expired 11, on September 2006. The State’s notice of appeal, filed on 23, 2006, untimely October jurisdiction and did not confer on this court. reasons,

For the foregoing we dismiss this appeal for lack of jurisdiction. However, because creating split authority, we are because a substantial number of cases involving this issue are cur rently have, pending, motion, we “on our own granted a certificate of (eff. 2006)] importance 6, [Ill. S. Ct. R. 316 Dec. and directed the same Butchek, to issue.” 391, (1974); 22 Ill. App. 3d see also (1998) Comm’n, Scott v. Industrial 184 Ill. 2d (noting without objection appellate court’s sua sponte issuance of certificate of importance).

Appeal dismissed. JOHNSON, J,

GILLERAN concurs. O’MALLEY,

JUSTICE dissenting: poses This case question whether the State’s filed motion to reconsider will toll 30-day period in which to file a notice of appeal from the grant trial court’s of the defendant’s motion to suppress evidence. The dissent, issue between the majority and the however, is whether this court should follow the doctrine of stare decisis, even though, arguably, the rationale underpinning rule is wrong, but well established. Central to the doctrine of stare decisis is usually, the idea important it is more that the law be settled than it be correctly. People Jones, settled 207 Ill. 2d (2003). Because the tolling rule has been unquestion established and ingly followed, court, even years, respect for more than 30 fully dissent from majority’s Additionally, alternative. I offer several rationales independently support tolling rule as it is now articulated. my disagreement

As with the majority is its abandonment of precedent, settled I first trace history precedent. of that Then I discuss stare decisis and how the precedent implicitly has been fol- Last, lowed. I offer an interpretation alternate of the rule that avoids necessity abandoning the long-standing tolling rule.

478

A. Stare Decisis 1. of the Rule History Tolling majority comprising identifies all of the correctly The the cases reported expressly question cases that have considered the of whether grant the motion to reconsider a of a defendant’s motion State’s 30-day period filing evidence will for a notice of suppress toll the jurisdiction. I note of peal to vest the court with that each appeal holds that the motion to reconsider tolls the time to cases of days and that a notice of filed within 30 after resolution appeal timely, the motion to reconsider will be deemed or else cites to a case (1975) (time 634, Robins, so 33 Ill. 636 holding.2 People App. See v. 3d of period filing appeal disposition for notice of commences with 296, reconsider); People Stokes, App. v. 49 Ill. 3d 298 motion (1977) Robins); Clark, 46, (same, relying People 80 Ill. 3d App. on v. (the (1979) when 48-49 defendant’s notice it was filed reconsider, of the of the motion to within 30 denial defendant’s (1983) Robins); McBride, 75, 3d relying People App. on v. 114 Ill. 80 (the file a may suppression State motion to reconsider an order relying Wagner, notice v. 100 Ill. appeal, People it files a on before (1981) 1051, remedy is exclusive avail App. (appeal 3d not the order; the State move challenge suppression to the State to able Stokes)); Robins ruling, relying court to reconsider its on and trial (1985) (time Rimmer, 107, filing 3d for App. v. 132 Ill. People motion commenced with the of the State’s disposition notice Matre, reconsider, Van relying Wagner); People Clark and v. on (1988) (same, McBride, 201, Rimmer, relying on App. 3d 202-03 (1992) Robins); Smith, 121, Stokes, 232 Ill. 3d People and v. Williams, (1990)); (same, People on 138 Ill. 2d 377 relying (2004) Matre). (same, relying on Van Burks, unreasonable, position, I concede is not is majority’s shaky, authority upon if the edifice has been founded which reexamination. As can subject then edifice itself is unsound (all above, except of the cases string the citation seven seen from Smith) Robins, directly on that relies on rely directly on a case Smith, contrast, court’s decision by relies on our Robins. focus on and Smith. I will therefore Robins Williams. notion: incorporated

Robins at the level. of errors trial policy clearly “Public favors correction is an appropri held that a to reconsider previously have motion We (of sake, by include, completeness’ six identified defendant cases 2I four) cases additional identified considers two which the majority. the trial directing ate method to be utilized in the attention of (Childress judge claim of error. v. State Farm Mutual [a] (1968), AutomobileInsurance Co. 239 N.E.2d 492.) the denial of that mo The time for commencedwith Robins, tion 3d at 636. [to reconsider].” This from the concept apparently fully developed arose formed and analysis propriety, civil law. offers no or consideration of the if Robins any, engrafting from the civil law onto the principles derived hand, pertains regulation criminal law. On the other the issue courts, errors, and a would ability court’s to correct which vary significantly not seem to between the civil and criminal arenas. Robins, then, holding The force of the should be commensurate with the reasoning. purports soundness of its Robins to base its hold ing on the “[p]ublic policy favor[ing] correction of errors at the trial level.” This notion of providing opportunity quick expedi the for a and tious method to correct repeatedly errors short of has been by Mink, confirmed and endorsed our court 141 (Peoplev. Ill. (1990) (“A 163, 2d 171 power court a criminal case has inherent Heil, reconsider rulings”); 458, and correct its own People v. 71 Ill. 2d (1978) (relevant 461 statutes and court rules “demonstrate the intent that criminal as well as given civil matters the circuit court be the opportunity to reconsider appealable judgments final and orders within entry”)) of their and (People v. Bryant, (2006) (“Public 54, 60-61 policy favors correcting errors at level, the trial timely and a motion to appropriate reconsider is an method to direct the trial error”); court’s attention to a claim of People (1993) Hess, 241 Ill. App. 3d (agreeing postsentencing with motion requirement preserve sentencing error for due to policy that “a trial court given opportunity should first be an to cor any rect error might that have occurred so as to avoid needless (1982) peals”); Swiercz, (“public level”)). policy favor[s] that errors be Indeed, corrected at the trial supreme court rules expressly themselves allow a postjudgment 606(b). motion to toll the time for appeal. Admittedly, 210 Ill. 2d R. Bryant and Swiercz derive the public policy rule from Robins or cases expressly Robins, on relying that, but this does not diminish the fact more years than 30 after promulgated, Robins was courts still invoke public policy my view, then, set forth in logical Robins. force motivating the Robins rule is compelling definitely clear and retains force and today. relevance from infirmity Whatever arises importation Robins’ of a civil rule into a criminal context is more than offset expression its viable of public policy motivating as the factor behind the rule. Robins good remains law and the rely cases that on persuasive by likewise rendered the force of Robins

