may please the court the question in this case is whether joshua krueger's dictions violated double jeopardy it's multiple layers to that question but the focus the focus ends up on the effect of the  time and in addition martinez versus illinois which is you know it has to do with double jeopardy specifically also is something that was not part of the calculus  at that point even because the sugar not put into you not been put into jeopardy a second time at that point so this case is not identical to what had been decided before clear from the record and the court is aware of the facts but there's a few that i think would concisely explain how that's the case defense counsel filed a motion to suppress seeking to exclude certain physical pieces of evidence including a chrome casing and he asked that findings from of any of those items that were legally see should be suppressed the order next  court ruled on that motion finding that you know blood swabs and items that were plain view would not be suppressed but items not in plain view would be and and oral as part of an oral ruling the parties asked the circuit court judge defense counsel specifically to make it very explicit what was not in plain view and defense counsel refer and the prosecutor was there obviously and even the prosecutor asked defense counsel to what ideas are referring to you refer to the page of his motion that included the chrome casing and the judge made clear seeking to do anything differently from that suppression order but in response to things that the state had done in a co defendants trial separate trial concerning statements that we had been made to the media about  evidence from that chrome casing and defense counsel do not want you know the jury was ready to go the defense counsel did not want the jury or to have what the state had done in a separate codefendants trial to have any impact on this on joshua krueger's trial and the state denied in response to that the state did not say that there was anything you know there's nothing new presented or anything like that except that the state said  was confused about the court's prior work but as i just set forth this the prior order did suppress the chrome casing and findings from any items that were illegal from those illegally seized pieces of that what the circuit what the state was attempting to do was just reconsider what it had ruled before and back that's what the state said would you please reconsider your prior ruling but it was as the circuit court recognized it was clearly beyond the thirty days time period when that request was made and the law's clear that there's only one exception to the thirty day rule which is the taylor rule and that  material change in fact second not have been presented earlier with due diligence and there is nothing about that day of trial this defendant's motion eliminate that is a material change in the facts that could not have been presented earlier and so i   that the conclusion from looking at the record is clear that the apolo hordes determination that the notice of appeal was highly filed was not in line with the record and if that is the case and that is the arguments then it's not just something that we're trying to relate again over and over again it has jurisdictional implications and the laws clear that if to avoid order it can be challenging any time and that is what's is occurring here and again you know the other parts of this case is the double jeopardy arguments you know as i said before double jeopardy was not part of that appeal and by nature of the court's order it didn't get to double jeopardy but it's recent like i said earlier march in this recess illinois changes the landscape in illinois a file what constitutes job jeopardy in circumstances that occurred in this case now in that initial appeal you know there had not been a second jeopardy yes and that is part of the part of what's different about this case but again getting to double jeopardy is just part of what's going on here and that is you know what about the prior to this court's prior order and when revealing the record it's clear that the state's notice of appeal was on was untimely has been tonight one would think that it could be laid to rest well again this the issues raised in this appeal are specific to this case and they do differ from was litigated way back in two thousand in that initial states appeal and so there had this is not the issue about the impact of martina's on this and whether this prior courts appellate court order was said that it was not announcing to anything new all but that illinois had been getting it wrong time and time again so in terms of retroactivity the again this is this is why there's two parts t back into the state's notice of appeal and whether it is facts that may have been overlooked and there's cases another aspect so in terms of just to make sure i've answered your question which is again martinez never said it was not and something new and because our argument advances that we can go back to the circuit courts acquittal because of the boy the order by this court if it did not if is different than what had happened before that he'll lay is not going to look like what is being pursued here there's another aspect about going back to this court's order which is  peel it's has nothing more to do that's nothing more it can't determine whether it's timely or not and the court event has said no to that and so another aspect to this case that is not precisely what this were considered before which is that the circuit court when it received when it got the states and those people in this case determined based on its understanding of the record hearing the arguments from the state about it that it was simply just trying to make it enron about the requirement that they file the notice it's notice of appeal within thirty days and if the court as a court determined in bend that if it has any say about the determination and i think that that was not i think the circuit court this court's order doesn't give that discretion that deference that the circuit court is do as as was  terms of the attachment of jeopardy as i've said martinez looms large about that question and that is something that was not present before which is that when the state refuses to participate that does not prevent the jeopardy from attaching that there's prior citizens of this state practitioners had understood that if the state did refuse to participate there was no real jeopardy that the that concerned nottage jury trial but a bench trial where there was to hear stipulated evidence and the question was whether what point did the state did jeopardy attach and the court said there that jeopardy attaches refusing they made clear they they were fusing to participate they were doing nothing and the state and the court which had the discretion which was not abused here to say i don't find that your notice  you know falls within the taylor role so to speak that is there was nothing new nothing new there was no material change in fact that could not have been presented earlier with due diligence that the state was just attempting to make an en about its failure to to challenge the prior the court's prior were suppressing evidence by doing so the circuit court was in a position to say i still have jurisdiction and we're proceeding with the case and