2015 IL App (2d) 130599

No. 2-13-0599

Opinion filed February 19, 2015

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Winnebago County.

)

Plaintiff-Appellee, )

)

v. ) No. 11-CF-1763

)

ROBERT NORTON, ) Honorable

) Gary V. Pumilia,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion.

Justices Jorgensen and Spence concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Robert Norton, appeals, challenging the restitution order entered as part of the 

sentence imposed for his conviction of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 

2010)). His appeal is untimely under the rule in People v. Serio, 357 Ill. App. 3d 806 (2005). 

We therefore dismiss the appeal for want of jurisdiction.

¶ 2 I. BACKGROUND

¶ 3 Defendant, who had a bench trial, was convicted of two counts of aggravated domestic 

battery. His sentencing hearing took place on May 11, 2012. The court imposed a sentence of 

imprisonment and ordered defendant to pay $150,000 in restitution to the battery victim. 
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Defense counsel filed a motion to reconsider the sentence, which the court heard and denied on

June 29, 2012.

¶ 4 Immediately upon the court’s denial of the motion to reconsider the sentence, defendant 

told the court that he wanted to raise a claim of ineffective assistance of counsel and asked the 

court how that would interact with his right to appeal. The court advised defendant that if he

filed the motion he had with him, “the notice of appeal is not filed,” and after the court decided 

defendant’s motion defendant could “decide what [he] want[ed] to do.” Defendant asked for 

further clarification, and the court told him, “[I]f you file it now, I will consider this as part of a 

motion for a new trial, and I’ll deal with it here, right now before the appeal.” The State argued 

that the motion “should be” a postconviction petition, but the court stated, “It makes more sense 

for me to deal with it now rather than have it come back and me deal with it.” Defendant filed 

his motion, and the court appointed new counsel to represent him on his motion.

¶ 5 Defense counsel filed what he called a supplemental motion for a new trial, stating that it 

was his understanding that, under the trial court’s interpretation, the time defendant had to appeal 

was not running during the pendency of the motion. The State asserted that the court had 

“advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the 

Court would retain jurisdiction.” The court denied the motion at the conclusion of an evidentiary 

hearing that ended on May 3, 2013. Defendant filed a notice of appeal immediately upon the 

court’s entry of the denial.

¶ 6 II. ANALYSIS

¶ 7 On appeal, defendant asserts that we have jurisdiction of this appeal under the rule we set 

out in Serio. We do not agree. Application of the rule in Serio results in this appeal’s dismissal 

for untimeliness. Further, because defendant filed his notice of appeal beyond the period in 
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which we may grant a motion for leave to file a late notice of appeal (see Ill. S. Ct. R. 606(c) 

(eff. Mar. 20, 2009)), we lack any other possible basis to take jurisdiction of the appeal. Cf. 

People v. Stanford, 2011 IL App (2d) 090420, ¶¶ 20-26 (we may deem the filing of a notice of 

appeal within the time for filing a late notice of appeal as equivalent to the filing of a motion for 

leave to file the late notice of appeal).

¶ 8 Under our holding in Serio, a pro se motion asserting the ineffectiveness of counsel that 

is filed fewer than 30 days after the court has decided a postsentencing motion does not extend 

the time in which a defendant may appeal. Serio, 357 Ill. App. 3d at 817. To be sure, the trial 

court has both jurisdiction to consider such a motion and a duty to address the sufficiency of that 

motion. Serio, 357 Ill. App. 3d at 816-17. Nevertheless, a successive postjudgment motion does 

not extend the time for appeal. Serio, 357 Ill. App. 3d at 817.

¶ 9 The rule in Serio creates a conundrum for a defendant when, as here, the consideration of 

the pro se motion delays the notice of appeal more than 30 days after the denial of the first 

postjudgment motion. Here, the court did not assist defendant. Instead, it misadvised defendant 

that the time in which he could appeal was tolled when, as we have shown, it was not. 

Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result 

here is problematic in that respect. However, we do not have the authority to disregard our lack 

of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.

¶ 10 III. CONCLUSION

¶ 11 For the reasons stated, we dismiss defendant’s appeal for want of jurisdiction.

¶ 12 Appeal dismissed.