Robins are holding. majority directly

I does not assail Robins. recognize from Robins. Instead, Stokes, tolling it which derived its rule attacks factually distinguishable because Robins involved It finds Robins to be interlocutory sort of a final order while involved the same Stokes suppress evidence—that is grant order—a of a defendant’s motion to therefore, on majority, Stokes’ reliance According at issue here. importation of civil suspect both for the unpersuasive Robins is disagree. expression Just as Robins’ the factual difference. law and vitality, so too does tolling behind the rule retains public policy of the case, public reasoning is the of the basis explanation. It Stokes’ force, solely If gives provenance. not policy, that rule, then it would legitimate policy no rationale behind there were displaced. The fact that it has superceded have been or otherwise that it was an justification years suggests later legs to be cited as regardless then and now. apt expression public policy tolling proposi- for the cited Childress appropriately whether Robins rule, behind the tion, clearly expressed public policy analytical support for Stokes. public policy provides the valid ground apply on the if it is majority The also assails Stokes reconsider, motion to appeals, then the principles civil to criminal order, interlocutory is ineffective against directed being a motion filing a notice of 30-day period time running toll the Nissan, 354 Downers Grove Kay’s cites to Craine v. Bill (2005), which, turn, upon Trophytime, relies 1023, App. Ill. (1979), 335, proposition the Graham, 335-36 for App. Inc. v. to toll the time a motion to reconsider is ineffective however, Trophytime, Both Craine and interlocutory from an order. (188 307), allows Ill. 2d R. which to Rule 307 brought pursuant were right. The rationale as a matter of interlocutory appeals for certain Rule orders to which interlocutory of type the rule is that the behind par one of the impact upon “ordinarily has a substantial pertains time for 336. To allow the 3d at Trophytime, ties.” impact of burden or substantial the harsh prolong to be tolled would frustrating the thereby parties, on one of the interlocutory order interlocutory 307, review of prompt to allow a purpose of Rule words, public 1028. In other Craine, Ill. 3d at order. in the parties on the mitigating the burden policy consideration (or speci interlocutory order type other order injunctive case of an 307) allowing trial preference public policy trumps in Rule fied appeals. needless prevent errors in order to correct their courts import of Craine majority’s interpretation with the disagree Trophytime impacts as it the rule set forth in and Robins. It is Stokes easily explained by looking public policy motivating to the each line of The public policy motivating apply decisions. Craine does not evidence, defendant who successfully suppress moves to because of society’s strong having interest the trial court correct its own er rors, if any, granting suppress. motion to

The majority following worries that the well-settled rule is inimical to a defendant’s right charges against expedi to have the him tiously significant resolved. 382 Ill. 3d at 475. This ais concern. majority recognizes troubling issue raised continued who, incarceration of a defendant while the motion to reconsider is pending, cannot be released on bail versus the defendant generally who is entitled to be custody released from while the State’s appeal is pending. However, 382 Ill. App. 3d at 468. when a motion to suppress granted, is the result is that guilty evidence of a defendant’s conduct is suppressed because the defendant’s rights constitutional were violated in some manner. The getting societal interest in the sup pression ruling right Moreover, manifest. allowing only the defendant to avail him- or herself of the trial court’s inherent error- correcting powers system biases the in favor of defendants. If defendant can reconsider, file a motion to then only those erroneous decisions against corrected; defendants will be the erroneous decisions against the State will escape may review. This be a desirable bias to system; believe, it however, not be. I that it is not this court’s call—I would leave to the supreme court or to the legislature to decide systemic whether such a bias should be created.

I would accept the Robins, Stokes, statements of the rule in Clark, McBride, Rimmer, Matre, Van and Burks my at face value. In view, they are underpinned by a proper expression and valid public policy to which gives too little weight analysis. in its Smith, the court Williams, relied on 138 Ill. 2d for the proposition “[a] motion for ruling reconsideration of a granting suppression motion will toll the time to file a notice of peal.” Smith, 232 Ill. App. 3d at The majority 127. notes that “Wil liams held where the State does not from sup an adverse pression ruling or seek reconsideration of it during taking the time for appeal, it cannot later relitigate the issue in the trial court.” 382 3d at reaching however, 470. In holding, Williams also reasoned that “statutory judicial policy favors giving a circuit court ‘the opportunity to appealable reconsider final judgments and orders within days 30 of their entry’ long as as no notice of has yet been Williams, filed.” Heil, 138 Ill. 2d at quoting 71 Ill. 2d at (It 461. should be noted that Williams did not involve a successful mo reconsider, fol trial court to timely motion suppress,

tion to a denial of the days of the filed within by lowed a notice motion instead, a successful reconsider; Williams involved motion appeal, and of the appeal, notice of abandonment suppress, a (held consider the attenuation improper) to be the State’s motion arrest, sup after the year more than a from an unlawful a confession Williams, at 382-85. granted. had been pression motion bar.) Smith, the case at distinct from procedurally Williams is policy” “statutory judicial then, statement of relied on Williams’ at 127. Smith, tolling-rule holding. support its “[t]he Williams, turn, proposition Heil for the relied on court], supreme statutes, by [the promulgated and the rules relevant as civil matters in criminal as well the intent that demonstrate appealable to reconsider final opportunity given circuit court be Heil, 2d at entry.” of their orders within 30 judgments and 606(b). Williams, (Again, like others, Ill. 2d R. 461, citing, among initially distinct, defendant’s arising from a procedurally so too is Heil which, at grounds, trial speedy motion to dismiss on successful reversed its State, trial court reconsidered motion public expressed Williams Obviously, Heil and ruling.) original supreme judgments. appealable to final and policy in relation policy. public not, however, exposition finished with its court was public policy Next, Mink, court found that interlocutory judg to include its rationale by expanding served better court in a criminal “[a] stated that Mink, our ments. In rulings, its own and correct to reconsider power has inherent case authority. it such granting or rule of a statute even in the absence its decisions and correct to reconsider power A court’s [Citations.] Mink, Ill. 2d final, judgments.” well as interlocutory, as extends to trial distinct, from the arising (Mink, too, procedurally at 171. grant the reconsideration, of its decision reversal, after court’s order.) reaching its conclu trial, interlocutory new an defendant a Heil, 71 Ill. 2d court, upon Mink relied of a power inherent sion on the at 461. unambiguous expres- Williams, contain clear

