June 29, 2001

JUSTICE RAPP delivered the opinion of the court:

Following a bench trial, on October 5, 1999, defendant,Michael A. Miraglia, was found guilty of aggravated fleeing froma police officer (at a rate of at least 21 miles per hour over thespeed limit). 625 ILCS 5/11--204.1(a)(1) (West 1998). Followingthe denials of his posttrial motions, defendant appeals, arguingthat (1) he was not found guilty of the offense beyond areasonable doubt because he claims the officer's testimony did notshow he was traveling at least 21 miles per hour over the speedlimit; and (2) his defense counsel was ineffective in presentingthe affirmative defense of insanity. The trial court sentenceddefendant to a term of 24 months' probation with certainconditions attached, including psychiatric and substance abuseevaluation and treatment. After examining the record, we concludethat defendant's appeal is not timely because he has impermissiblyfiled successive posttrial motions, and we do not have appellatejurisdiction. We therefore dismiss this appeal.

On November 3, 1999, defense counsel, James Valentino, Jr.,filed a "Motion to Reconsider Judgment of Guilty." In thatmotion, defendant raised issues regarding prejudice resulting fromthe denial of his pretrial motion in limine and regarding thesufficiency of the evidence as to his rate of speed and hisinsanity defense. The motion summarized in some detail portionsof the testimony supporting his claims and the purportedevidentiary standards to be applied. The motion sought a directedfinding or finding of not guilty. On November 9, 1999, the trialcourt denied this motion on the merits and then sentenceddefendant following an evidentiary hearing. On November 9,defendant also filed his first notice of appeal. On November 23,1999, new defense counsel, Robert P. Will, Jr., filed an amendednotice of appeal.

On December 8, 1999, defendant, through his new counsel,filed a second posttrial motion, in which he raised essentiallyidentical issues regarding the denial of his motion in limine, thesufficiency of the evidence as to the insanity defense and thepurported applicable standard of proof, and the sufficiency of theState's evidence; he also advised that he needed additional timefor the completion of the report of proceedings.

On December 13, 1999, at the hearing on the motion, the Stateobjected to the filing of the second motion. Defendant arguedthat the filing of the motion nullified the notice of appeal andasked that the matter be continued to examine the transcripts. The court responded that it generally did not continue posttrialmotions for the preparation of transcripts, noting that, in somecases, it would be months before the transcripts were prepared. The court then indicated that there could be a hearing aftercounsel received the transcripts and, if counsel wanted to "re-raise" something that was found in the transcripts, defendantcould file a motion to do that. The court then said it wouldconsider the matters in the second posttrial motion. The Stateargued that the grounds alleged were insufficient to change thecourt's prior rulings and asked that the motion be denied.

The court denied the motion on the merits. Defendant againindicated he might file an amended or supplemental posttrialmotion, and the court appears to have acquiesced in this approach. However, the court opined that a notice of "appeal would have tobe filed within 30 days of today's date." The court thenconcluded, "Motion denied. Notice of appeal is withdrawn and post-trial motion's denied." The minute order entered on December 13,1999, states that defendant's posttrial motion is denied anddefendant is given leave to withdraw the notice of appeal. Thereis no mention in the order of a continuance for the purpose ofamending the motion.

No new notice of appeal was filed within the following 30-dayperiod. Instead, 29 days later, on January 11, 2000, defendantfiled his third posttrial motion, including an amended andsupplemental motion to reconsider, that realleged matters raisedin the first two motions (including summaries of the testimony),and claiming, in addition, that defendant's trial counsel wasineffective in presenting the insanity defense. The motion notedthat, as a result, the court had concluded that the defense hadnot carried its burden of proof as to the insanity defense byclear and convincing evidence.

On January 12, 2000, defendant also filed a motion to dismissthe prior appeal (No. 2--99--1263). At the hearing on that date,the court stated it was unsure whether it could dismiss the appealas it had done the last time. Although the court was willing tohear the motion, Will asked to continue it as he wished tosupplement the motion with the affidavit of Dr. Baron regardingthe gist of what he would have testified. The court stated itwould allow the filing of the motion and continued the matter forhearing but would not dismiss the appeal until the time of thehearing. The State objected to the filing of the third posttrialmotion on the ground that it was untimely, stating that it wishedto preserve its objection for appeal.

