People v. Tapp ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Tapp, 2012 IL App (4th) 100664
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRIAN A. TAPP, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-0664
Filed February 2, 2012
Rehearing denied March 1, 2012
Held Defendant’s appeal from the revocation of his conditional release from
(Note: This syllabus his commitment as a sexually dangerous person based solely on a
constitutes no part of “criminal sentence order” was dismissed for lack of jurisdiction, since the
the opinion of the court proceeding under the Sexually Dangerous Persons Act was a civil
but has been prepared proceeding and was subject to the supreme court rules applicable to
by the Reporter of appeals in civil cases, not Supreme Court Rule 606 and the other rules
Decisions for the applicable to criminal cases, and in defendant’s case, the notice of appeal
convenience of the was not filed within the 30 days allowed by Supreme Court Rule 303(a),
reader.)
in that although defendant did timely mail a request for a late notice of
appeal within 30 days after the expiration of the deadline for filing a
notice of appeal, he mailed his documents to the trial court, rather than
the appellate court as required by Rule 303(d), and the date of the timely
mailing could not be considered as the date of filing in the appellate court
when the trial court forwarded the documents to the appellate court;
therefore, the appellate court had no jurisdiction to consider the request
and the appellate court’s earlier grant of the request was vacated as
“improvident and improper.”
Decision Under Appeal from the Circuit Court of Sangamon County, No. 97-CF-401; the
Review Hon. Peter C. Cavanagh, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Daniel K. Wright and Stephanie M. Radliff, both of Brown, Hay &
Appeal Stephens, LLP, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert
J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE TURNER delivered the judgment of the court,
with opinion.
Justice Pope concurred in the judgment and opinion.
Justice Cook dissented, with opinion.
OPINION
¶1 In September 1997, the Sangamon County circuit court found defendant, Brian A. Tapp,
was a sexually dangerous person and committed him to the custody of the Department of
Corrections. In August 2002, the court entered an order providing for defendant’s conditional
release. In October 2007, the State filed a petition to revoke defendant’s conditional release,
which the court granted on June 15, 2010. Defendant appeals the revocation, contending the
trial court erred by revoking his conditional release based solely upon a Du Page County
“criminal sentence order.” We do not address the merits of defendant’s appeal and dismiss
the appeal for lack of jurisdiction.
¶2 While neither party raises an issue of jurisdiction, this court possesses “an independent
duty to consider issues of jurisdiction, regardless of whether either party has raised them.”
People v. Smith, 228 Ill. 2d 95, 104, 885 N.E.2d 1053, 1058 (2008); see also Secura
Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213, 902 N.E.2d 662, 664
(2009). In fact, our supreme court has emphasized “the ascertainment of its own jurisdiction
is one of the two most important tasks of an appellate court panel when beginning the review
of a case.” Smith, 228 Ill. 2d at 106, 885 N.E.2d at 1059. Thus, in November 2011, this court
issued a rule to show cause why defendant’s appeal should not be dismissed for lack of
jurisdiction. Defendant filed a response, citing Illinois Supreme Court Rule 606(c) (eff. Mar.
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20, 2009) and this court’s granting him leave to file a late notice of appeal in August 2010.
We recognize that, before this case was assigned to this panel, this court did grant defendant
leave to file a late notice of appeal. However, our review of the record leads us to reconsider
the propriety of that motion.
¶3 “The timely filing of a notice of appeal is both jurisdictional and mandatory.” Secura,
232 Ill. 2d at 213, 902 N.E.2d at 664. Unless the appealing party has properly filed a notice
of appeal, a reviewing court lacks jurisdiction over the appeal and must dismiss it. Smith, 228
Ill. 2d at 104, 885 N.E.2d at 1058. The time for filing a notice of appeal is governed by
supreme court rules. See Chand v. Schlimme, 138 Ill. 2d 469, 476, 563 N.E.2d 441, 444
(1990). Our supreme court has emphasized its rules are not aspirational or mere suggestions.
Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 353, 843 N.E.2d 379, 385 (2006).
Supreme court rules “ ‘have the force of law, and the presumption must be that they will be
obeyed and enforced as written.’ ” (Internal quotation marks omitted.) (Emphasis added.)
Rodriguez, 218 Ill. 2d at 353, 843 N.E.2d at 385 (quoting Roth v. Illinois Farmers Insurance
Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 215 (2002)). Additionally, our supreme court has
emphasized “the appellate court does not have the authority to excuse the filing requirements
of the supreme court rules governing appeals.” Secura Insurance Co., 232 Ill. 2d at 217-18,
902 N.E.2d at 667. Accordingly, we apply the supreme court rules as they are written.
¶4 A conditional-release-revocation proceeding in a case under the Sexually Dangerous
Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2006)) is a civil proceeding. In re
Detention of Kish, 395 Ill. App. 3d 546, 554, 916 N.E.2d 595, 601 (2009). Thus, the supreme
court rules applicable to appeals in civil cases apply to defendant’s case, not Rule 606(c) and
the other supreme court rules applicable to appeals in criminal cases. See People v.