Mink, and Heil to reconsider trial court favoring allowing the public policy sions of interlocutory reconsidering includes policy rulings, public and this policy majority implement by cited The cases judgments. motivating 606(b). public policy Based on the valid Rule reference to I would majority, of the cases considered tolling rule in all reconsider timely motion to that a holdings to their consistent adhere taking tolls the time suppress motion to of defendant’s grant the majority my public policy The takes issue with elucidation of rule, no basis in the underpinning tolling contending that it has supreme exactly court rules. See 382 Ill. 3d at 468. This is not App. rationale, majority’s If I to it is not so may presume true. restate Rimmer, Robins, Stokes, in tolling expressly much that the stated Matre, Smith, court supreme Van and Burks cannot be traced to clear Williams, Mink, Heil, statements in precisely public policy of that analyze appellate textually but that the court cases did not bother to Rule 606 in I announcing tolling agree majority rule. with the that note, however, this is a I linked the problem. expressly that five cases (Robins, 636; Stokes, tolling App. rule with Rule 606 33 Ill. 3d at 298; Clark, 48-49; Matre, App. Ill. 3d at Van App. 80 Ill. 3d at Ill. 203; Burks, 754), App. App. only 3d at 3d at one referenced (Smith, public Rule 604 and the court policy statements 127), only Ill. 3d at and two relied on the other (McBride, 79-80; Rimmer, cases 114 App. Ill. 3d at 3d at 111). Thus, though challenge legal reasoning even we can employed Robins, Stokes, Clark, Matre, Burks, Van challenge we cannot the fact they, rightly wrongly, interpreted that Rule 606 to contain Heil, rule that those cases set forth. also note that 460-61, expressly others, 2d at among considered Rule in conclud public that the policy allowing of the state favored a trial court to reconsider, correct its errors via a motion following right to which the (Williams would remain undisturbed. and Mink did not link their public policy rules, statements of court but 171.) Williams, to 394; Mink, Heil. 138 Ill. 2d at 141 Ill. 2d at majority questions further public policy underpinnings tolling rule, asserting despite “[a] Mink’s statement that a criminal case power has inherent to reconsider and correct its own rulings, even the absence of a statute or rule it granting authority,” such power interlocutory, “extends to as well as final, (Mink, 171), judgments” 141 Ill. 2d at Mink nevertheless “said (382 470). nothing public policy” about Ill. 3d at While Mink did preface not its pronouncement powers about a court’s inherent with words, “this public policy,” any is the state’s I fail to see other way to interpret Mink’s statement about a inherent powers court’s than as a statement about If public policy. reading I am too much into Mink, majority then the is reading view, cases Heil, my 2d 461-62.3 In these

in the circuit court.” 71 Ill. at for the rule. provide ample support symmetry between the civil Additionally, majority demands (“if any are App. Ill. 3d at 470 there justice systems. criminal 382 power court’s inherent policy implications of a trial public should be the interlocutory rulings, implications reconsider its This power”). the same in civil a trial court has same a case where reasoning, the State terms. Under this argument fails on its own an unsuccessful civil acquittal, an because should be allowed to fundamentally, result. More right an adverse plaintiff has 30 side, of more than however, period criminal five cases over on the ap applies an determined that years expressly have suppress; motion to interlocutory grant of a peal by the State from the stated, nearly 30 period over a side, expressly cases have on the civil will not toll interlocutory an order a motion to reconsider years, 3d Trophytime, 73 Ill. bring appeal. an See the time in which to justice system is Craine, at 1026. The civil 335; 354 Ill. 3d at system. I am not justice criminal different from the inherently bring an may State that, when the in those few situations troubled error- court’s inherent itself of the trial also avail peal, right bring jeopardizing power without correction the State’s cited cases which majority further notes that have 3The and its notice raised and resolved motion to reconsider was 606(b). at 471 filed, provided by Rule the 30 all within done, it be done. however, but must whether this can point, The is not n.1. way the motion to dockets, then if it must be done court With crowded impaired as a efficiency will be judicial likely problematic, and reconsider error-correcting ability. forgoing the trial court’s the State result of

485 My point, ultimately, my is not that I am 100% correct in reason majority and the wrong (although is 100% seems to lines), think along those but rather it is we where have well- has, established rule of law that rightly wrongly, engrafted been rules, supreme onto the court itself supreme where court has expressly passed upon public policy reasoning underlying issue, quick court rule at we not be so should delete rule and unsettle the law a heretofore well-settled and uncontrover niche, all, sial important appellate jurisdiction. and one as as After “appellate jurisdiction strolling through is akin to (Physi a minefield” 443, cians Insurance Exchange Jennings, v. (2000)), and I purpose strewing yet see no useful more mines about. This my point. consideration leads to next Implementation

2. Rule Tolling principle strongly supports following stare decisis further Burks, Smith, Matre, McBride, Clark, the holdings Rimmer, Van Stokes, Robins, expressions as well as the clear public policy Mink, Williams, and recently explained Heil. Our principles behind stare decisis: ‘ “The “expresses doctrine of stare decisis the policyof the courts ’ by precedents to stand points.” People and not to disturb settled Caballes, 282, (2006), v. quoting George, Ill. 2d v. Neff 306, (1936), grounds by 308-09 overruled on other Tuthill v. ‘ (1944).