At the hearing on January 20, 2000, defense counsel statedthat the motion was filed subsequent to the notice of appeal. Thecourt responded that the notice of appeal would be withdrawn afterthe hearing on the motion and then defendant could "reinstate" theappeal. Regarding the ineffective assistance of counsel claim,defendant's argument concerned the proper standards and medicaltestimony that should have been used to present the insanitydefense.

In addressing the ineffective assistance claim, the courtconcluded that, under the proper standard--whether defendantlacked a substantial capacity to appreciate the criminality of hisconduct as a result of a mental disorder or defect--thesubstantive evidence showed that defendant was in fact able toappreciate the criminality of his conduct because, just before thepolice chase began, defendant stopped for a stop sign and hefinally did pull over in response to the police car's flashinglights.

In the context of the other evidence, and irrespective of themedical testimony or the level of skill of the attorney, the courtconcluded it was impossible to find that defendant did notappreciate the criminality of his conduct. The court foundinsufficient prejudice to sustain an ineffective assistance claimand ruled that the State's evidence was sufficient beyond areasonable doubt and the affirmative defense was not establishedby clear and convincing evidence. The court denied the thirdmotion on the merits and "reinstated" the appeal. The State againobjected that the appeal was untimely and reserved its objection. Some discussion ensued suggesting that portions of the record wereon their way to this court.

The written order entered January 20 stated that the priorappeal (No. 2--99--1263, filed November 9, 1999) was dismissedpursuant to Supreme Court Rule 309. 134 Ill. 2d R. 309 (beforerecord on appeal is filed in reviewing court, trial court maydismiss appeal on motion of party or on stipulation). The orderalso denied the posttrial motion and stated that the appeal was"reinstated" over the objection of the State and that defendantshall file a new notice of appeal within 30 days. A new noticeof appeal in the present cause (No. 2--00--0137) was filed onJanuary 20, 2000.

A reviewing court has the duty to consider whether it hasjurisdiction and to dismiss an appeal if it determines thatjurisdiction is lacking. Archer Daniels Midland Co. v. Barth, 103Ill. 2d 536, 539 (1984). In this case, we conclude that theappeal is untimely because defendant has failed to follow therules applicable to postjudgment motions and notices of appeal,and this has resulted in an untimely appeal.

Defendant's first posttrial motion, that is, a motion toreconsider the guilty finding, is arguably equivalent to a motionfor a new trial, which must be filed within 30 days of the findingof guilty. 725 ILCS 5/116--1 (West 1998). The purpose of aposttrial motion is to alert the trial court to trial errors sothat a new trial may be granted if warranted, without thenecessity of an appeal, and the motion also preserves but limitsthe issues reviewable on appeal. People v. Todd, 249 Ill. App.3d 835, 840 (1993).

Here, after the first posttrial motion was ruled on and thesentencing judgment was entered on November 9, 1999, the judgmentbecame final (People v. Caballero, 102 Ill. 2d 23, 51 (1984)(final judgment is the sentence)), and the initial 30-day time forappeal began to run pursuant to Supreme Court Rule 606(b) (188Ill. 2d R. 606(b)). In a criminal case, under Rule 606(b), thenotice of appeal must be filed with the clerk of the circuit courtwithin 30 days after the entry of the final judgment appealed fromor, if a motion directed against the judgment is timely filed,within 30 days after the entry of the order disposing of themotion. When a timely posttrial motion or postsentencing motiondirected against the judgment has been filed, any notice of appealfiled before the entry of the order disposing of all pendingpostjudgment motions shall have no effect and shall be strickenby the trial court, and a new notice of appeal must be filedwithin 30 days following the entry of the order disposing of alltimely postjudgment motions. 188 Ill. 2d R. 606(b); People v.Rowe, 291 Ill. App. 3d 1018, 1020 (1997) (timely filing ofpostjudgment motion within 30 days of judgment acts as implicitmotion to dismiss appeal and renders notice of appealineffectual).

In this case, on December 8, 1999, defendant filed a secondmotion directed against the final judgment within 30 days of thejudgment entered on November 9. While we seriously question thepropriety of filing an essentially repetitious postjudgment motionduring this initial 30-day period for appeal, we recognize thatthe trial court still retained jurisdiction to rule on that motionand that the motion therefore remained pending until disposed ofpursuant to Rule 606(b). Assuming, without deciding, that thesecond posttrial motion was properly before the trial court, ittolled the time for appeal under Rule 606(b) until the court ruledon it on December 13, 1999. The filing of the second motionrendered the original notice of appeal ineffectual, and the trialcourt's denial of that motion was final when entered of record andcaused the 30-day time for appeal to begin anew. The trial courtadvised defendant that a new notice of appeal had to be filedwithin 30 days of the date of the ruling pursuant to Rule 606(b),but apparently no new notice of appeal was filed until after theruling on the third motion, on January 20, 2000, a date wellbeyond the prescribed 30-day period for appeal.