it but for the state's refusal to participate there was no evidence presented but that there's not again the rule is from bone myers jeopardy attaches when the court is called upon for all these reasons and i understand that this court has there's been a prior public court or her about this case but there's different circumstances available here and i think that including martinez i also think that there's things el was perhaps not provided and that prior or for all those reasons this court does have the power to find that its prior order was void that it did lack jurisdiction and that jeopardy did attach and thank you thank you  court the issue here is is not whether there is a double jeopardy violation the issue is whether or not then it has a stateless leave to file the success of the titian that makes that claim that is double jeopardy claim cannot be addressed unless he needs his defense needs his burden obtaining leave to file this excessive petition alleging that claim and whether defendant has met that burden is judged by what he alleged in his motion not on appeal guilty is boyd because as he alleged in his motion this was clearly in finding that the state's notice of appeal was timely on grounds that well it was unclear that the problem casing was suppressed until that issues are relevant to deciding with the state whether the state timely appealed the november first order with respect to the d n a test result which is a distinct item of evidence apart from the case this court stated was not clear the d n a test results from the chrome casing were suppressed until the november first order of the airport found the state's notice of appeal of the november first order is timely so defendants motion for leave to file a successive petition therefore relies in fails on his mischaracterization of this court's two thousand and two ruling his motion does not allege actual innocence or cause of prejudice instead he relies on the rule that a judge which i meant may be attacked at any time of his motion for leave to file a successive petition on that ground while now of course defendant contends that his double jeopardy claim is buyable even if the state's notice of appeal was sufficient contrary to defendant misapprehend the distinction between an erroneous judgment which is entered by a court which has jurisdiction and a way judgment which results where jurisdiction is lack unlike in the cases the defendant sides here the state's timely filed notice of appeal trial court of obtaining leaf file his successor petition i addressed the double jeopardy issue only because defendant argues on appeal that it may be addressed despite his failure to meet his burden to file his motion in my brief i argued that the trial court lecture stitching to swear the jury were to enter its not guilty judgment and that jeopardy thus did not attack yesterday opposing counsel acknowledged my email in which i notified him that in today's argument i would add that jeopardy did not attach because the jury was never sworn no witnesses recall and no evidence was presented here the trial court only scheduled jury selection it did not swear the jury appeal of that binds jurisdiction does not exist neither bend or any other case gives the trial court the last word on whether or not it has subject managers turn its arguments to the contrary and his claims that the tr had discretion to decide it had jurisdiction and at the trial court's finding to that effect is due deference on appeal are completely unsupported and contrary to the very ground on which he seeks to file a successive petition that avoids judgment that case there was there were two cases involving evidence that resulted from the same arrest there was a ruling of collateral stoppel in a later case which situation at all b as this court ruled and as the record shows there were two distinct items of evidence the crime casing and the d n a test results there was no motion for collateral stop  order granting it and in fact after this court in two thousand and two did to determine that it had jurisdiction to decide the merits of the state appeal and vacated the twelve court's judgment of not guilty as the way this court ruled that collateral  end the court has reviewed the briefs made the point today about how this court's prior order is not identical to what is going on here and i just stayed one factor that may be going on here is the state said that the d n a evidence is that stinks piece of evidence from the chrome pacing and it's an os and i just outlined i don't want to repeat myself too much but defense counsel is motion to suppress such as to suppress the crime casing and findings from any items including that were legally see such as the ground that is what the circuit court rule was suppressed and the state was there when that was made when that was sought to be clarified so again the this court's prior order finding that the state's notice of appeal was timely it is subject to challenge here because that is not consistent with the record and therefore it is for it's not a distinct piece of evidence as i said that's that's part of the issue there and again the state says that there's no basis to say that the circuit court has any discretion in terms of whether the notice of appeal was submitted but that is precisely the issue invent and so if the score were to accept the state's argument that would be inconsistent with and would also be inconsistent with you know common sense in that if the states notice of appeal was utterly clear that it was untimely filed that's just  way to stop the proceedings and that the circuit court has no say in that such an enormous repeal was untimely and that's exactly what the supreme court did hear it recognize that that knows it was not timely and that it could continue to act and there's nothing in consistent about that in terms of bend and that the court does have the power to make that determination and again that may be something part of what this court had not considered previously the state says that the motion filed in the postcondition petition to be considered and again i've outlined why that's that's so the martina's claim that was included in the the in successive post in fiction just assume cause and find that there is no prejudice because as the state has argued they don't even get to you know that their position is we don't even get to double jeopardy because it's the circuit court of the states notice of appeal this  time the state says that there's to the extent they do or if you double jeopardy the state says that well there was no jury involved just like there was in martinez no jury sworn but that doesn't matter that's not how it jeopardy attaches circuit court is addressing its prior order again in another manner that doesn't invite the state to then challenge that prior suppression order later and that's what's hard to me have been the conclusion of this for previously which is that motion or eliminate was seeking to enforce a prior work that wasn't seeking to do anything different and so that's exactly what the state was asking him to do please reconsider your decision and there's the thirty days again the rule is the taylor rule and the state has never made any position now or way back when and when the circuit court decided to decide this regard the states and its of feel there's been no meeting