Rendelman, words, 387 Ill. 321 In other question “a once deliberately examined and decided should be considered as settled ’ (Wakulich Mraz, and closed to further argument” v. 203 Ill. 2d 223, (2003),quoting Burckhartt, (1921)), Prall so that the change erratically, law will not but will in a develop principled, intelligible Colon, fashion.” 225 Ill. 2d 145-46 admonished, however,

Our supreme court that the doctrine of stare decisis blindly mechanically. should not be followed and mistake,

“If it is clear a court has made a it will not decline to cor it, rect if acquiesced even the mistake has been reasserted and in many years. said, for depart [Citation.] That this court will not merely from precedent might because it have if decided otherwise reiterated, question recently the were a new one. [Citation.] As we ‘ ’ any departure “speciallyjustified.” from stare decisis must be Suarez, 37, (2007), People People Sharpe, v. 224 Ill. 2d v. quoting 50 (2005). 481, prior 2d 520 decisions should not be Suarez, ‘good overruled absent ‘compelling cause’ or reasons.’ Sharpe, Ill. 2d at In quoting general, 216 Ill. 2d at 520. a settled rule of law that a does not contravene statute or constitutional likely unless to

principle doing should be followed so is result public to interests. Good prejudicial [Citations.] serious detriment depart decisis when deci governing cause from stare also exists Colon, badly sions are or reasoned.” 225 Ill. 2d at 146. unworkable addition, that of stare is “[t]he In this court has noted rule decisis administration justice.” Ap sound in the of upon principles founded McFall, pelhans course, poison, major one is another and the

Of man’s meat man’s it ity easily inexplicably assert Robins is because can that flawed (and repudi into the that is later imports principle criminal law a one Craine) reasoned; law; from is poorly ated in civil Stokes Smith that stand for relied I principle upon. relies on a case does not the and, obviously, I do it questioned reasoning above not view have “compelling depart as the “good providing cause” reasons” from 30-plus years for consistently previous rule set forth decisis, all, under of stare through Robins Burks. After the doctrine it rule be than important circumstances is more that the settled most correctly. Jones, it 207 Ill. 2d be settled at 134.

Instead, of Robins majority’s departure principles from Burks, correctly, through arguably settling while the rule nevertheless past system functioning 30-plus that has been unsettles than, years public no or the other upon and confers benefit courts “plain” language abstract sense that the perhaps, an and academic 606(b) given unambiguous long being plain is at last Rule (Of course, Rule majority does not contend that meaning. even 606(b) interpretation and I offer the rule ambiguity, my is without below.) majority’s rejection B not the the settled part Whether or in serious through in Robins Burks will “result detriment rule of law 146), (Colon, I Ill. 2d at do believe prejudicial public interests” is both detrimen upheaval to the established upset procedure unnecessary. (“appellate 3d at Jennings, tal and See minefield”). short, through jurisdiction strolling is akin harms are actually those adoption causes abandon and can discern precedent to motivate a court to supposed will precious procedure in the way improvements little majority’s rule. gained adopting from new argument observing in favor of stare majority shrugs off DeVoss, 38, 40 with a citation to decisis (“we (1986) horizontal, district-to- compelled are not a rule of District”). Fourth decisis the decision of the adopt district stare fact, and, in of stare confuses does not state the doctrine decisis DeVoss Our supreme of the Illinois courts. principle with a hierarchical II court in there but one long court has maintained that 487 Granados, 172 Harri linois. 371 Justice that, explained though appellate son even court is divided into five judicial districts, nothing appellate the districts have to do with the authority, political court’s but instead the five districts define the judges units from which the courts are appellate Park, 82, 94 Village selected. Aleckson v. Round Lake 176 Ill. 2d (1997) (Harrison, J., court, A specially concurring). circuit on the hand, being appellate other inferior to both the court and the court, by appellate is bound the decisions of the court of the district in Aleckson, which the circuit court sits. 176 Ill. 2d appellate at 92. The courts, being coequal, similarly by are not bound the decisions of pellate Aleckson, courts of other districts. 176 Ill. 2d at 92.

principle courts, is understood in hierarchy terms of the of the Illinois with the being by inferior courts bound decisions of superior courts. decisis, contrast, by Stare is principle applies singular that to a courts, coequal under previous which the court will follow rul ings. nothing There is in the definition of stare decisis that binds court; always a court is ignore precedent free to “good cause” or “compelling reasons,” Colon, such as an unworkable decision.

2d at 146.

This distinction between the principle hierarchical and stare decisis important, is because the doctrine of stare decisis lends a “should” to inquiry of “can” by majority used majority this case. The demonstrates change that we can interpretation settled of Rule 606; stare decisis causes me to ask change whether we should settled rule. The short shrift majority gives to which the the doctrine of stare decisis is might agree unfortunate. While I majority with the that its reading of Rule 606 employed is more faithful to the words the text of the rule than is the current tolling engrafted onto Rule by years law, adopt reading case I would years absence of those 30 of case That law. rule has been employed continuously years for 30 workability is a testament to its adequate functioning. Thus, my point here is because the broken, rule is not part and because it has been of Illinois case law (despite analytical the obvious shortcomings identified majority) for more than years, Jones, it should be followed. See (under Ill. 2d at 132 decisis, the doctrine of obviously stare even er roneous precedent should be if point followed the has been settled on basis). a long-standing responds decisis, comity, that it is not stare but

governs our adherence to other districts’ decisions. This view suggests that we owe no more deference to the decisions of the First District of the Appellate Court of Illinois than we do to the decisions of the First See Black’s Law Appeal of California.

