People v. Williams
744 N.E.2d 915
Ill. App. Ct.
2001
Check Treatment

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH WILLIAMS, Defendant-Appellant.

Fourth District No. 4-99-0747

Fourth District

Opinion filed February 7, 2001.

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conferred upon it by the legislature. .

In this case, if the Department does not believe that AEH violated the Act a second time, no debarment hearing would be held. The administrative process is never commenced. However, if a second letter is sent, AEH would have the opportunity to present evidence and argument under the Act. 735 ILCS 5/3-101 et seq. (West 1998). The Act also provides for administrative review of an adverse decision at such a hearing and, ultimately, judicial review of the final administrative determination.

If the declaratory judgment action was allowed to proceed, a court decision inevitably forecloses further proceedings by the Department. Our legislature has statutorily empowered the Department to exercise its expertise and make initial determinations concerning enforcement of the Act governing wages to be paid for work on public projects. . We should not lightly dismiss the agency‘s role under the Act. The declaratory judgment action was premature because AEH did not exhaust its administrative remedies. The trial court should have granted the Department‘s motion to dismiss.

CONCLUSION

The judgment of the circuit court of Knox County is reversed.

Reversed.

BRESLIN and SLATER, JJ., concur.

Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender‘s Office, of Springfield, for appellant.

Lawrence R. Fichter, State‘s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.

JUSTICE KNECHT delivered the opinion of the court:

In July 1998, a jury convicted defendant of residential burglary (720 ILCS 5/19-3(a) (West 1998)) and, in September 1998, the trial court sentenced him to 15 years’ imprisonment. Although defendant indicated he wished to appeal at the conclusion of the sentencing hearing, a timely postsentencing motion was filed by counsel on September 23, 1998. The motion, however, was never called for hearing and the record fails to reveal whether it has ever been ruled on by the trial court. Defendant subsequently filed a pro se petition to file late notice of appeal, which this court allowed in September 1999 upon defendant‘s representation he mistakenly believed a notice of appeal had previously been filed at his request. Defendant made no representations about the existence or pendency of any posttrial proceedings.

On appeal, defendant contends the case should be remanded to allow the trial court to rule on the previously filed but unresolved posttrial motion. The State, in response, conceded the issue. Alternatively, defendant argues the trial court abused its discretion in sentencing him to a lengthy term of imprisonment.

On our own we asked the parties to address the applicability of a recent decision of this court, , which held appellate jurisdiction attaches when a timely notice of appeal is filed, rendering a timely posttrial motion, in effect, a nullity. Having considered the responses filed by the parties, we conclude the unique fact situation present in this case militates against a strict application of Gitchel.

In this case defense counsel filed the posttrial motion but, for unknown reasons, never called it for hearing. It is not clear defendant even knew the motion was filed (since no proof of service is shown on him) and the record gives no indication defendant was aware that the trial court never considered it. In addition, the only substantive issue raised on appeal concerns defendant‘s sentence, which is not cognizable absent the filing and resolution of an appropriate posttrial motion.

In these circumstances, we hesitate to penalize defendant for filing a petition for leave to file a late notice of appeal after the lengthy period of inattention to his case and under circumstances of which he may well be unaware. Because the posttrial motion pending below is necessary to preserve the sentencing issue defendant may wish to raise on review (730 ILCS 5/5-8-1(c)(West 1998)), we conclude the petition to file his pro se late notice of appeal was improvidently granted and the appeal should be dismissed. See .

Accordingly, we dismiss the appeal as improvidently granted and remand the cause to the circuit court for further proceedings.

Dismissed and remanded.

McCULLOUGH, J., concurs.

JUSTICE COOK, specially concurring:

I concur. I also stand by my dissent in , 736 N.E.2d at 649.