Furthermore, we do not believe the trial court had the legalauthority to extend the time for appeal, under the guise ofhearing a successive, amended motion after ruling on the priormotion--by allowing yet another posttrial motion to be filed onJanuary 11 and ruling on it on January 20, 2000, over thecontinuing objections of the State.

We recognize that, as a practical matter and apparentlywithout express authority in the rules, courts do allow theamendment of a timely filed motion. However, a trial court cannot permit a defendant to file a postjudment motion directed againstthe final judgment, rule on it, and then rule on a motion toreconsider the denial of that posttrial motion and thereby extendits jurisdiction and the time for appeal. People v. Easley, 199Ill. App. 3d 179, 183 (1990) (successive postjudgment motions notauthorized to toll time for appeal); People v. Scruggs, 161 Ill.App. 3d 468, 471 (1987) (there is no authority for a trial courtto extend its jurisdiction by reconsidering the denial of aposttrial motion filed beyond the period established in Rule606(b); a second motion is unauthorized; citing Sears v. Sears,85 Ill. 2d 253, 258 (1981)); see People v. Clark, 314 Ill. App.3d 181, 185 (2000) (noting that successive posttrial motions arenot allowed and do not prolong the time a party has to file anotice of appeal).

Rule 606(b) contemplates the filing of only one postjudgmentmotion directed against the final judgment--whether it be theconviction or the sentence or both, but the rule does notauthorize successive and repetitious motions raising issues thatwere raised earlier or could have been raised earlier and therebyextend the time for appeal. It is improper practice to engage inpiecemeal litigation--seeing one theory of the case to conclusionbefore proposing another. See In re Paternity of Rogers, 297 Ill.App. 3d 750, 756-57 (1998). Our examination of the motions showsthat defendant could have raised all of the necessary issues atthe very least by the time his second motion was filed within 30days of the final judgment, as the claimed errors were apparentin the first motion.

The rationale for the rule against successive and repetitiouspostjudgment motions is found in Sears, 85 Ill. 2d at 259. Searsexplains that a litigant should not be permitted to return to thetrial court indefinitely, hoping for a change of heart. Permitting successive postjudgment motions would tend to prolongthe life of a legal proceeding, promote judicial inefficiency, andlend itself to harassment. There must be finality--a time whenthe case in the trial court is really over and the unsuccessfulparty must appeal or give up. Successive postjudgment motionsinterfere with that policy. Justice is not served by permittingthe losing party to string out his attack on a judgment over aperiod of months, one argument at a time, or make the first motiona rehearsal for the real thing the next month. Sears, 85 Ill. 2dat 259. We would add that, as can be seen in the present case,a violation of the rule also creates uncertainty as to the properdate for filing a valid notice of appeal.

In this case, defendant should have filed his new notice ofappeal within 30 days of the December 13, 1999, judgment, but hefailed to do so. Instead, he filed a third postjudgment motion. As we have explained, there is no authority in the rulespermitting the court to extend the time and permit yet anothermotion to be filed and heard after ruling on the second motion. See Sears, 85 Ill. 2d at 260. The January 20, 2000, notice ofappeal was filed well beyond the time allowed by Rule 606(b), andtherefore this court has no appellate jurisdiction. See Peoplev. Baskin, 213 Ill. App. 3d 477, 485 (1991).

We also determine that the revestment doctrine did not applyto revest jurisdiction in the trial court for the filing andconsideration of the third motion in view of the State's repeatedobjections. In order for the rule to apply, the parties mustactively participate without objection in proceedings that areinconsistent with the merits of the prior judgment. People v.Kaeding, 98 Ill. 2d 237, 241 (1983). Furthermore, the partiesdid not ignore the judgment, start to retry the case, and implyby their conduct that they consented to having the judgment setaside. Rather, the proceedings were adversarial in nature andconcerned whether the judgment should be set aside. See Sears,85 Ill. 2d at 260.

For the foregoing reasons, we conclude that we have noappellate jurisdiction, and we hereby dismiss this appeal.

Appeal dismissed.

HUTCHINSON, P.J., and GROMETER, J., concur.