District the Court (6th 1990) (judicial comity principle by which Dictionary ed. effect to the laws and jurisdiction give of one state or will “courts another”). identity our as one decisions of Given judicial districts’ routinely rely we on other court and the extent to which event, little decisions, any practi- I this view. In it makes disagree with surely then this is a case comity governs, here. If is what cal difference it. in which we should exercise is not that the rejoin

I that the would suspect District, expressly it has never been in the Second because well settled analysis the lack of at majority might say Or considered. soundness, and that tolling rule is a fatal flaw to its inception of the following those cases that justification depart to from this is sufficient My necessarily disagree. not the issue. do already have decided making is appellate it is this court that disagreement, again, is that rule of law depart to from a I believe that a decision the decision. properly within years more than 30 is one settled for not this court. of our court and province 606(b), I reading of Rule piqued by majority’s interest My aberrant or whether to see if the cases are extensively have researched rule over implementing pattern there is a consistent has uncovered no less My research years since Robins and Stokes. makes clear recitation of facts 14 cases in which the reported than toll application of the accepted implicitly the that the this, from originate 14 cases majority of the Interestingly, rule. defense, however, in none of I note that In our the Second District. the timeliness of regarding issue jurisdictional cases was a those Flores, App. 371 Ill. People See v. raised or considered. appeal notice of (motion (2d 2007) 20; April on motion quash granted to 212 Dist. 3d 28; July on notice days and denied timely filed within 30 to reconsider (dates opinion, but given reported not August filed on 5 appeal App. 3d Babolcsay, v. 368 Ill. People appeal)); from record on taken (2d 2006) (motion 27; to April motion granted to suppress Dist. 712 days filed within 30 14; appeal denied June notice reconsider (2d 2003) (mo Brown, 3d 617 Dist. thereafter); App. 343 Ill. People v. 14 filed June 1; to reconsider May motion suppress granted to tion thereafter); days 19; filed within 30 appeal notice of July denied 2003) (motion (5th sup to Dist. Grove, App. Ill. 3d 466 v. 341 People denied 19; motion to reconsider timely September press granted Moore, 11); v. People filed December 14; appeal notice of November 2002) (motion (5th granted suppress Dist. 3d 1047 App. 328 Ill. 5; appeal May notice denied 13; motion to reconsider timely March Martinez, App. Ill. 3d thereafter); 307 People v. days filed within 30

489 (5th 1999) (motion 14; timely 368 Dist. to suppress granted November 12; January appeal January motion to reconsider denied notice of filed (2d 1997) (motion 13); Greene, People v. 289 App. Ill. 3d 796 Dist. 13; suppress granted November timely motion to reconsider denied 30; thereafter); January appeal days notice of filed within 30 v. People (2d 1996) (motion Blakely, App. 278 Ill. 3d 704 suppress Dist. granted August 9; 30; timely motion to reconsider denied October thereafter); notice of appeal days People Pickens, filed within 30 v. (5th 1995) (motion App.

Ill. suppress granted Dist. October 27; timely 4; motion to February reconsider denied notice of thereafter); Hieber, filed within days v. People (2d 1994) (motion 24; Dist. suppress granted timely June motion to 10; reconsider denied August days notice of filed within (2d 1993) (mo thereafter); People Smith, 3d 351 Dist. 13; tion to suppress granted September timely motion to reconsider 10; denied thereafter); December notice of appeal days filed within 30 (5th 1993) (motion Jose, 3d 104 Dist. to sup press granted 6; September motion to reconsider filed October 2 and 29;

denied October thereafter); notice of filed within 30 (4th 1992) Kelk, (motion People v. 3d 797 Dist. to sup press granted 23; March 16; motion to May reconsider denied notice of appeal thereafter); filed within (1st Duncan, People v. 1982) (motion App. Ill. 3d 701 Dist. granted to suppress February 13; timely 12; motion to reconsider denied March notice of filed 9). April after cases, which, This list of rule, under the majority’s the mer, jurisdiction, court lacked Burks, does not include Rim Stokes,

or all of which held that a motion to reconsider will toll the time for In addition to the 14 reported cases in which the recitation of facts proves jurisdiction a lack of under the majority’s rule, I uncovered another 59 reported cases in which the trial granted court a motion suppress, the State’s motion to denied, reconsider was and the notice of was deemed to be timely. These cases did not raise jurisdiction, or consider but the recita tion of facts specify did not They time frame. extend from 1978 through course, 2007. Of I do say not and cannot they run afoul majority’s rule, but I think significant that a portion them probably do.

In fairness, the interest of I my note that research uncovered four cases in which the suppression, reconsideration, and notice of were accomplished all days, within 30 presenting thus no issue under (5th the majority’s Gott, rule: People v. 346 Ill. App. 3d 236 Dist. 2003); (2d Evans, People v. 314 App. 2000); Ill. 3d 985 People Dist. v. (2d DeBlieck, 181 Ill. App. 1989); 3d 600 Dist. v. Zeigler, (2d 1982). App. 3d 783 Dist. illustrate that the Stokes extensive citations

My point time in which to rule, will toll the timely motion to reconsider within instinctively internalized long standing and almost peal, is both however, fair, none of the cases To be practitioners. its the law and (382 Second 488-89), particularly the 3d at cited above addressing in this are cases, raised the issue we explicitly District verify obligation court’s despite each case. Yet it is instructive Smith, 228 Ill. 2d every (People case jurisdiction its instead, and, they fol lacking (2008)), thought jurisdiction none line of cases. the Robins-Stokes express holding of implicitly lowed the toll by disturbing accomplished to be purpose I can see no useful new rule would Moreover, majority’s adoption rule. ing arrest, ensuring that suppression the law of tremendously impact while go would uncorrected favoring defendants erroneous decisions corrected. would continue favoring the State erroneous decisions view, my general. the law in only ill for This imbalance can bode continuing to in favor of weigh decisis of stare the considerations Burks and through holdings of Robins and Stokes adhere rule. strongly against repudiating majority, of stare decisis: point topic under the I make one last develop in section argument that acquiescence responding 16-year-old with a below, supreme dispensed court B noted that our justi would have acquiescence principle despite the fact that the passage 473-74. This 3d at adherence. fied its continued that it is our my overriding point deftly illustrates majority in the toll reject or to follow should decide whether court who rule, the inferior courts. not B. Construction majority is with with the disagreement My final area 606(b). it is correctly notes that majority The of Rule construction same interpreted in the rules are supreme court that the fundamental 2; People King, Ill. 2d R. manner as statutes. this, as the as well acknowledges rule, is to which construing a statute goal of primary enacting the statute intent in drafters’ effect to the give ascertain indica The best at 878. King, rule. court rule, plain its given of the language is the drafters’ intent tion of the 3d at 878. Where meaning. King, ordinary and plain its given must be unambiguous, it and of a rule is clear language aids of tools and to other resort ordinary meaning without and (2004). In Bates, 212 Ill. 2d Marriage In re construction. of employed to be are aids words, of construction the maxims other way. in some language ambiguous where the of the rule is found to be Land 202 Ill. 2d City Chicago, v. Board Education of of of (2002). Here, majority recognize fails to this follow-on does 606(b) Rule expressly language not make the determination that the of unambigu is the rule is ambiguous. seemingly maintaining While inevitable, majority ous and its construction of the rule is employs provision of more principle specific construction that a trumps general provision ambiguity a more to resolve the of conflict possibility “plain” results that the admits is a if the language given is major effect. 382 Ill. 3d at 471-72. 606(b) ity finds that ambiguous employs Rule is tools of construc tion ambiguity. to resolve the

