People v. Harrison

THIRD DIVISION
March 21, 2007
1-07-0372
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 04 CR 23279
)
BOBBY LEE HARRISON, ) Honorable
) Michele M. Simmons,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE THEIS delivered the opinion of the court:
Defendant Bobby Lee Harrison, pro se, filed a notice of appeal from the order of the
circuit court of Cook County denying his pro se motion for substitution of judge. The Office of
the State Appellate Defender, which was subsequently appointed to represent defendant on
appeal, has filed a motion to dismiss defendant’s appeal for lack of jurisdiction. We grant the
Office of the State Appellate Defender’s motion dismiss for the following reasons.
Defendant is apparently facing charges of aggravated criminal sexual assault. 720 ILCS
5/12-14 (West 2004). Defendant’s pro se filings in this appeal indicate that he is still awaiting
trial. They also indicate that during the course of the year 2006, he appeared before Judge
Michele M. Simmons on several occasions and expressed his desire to proceed pro se. This led
to a series of disputes between defendant, Judge Simmons, and defendant’s appointed public
defender.
On January 2, 2007, defendant filed a motion for substitution of judge (725 ILCS 5/114-5
(West 2004)), claiming that Judge Simmons was biased against him. Another circuit court judge
1-07-0372
entertained defendant’s motion and denied it on January 24, 2007. Defendant subsequently filed
a “Motion for A Notice of Appeal” in the circuit court on February 2, 2007, in which he sought
to appeal from the denial of his motion for substitution of judge.
The Office of the State Appellate Defender filed a motion to dismiss this appeal,
contending this court lacks jurisdiction to entertain defendant’s appeal because the circuit court’s
order denying defendant’s motion for substitution of judge is neither final nor appealable. We
agree.
Generally, appellate jurisdiction exists only to review final orders. Niccum v. Botti,
Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7, 694 N.E.2d 562, 563 (1998); Weiss v.
Waterhouse Securities, Inc., 335 Ill. App. 3d 875, 880, 781 N.E.2d 1105, 1109 (2002). An order
is said to be final if it “ ‘ “disposes of the rights of the parties, either upon the entire controversy
or upon some definite and separate part thereof,” ’ ” such as a claim in a civil case. In re Estate
of French, 166 Ill. 2d 95, 101, 651 N.E.2d 1125, 1128 (1995), quoting Treece v. Shawnee
Community Unit School District No. 84, 39 Ill. 2d 136, 139, 233 N.E.2d 549 (1968), quoting
Village of Niles v. Szczesny, 13 Ill. 2d 45, 48, 147 N.E.2d 371 (1958).
The denial of a motion for substitution of judge is not a final order. In re A.N., 324 Ill.
App. 3d 510, 511-12, 755 N.E.2d 155, 157 (2001). Rather, it has been described as “a step in the
procedural progression leading to” judgment. A.N., 324 Ill. App. 3d at 512, 755 N.E.2d at 157-
58. In a criminal case, there is no final judgment until the imposition of sentence, and, in the
absence of that final judgment, an appeal cannot be entertained except as specified in Supreme
Court Rule 604 (210 Ill. 2d R. 604). People v. Dotson, 214 Ill. App. 3d 637, 645, 574 N.E.2d
2
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143, 148 (1991), citing People v. Flores, 128 Ill. 2d 66, 538 N.E.2d 481 (1989).
In the present case, because defendant has not been sentenced, there has been no final
judgment. Dotson, 214 Ill. App. 3d at 645, 574 N.E.2d at 148. In addition, Rule 604 does not
confer any independent grounds for an immediate appeal from the denial of the motion. See 210
Ill. 2d R. 604. Accordingly, at this juncture, we have no jurisdiction to entertain his claim that
the circuit court erred in denying his motion for substitution of judge. Cf. A.N., 324 Ill. App. 3d
at 511-12, 755 N.E.2d at 157-58 (holding that although denial of motion for substitution of judge
was not a final, appealable order in its own right, jurisdiction existed to consider the issue
because interlocutory appeal from denial of injunctive relief was immediately appealable
pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)) and the denial of the motion
for substitution of judge was a step in the procedural progression leading to that judgment).
We therefore dismiss defendant’s appeal for lack of jurisdiction.
Appeal dismissed.
GREIMAN and KARNEZIS, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
BOBBY LEE HARRISON,
Defendant-Appellant.
________________________________________________________________
No. 1-07-0372
Appellate Court of Illinois
First District, Third Division
Filed: March 21, 2007
_________________________________________________________________
PRESIDING JUSTICE THEIS delivered the opinion of the court.
Greiman and Karnezis, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Michelle M. Simmons, Judge Presiding
_________________________________________________________________
For DEFENDANT -
APPELLANT, Bobby Lee Harrison, Pro Se
ID# 2004-0072892
Div. 1 G-2
P.O. Box 089002
Chicago, IL 60608
For PLAINTIFF -
APPELLEE, Richard A. Devine, State’s Attorney
300 Richard J. Daley Center
Chicago, IL 60602