Richardson, 32 Ill. App. 3d 621, 624, 335 N.E.2d 619, 621 (1975) (finding the rules
governing civil appeals apply to proceedings under the Act). In this case, the trial court
entered an order revoking defendant’s conditional release on June 15, 2010, and defendant
did not file a postjudgment motion. Accordingly, under Illinois Supreme Court Rule 303(a)
(eff. May 30, 2008), defendant’s notice of appeal had to be filed with the clerk of the circuit
court within 30 days after the June 15, 2010, judgment, which was July 15, 2010. Defendant
failed to do so.
¶5 When a party fails to file a notice of an appeal within the 30-day time period, Illinois
Supreme Court Rule 303(d) (eff. May 30, 2008) provides, in pertinent part, the following:
“On motion supported by a showing of reasonable excuse for failure to file a notice of
appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in
the reviewing court within 30 days after expiration of the time for filing a notice of
appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the
notice of appeal to the trial court for filing.” (Emphasis added.)
In this case, defendant’s request to file a late notice of appeal had to be filed with this court
on or before Monday, August 16, 2010. See 5 ILCS 70/1.11 (West 2010) (providing if the
last day of a time period falls on a Saturday or Sunday, the Saturday or Sunday is not
included in the computation). On August 5, 2010, defendant mailed his proposed late notice
of appeal and accompanying documents to the trial court, which received the documents on
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August 23, 2010. The trial court then mailed those documents to this court, and our clerk’s
office file-stamped them on August 27, 2010.
¶6 While the provision of Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009), allowing
for the date of mailing to be considered the filing date, may have applied to defendant’s
mailing of the request for leave to file a late notice of appeal, defendant mailed those
documents to the trial court, not this court. Thus, under Rule 373, the August 5, 2010,
mailing date cannot be treated as the date of filing of defendant’s request in this court.
Moreover, Illinois Supreme Court Rule 365 (eff. Feb. 1, 1994), which provides for the
transfer of a case to the proper reviewing court when the case has been appealed to the wrong
court, also does not apply in this case to make defendant’s notice timely. Here, defendant did
not file his late notice of appeal in the wrong reviewing court but, instead, filed it in the
circuit court. Our conclusion is supported by this court’s prior decision in Swinkle v. Illinois
Civil Service Comm’n, 387 Ill. App. 3d 806, 810-11, 903 N.E.2d 746, 749-50 (2009), where
we held Rule 365 did not apply to an analogous situation where the petitioner mistakenly
delivered his notice of appeal to this court before the expiration of the due date when the
supreme court rule required it to be filed in the circuit court. We explained our holding as
follows:
“Rule 365 would have required transfer to the correct court had petitioner timely filed
his notice of appeal in the circuit court but wrongly stated he was seeking review in the
supreme court or an incorrect district of the appellate court. [Citations.] Instead,
petitioner failed to deliver his notice of appeal as required on time to the office of the
circuit court clerk. [Citation.]” (Emphases in original.) Swinkle, 387 Ill. App. 3d at 811,
903 N.E.2d at 750.
¶7 Since the 30-day period of Rule 303(d) had expired when defendant filed his request for
leave to file a late notice of appeal in this court, we did not have jurisdiction to entertain
defendant’s August 27, 2010, request for leave to file a late notice of appeal. Accordingly,
this court’s grant of defendant’s request to file a late notice of appeal was “improvident and
improper” (People v. DeTienne, 17 Ill. App. 3d 708, 709-10, 309 N.E.2d 38, 39-40 (1974)),
and thus we vacate our August 30, 2010, order allowing the request.
¶8 An appellate court’s power attaches only upon compliance with the supreme court rules
governing appeals, and as stated, this court lacks the authority to excuse the failure to comply
with the filing requirements of such rules. People v. Lyles, 217 Ill. 2d 210, 216, 840 N.E.2d
1187, 1191 (2005). Since this case lacks a valid notice of appeal, we do not have jurisdiction
over the case.
¶9 For the reasons stated, we dismiss defendant’s appeal.
¶ 10 Appeal dismissed.
¶ 11 JUSTICE COOK, dissenting:
¶ 12 I respectfully dissent. Defendant mailed his request to file a late notice of appeal on
August 5, 2010, but he mailed it to the trial court. That should not be a problem. Under
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Illinois Supreme Court Rule 365 (eff. Feb. 1, 1994), an appeal filed in the wrong court shall
be transferred to the proper court and treated as if properly filed in that court. People v.
White, 333 Ill. App. 3d 777, 780, 776 N.E.2d 836, 838 (2002). The request to file a late
notice of appeal had to be filed on or before August 16, 2010, but it was not file-stamped in
our clerk’s office until August 27, 2010. Under the date of mailing rule, however, if a notice
of appeal is received after the due date, the time of mailing is deemed to be the time of filing.
Ill. S. Ct. R. 373 (eff. Dec. 29, 2009). I would not expand our rule in Swinkle to the situation
where a pro se incarcerated defendant files a request to file a late notice of appeal in the trial
court, where the notice of appeal would have been filed. In Swinkle the petitioner filed his
notice of appeal in the appellate court, rather than the circuit court, as required by Illinois
Supreme Court Rule 303(a) (eff. May 30, 2008). Swinkle, 387 Ill. App. 3d at 810, 903 N.E.2d
at 749.
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