Accepting purposes argument that the rule is ambiguous, propose construction, principle namely, principle different acquiescence. I realize that it is a weak reed on which to base intent, but, here, determination of the drafters’ appropriate. is Rule 606 has 1, 1971, been amended nine times since July 1970. As of Rule 606(b) was amended to state: appeal days “The notice of shall entry be filed within 30 from the ***

of the order or judgment appeal from which the taken is ***. may appeal [N]o be taken from a reviewing trial court to a after the expiration days entry of 30 from judg of the order or 606(b). ment from which the is taken.” 50 Ill. 2d R. Interestingly, the first sentence “judgment.” refers to “order” or a 30-day limitation likewise refers to the “judg- “order” or the ment.” 1, 1975,

Rule 606 was next July changes amended effective but no 606(b). 606(b). were made to Rule 58 Ill. 2d R. Robins was issued in 606(b) interpreted Rule to allow a motion to reconsider an interlocutory judgment to toll the time to appeal. February Effective 606(b) 17, 1977, again amended, Rule 606 was taking with Rule more substantially today: the form in which it exists 604(d),

“Except provided as in Rule the notice of must be filed with the days clerk of the circuit court within 30 after the entry of the final judgment appealed from or if a motion directed against timely filed, the judgment days entry within 30 after the *** disposing the order [N]o the motion. be taken from a trial court to a reviewing expiration court after the of 30 entry from the judgment order or from which the 606(b). peal is taken.” 65 Ill. 2d R. 606(b)

The evolution of Rule judg demonstrates that the “order or ment” language sentence, has been removed in the replaced by first the same language today, used “final judgment.” The final sentence judgment” language, today. as it does

continues to use the “order the an inadvertent holdover from suggests perhaps This it is harmonized with the older versions of the rule that has not been 1977, May In Stokes was is terminology developed. of the rule as it Robins, reconsider an sued, holding that a motion to relying on and bring in which to an interlocutory judgment 30-day will toll the time 461, endorsed 1978, Heil, supreme 2d at court appeal. In 71 Ill. interlocutory judg allowing a trial court to reconsider the idea of considered Rule supreme expressly In court ruling, ments. so 606(b). Heil, Ill. 2d 461. at 15, Ill. 2d effective October 1979. 73

Rule 606 was next amended 606(b) was is did not affect Rule at all. Clark R. 606. The amendment 1979, reconsider tolls the holding that a motion to sued in December Clark, 48-49. appeal. time to 80 Ill. 3d at 1, 1984, 1983, July Effective Rule 606 was McBride was issued. 606(b). amended, Rule the amendment did not affect again but 606(b). unchanged. years, next 15 the rule remained 2d R. For the Matre, Williams, Mink, time, Rimmer, and Smith Van During that the idea that a agreement with expressed issued. All these cases were appeal. the time to timely motion to reconsider will toll 606(b) to take its 1, 1999, Rule was amended December Effective 606(b). In 606(b); see also 210 Ill. 188 Ill. 2d R. current form. issued, timely motion 2005, holding February Burks Burks, 754. 3d at appeal. the time for reconsider tolls 606(b) unchanged. Rule 606 left Rule subsequent amendments to Two 606(b) (eff. (eff. 606(b) 13, 2005); Sept. R. Dec. Ill. S. Ct. Ill. S. R. Ct. 2006). recitation, rule has been tolling it is clear that the

Based on this (even Mink, Wil court in by supreme endorsed uniformly used Heil). time, amended supreme court has liams, From time to judicial 606(b), way disapprove as to but never such Rule toll the to reconsider will that a motion interpretations holding 606(b), Rule ad Further, each amendment of after time for then, history, on this rule. Based cases reiterated ditional 606(b) and follow acquiescence to Rule the doctrine of apply would See, e.g., through Burks. consistently iterated in Robins tolling rule (2007) (where judicial Downs, People amendment, drafters provoked of statute has not interpretation of the intent exposition judicial in the acquiesce presumed are rule). has had supreme court Obviously, or the behind the statute (from the State’s deciding its rules to amending ample opportunity Rule any misinterpretation to correct suppress) motions to peals on 606(b). so. yet not done It has majority unimpressed principle acquiescence. with the

Nevertheless, by juxtaposing supreme the dates which the rule, rule had been expressing modified with the cases court cases endorsing policy reasoning behind rule, the tolling I have the issue settled demonstrated that could be That, course, under the acquiescence principle. does not mean the principle is problems applying not without in the context of it to the supreme court majority any rules. Neither I nor the have found case applying principle this This me suggests court rules. either that it applied nobody attempted should not be or that else has it. The clearly points upon out the weakness of reliance However, principle alone. principle acquiescence along with the principle authority of stare and provide decisis identified above significant tolling reasons to continue to adhere to the rule. decisis,

In addition to the principles acquiescence of and stare principles other of construction in further militate favor of continued tolling observance of the rule. court This has stated constru rule, an ambiguous supreme beyond court “the court look language to purpose.” People consider the rule’s King, (2004). doing, In so the court is to ascertain the drafters’ scheme, nature, intent “from a consideration object, of the entire its and consequences resulting construction[ ].” from different King, scheme, nature, 3d at 878-79. object The and of Rule 606(b) explored has been pause above. I now to consider the conse quences varying of the proposed constructions here. construction,

Under the majority’s any State from the grant of a defendant’s quash suppress motion to arrest and evidence must perfected days, activities, within 30 and all collateral like motion a reconsider, completed must be before that time as well. Under the unbrokenly rule, heretofore applied tolling a motion to reconsider will toll the time for appeal upon; 30-day until it is ruled then the clock vacuum, commences for the State to file notice a of a neither construction significantly stands out as better. The rule policy allowing advances the of the trial court to exercise its inherent error-correcting power judicial economy by and thus enhances potentially weeding out from appeal those cases in which the trial court realizes an error. The majority’s promptly construction works to uncertainty resolve criminal matters and to the inherent that the ease tolling rule impose upon operate would a defendant. do not in a We vacuum, weight years however. The of the in which the 30-odd applied among has been has settled expectations created practitioners inevitably before our the rule Changing upset courts. will expectations. those has authority

It has been held that a court the inherent given only prospective applica determine whether a decision is to be Aleckson, 91; Comm’n, Rights tion. Ill. 2d at Larrance v. Human circumstances which a court power generally should exercise are limited instances where is a with the such as when court past, the “decision clear break a precedent, disapproves practice explicitly past overrules its own *** previously approved, body or overturns a has well-established authority.” Larrance, 230. In 3d at order only prospectively, whether a should be applied determine decision (1) the decision has court should consider three factors: whether precedent through overruling a new of law a clear principle established impression or an issue first resolution was not deciding whose (2) foreshadowed; retrospective application the deci clearly whether or operation, light sion will further retard its merits (3) effect; history, purpose, demerits of the rule and its retrospective of the decision will cause substantial application whether Aleckson, Ill. 2d inequitable results. at 92-93. that this case

Considering factors leads the conclusion is a First, it rule. only prospective declares a new Whether application. resolving wishes to its decision as an issue characterize changing precedent, there is impression, first as the settled majority’s never absolutely question no that the rule was foreshad in Second owed, either in case law as whole or District Illinois on the second factor is jurisprudence particularly. I think balance factor, As to final the rule will cause substantial equipoise. 30-year-old have practitioners upon to those who relied inequity into) (and becoming litigation in their landscape preparing locked impossible predict. rule strategies. change This was unheralded heavily only prospective weighs the third factor also favor colleagues that this case urge my I therefore to declare application. I prospective application, only prospective application. By will have who still parties the that those can apply mean to rule such affected; have rule will those who conform their conduct to the be fairness, should, in remain the already acted reliance on many ways to craft a by the I note that there are unaffected rule. also Jaimovich, Brown v. application majority’s rule. See prospective (2006) (citing such as decision examples App. 365 Ill. “ out arising of occur prospectively to causes action apply ‘will certain, apply to all cases on or decision will [citation]” rences’ a date “ the after’ the issuance of [citation]” trial commences on or ‘in which on). mandate, and so extended to a argues Aleckson not be that should involving jurisdiction. Aleckson, though, jurisdictional

case the bar compliance the Review held to be with Administrative Law was properly through only application deferrable of the new prospective I any rule. fail to see substantial difference between the situation in Moreover, rule, jurisdiction Aleckson and here. under the old we had newly reading to reach the and it is only majority’s issue the fashioned See, Burks, jurisdiction. that divests 3d at 754 e.g., rule); (expressly employing tolling 3d 712 Babolcsay, rule); Brown, (impliedly following tolling 3d 617 rule). (impliedly following tolling I do not find it troublesome to limit by the chaos caused the by adhering new rule to the old rule until a Last, date the majority appears object certain. to insinuate that I application of recognize its new rule this case. I do not. I that this case governed by majority’s must be the new In advocating only rule. prospective application, however, I seek to limit the chaos under this by allowing new rule it to implemented only parties may where the rule, conform their conduct to the penalizing parties new rather than for their reliance on previously established and utilized rule. observe, additionally, an unlooked-for consequence to the majority’s case, construction. This in the scheme of things, fairly insignificant. It thankfully injuries involves no or deaths or loss of tremendously property. valuable But what if it did? I note infamous Brown’s Chicken procedural Massacre case involved a similar posture There, to this prevailed one. the defendant on a motion to suppress evidence, namely, his videotaped statement. The State pealed, arguing prosecution of the defendant would be substantially impaired without videotaped evidence. On consider merits, ation of the appellate court reversed the decision of the trial court and reinstated videotaped statement into evidence. People Degorski, 3d 135 The case does not indicate whether State filed a motion to reconsider the trial or, so, if quickly However, how it was resolved. for the sake of argument, reconsider, assume that the State had filed a motion to which, docket, due heavy trial court’s was not resolved until after 30 passed. had Assume further that the trial court denied (However, motion to reconsider. appellate as seen court’s erroneous.) judgment, this denial of the motion to reconsider was majority’s construction, windfall, Under the the defendant receives a corrected, because get the State cannot the error because it precisely Further, offered the trial court the opportunity to correct it. development stymied of the law is court does not issue —the (errone the decision trial court will become convinced that its ous) holding may is correct and it issue similar decisions in the future.

Last, may the State not be able to importance, and of enormous free prosecution, wrongfully go maintain its and the defendant would how is served in this having justice without to stand trial. I cannot see scenario. not,

Looking majority apparently, to the broader has picture, rule, we do holding. majority’s the effect of its Under the considered the dozens of jurisdiction appeal. not have to hear this What about cases) (and perhaps unreported above hundreds of cases identified tolling ap- rule? If the that have been decided in accordance with the order is void. This results pellate jurisdiction, court had no then its provi- of for which the should make some sort several classes class, will have affirmed the trial appellate sion. In the first effect, challenged This result in no because the court’s order. should trial, if suppressed, remained and the outcome properly evidence objectionable evidence. any, presented was based on a case without class, court reversed the trial court’s order appellate In the second void, However, the order was because the suppressing evidence. This leads to several not the time for rule did extend may petitions still file those defendants who subclasses: petitions, and those rehearing, postconviction those who still file question concluded. The appeals direct and collateral are whose further, time; judgment the void any be raised at judgment void can case, I in each imagine resulted in a conviction. will have However, from an to a new trial. defendant would be entitled right evidence already gotten have perspective, institutional we —the trial, result- finder of fact. The new supposed to come before the flawed, fundamentally will be appellate judgment, ing from the void erroneously suppressed evidence was suppressed because the certainly does not seem of fact. This presented to the finder should result, be an inevitable one. appears even as it to be a desirable only prospec- to be rule is announced application Even if the morass that the new tive, way see a out of the hard-pressed I am a trial as a undergone who have defendants rule will cause—those pretty seem to have a judgment would result of a now-void the rule trial, if tried to make for a new even we good argument then course, retrospectively, operates if the rule only. Of prospective consequence. face this squarely we must constructions resulting varying from the consequences These tolling rule. As 606(b), view, keeping the my favor Rule are a valid constructions competing from the resulting consequences competing constructions merits of the judging consideration weigh 878-79), they strongly I believe that 3d at (King, acquiescence rule, along principles with the favor of the I recognize prevailing stare decisis. while am not on the (or prospectivity retrospectivity merits of the issue rule), plication of I the believe the should have considered and accounted these consequences its decision. 606(b) majority’s interpretation language

The of of the Rule is not foreclosed challenge. arguable, suggests, to It is as the State that judgment” “final refers to judgments, final while the use of the “judgment” interlocutory unmodified word refers to both final and judgments. subsequent sentences, In “judgment” is modified to make the understanding explicit judgment that it is a final (e.g., “When timely posttrial or postsentencing against judg motion directed the (210 606(b) (sentence 2))). ment has been filed” Ill. 2d R. The first sentence, by contrast, states appeal that “the notice of must filed be with the clerk of the days circuit court within 30 after the entry the judgment final appealed from or if a motion against judg directed the filed, ment timely is within 30 days entry after the of the order dispos 606(b) (sentence 1). ing of the motion.” 210 Ill. 2d R. juxtaposi The tion of judgment” “final and the “judgment” unmodified can be reasonably construed to state the general rule that a notice of must be filed days within 30 judgment, the final or days within 30 after ruling on a motion to against any reconsider directed appealable judgment, final or interlocutory. clause, then, if’ The “or expressly allows and validates holdings in Robins through Burks. The “order judgment” language penultimate in the sentence is reconciled noting that “order” can refer to the denial of the motion reconsider, and thus it harmonizes with the first sentence. The majority reads the foregoing require a motion to reconsider before a notice of can be filed. Not so. The penultimate sentence states that “no may be taken from a reviewing trial court to a court after the expiration of 30 from entry of the order or judgment 606(b) from which the appeal is taken.” 210 R. (sentence 7). language This possibility allows for the filing a notice of appeal from an interlocutory judgment order or 30-day within the time limit. The alternative interpretation of the first sentence allows for the tolling apply. rule to

If this construction adopted, is then there is no need to resort to the tools and instead, aids of plain language of Rule construction — 606(b) (and longer is no ambiguous given and it is ordinary heretofore universally accepted) effect.

In summary, decades, for over three the courts in Illinois have uniformly held that a State’s motion to reconsider the trial court’s grant of a defendant’s motion suppress will toll the time for uniformity This extends so far as to accepting challenge without cases, many are from number of which

tolling significant rule in a examination of I undertaken an District. have further the Second trial court principle that the them to be based on the cases and found errors, thereby eliminating to correct its opportunity have the should throughout all repeatedly expressed is appeals. principle needless This continued adherence. justifies I believe it our of the law and facets addition, majority’s suggests decisis principle of stare precedent from departure that a actually problems cause the will it is better Moreover, suggests decisis remedy. stare supposed standing long rule if the rule is less-than-analytically-perfect keep that it rule demonstrates both long use of the working; decisis, principle of stare quite long standing. it is works and that rule. to the then, our continued adherence strongly supports 606(b) that renders Also, interpreted in a manner Rule holding. implicit While contrary majority’s unambiguous, analysis regarding proper insightful majority presents plenty 606(b), impression, of first as if it were a matter of Rule interpretation usurping the decision reasoning to defer sufficient presented have reasons, respect- these maker, court. For proper our from fully dissent. Kanaval, GULLA, Petitioner-

In re MARRIAGE Suzanne OF SUZANNE f/k/a (Knobias, Inc., Appellant). KANAVAL,Respondent Appellee, and STEPHEN No. 2 — 07—0387 Second District 1,May 2008. Opinion filed far too little. The notes that Mink arose from reinstating a final order the defendant’s convic tion after the State moved for reconsideration of the court’s trial grant 470; Mink, of a new trial. 382 2d at 3d at see Ill. 169. procedural posture This nevertheless does not undermine or diminish clear public policy. Mink’s statement of Mink noted the actual power error-correction context of its statement that the court’s cor interlocutory orders: “Even if the trial court here extended to the State’s evidence was insufficient rectly determined that Rather, venue, judgment acquittal. not enter a final establish it did This defendant’s motion for a new trial. order granted Mink, clearly stated interlocutory in nature.” 141 Ill. 2d at 171. Mink errors extended to power that a court’s inherent to correct its own give power, effect to that interlocutory orders. order reconsider; appellant otherwise an will apply rule must to motions the trial court will cor taking have to choose between a chance specifically disap Heil losing right rect its error and which would nothing result: find these cases proved “We order entitled to from an support party the contention that a deprived opportunity by entered the circuit court should filed means of a motion alleged seek correction of the error

Case Details

Case Name: People v. Marker

Court Name: Appellate Court of Illinois

Date Published: May 1, 2008

Citation: 888 N.E.2d 590

Docket Number: 2-06-1071

Court Abbreviation: Ill. App. Ct.