2022 IL App (1st) 170641-U

FIFTH DIVISION

April 29, 2022

No. 1-17-0641 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

JAMES HARRIS, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County.

No. 00 CR 25174 

Honorable 

Evelyn B. Clay, 

Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court.

Justices Cunningham and Connors concurred in the judgment. 

ORDER

¶ 1 Held: We grant appellate counsel’s motion to withdraw, vacate the order granting 

defendant leave to file a late notice of appeal, and dismiss defendant’s appeal 

because we lack jurisdiction over the appeal. 

¶ 2 Defendant James Harris appeals from the circuit court’s denial of his pro se petition for 

relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 

ILCS 5/2-1401 (West 2016)).
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¶ 3 Following a 2003 jury trial, defendant was found guilty of the first degree murder of Donta 

Henson and sentenced to 21 years’ imprisonment. On direct appeal, defendant argued that (1) the 

State misstated its burden of proof during closing arguments; (2) the court inadequately 

admonished him regarding the preservation of sentencing issuesfor appeal; and (3) the compulsory 

extraction of his DNA pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 

5/5-4-3 (West 2002)) violated the fourth amendment. We affirmed. People v. Harris, No. 1-04-

3246 (2005) (unpublished order under Illinois Supreme Court Rule 23).

¶ 4 In 2007, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (725 

ILCS 5/122-1 et seq. (West 2006)), arguing that (1) the trial court erred when it ordered a jury trial 

outside of defendant’s presence; (2) the evidence supported a conviction for second degree murder 

rather than first degree murder; and (3) the trial court violated due process where it did not 

admonish him regarding a three-year term of mandatory supervised release (MSR) following his 

prison sentence. The circuit court summarily dismissed defendant’s petition. We affirmed and 

granted appellate counsel’s motion for leave to withdraw as counsel. People v. Harris, No. 1-07-

1398 (2008) (unpublished summary order under Illinois Supreme Court Rule 23(c)). 

¶ 5 From 2009 through 2016, defendant filed a series of unsuccessful collateral challenges; 

many attacked the legality of the MSR. Defendant did not appeal the denials of relief.

¶ 6 On November 2, 2016, defendant filed the underlying pro se petition for relief from 

judgment arguing that his three-year term of MSR was unconstitutional as applied because it 

required him “to serve more time” than the sentence imposed.

¶ 7 On December 16, 2016, the circuit court denied defendant’s petition, finding his MSR 

claim was both barred by res judicata and meritless. On January 19, 2017, defendant mailed a 
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notice of appeal to the circuit court, which was received on January 24, 2017. The court found the 

notice of appeal untimely and informed defendant he could seek an order allowing a late notice of 

appeal from this appellate court. 

¶ 8 Defendant then filed a motion for leave to file a late notice of appeal in this court, which 

was file-stamped March 14, 2017. The notarized proof of service stated that he mailed the motion 

to this court on March 8, 2017. In the motion and attached affidavit, defendant stated his notice of 

appeal from the December 2017 judgment was late because he did not receive notice that the court 

denied his petition until January 13, 2017. He stated that he arranged to file the notice of appeal as 

soon as possible. On March 22, 2017, a motion panel of this court granted defendant’s late notice 

of appeal.

¶ 9 On December 20, 2018, the Office of the State Appellate Defender, which represents 

defendant on appeal, filed a motion for leave to withdraw as appellate counsel, citing Pennsylvania 

v. Finley, 481 U.S. 551 (1987), and a memorandum in support thereof. Copies of counsel’s motion 

and memorandum were mailed to defendant. Defendant was also informed that he may file with 

this court a written explanation of why he thinks there are meritorious issues in his appeal. 

Defendant did not respond.

1

¶ 10 After carefully reviewing the record in light of counsel’s motion and memorandum, we 

conclude that we lack jurisdiction over defendant’s appeal and must dismiss it.

¶ 11 A reviewing court has an independent duty to consider jurisdictional issues regardless of 

whether a party raises them. People v. Smith, 228 Ill. 2d 95, 104 (2008). “The timely filing of a 

1 For unknown reasons, this case was not assigned to an author or panel until September 2, 2021. 

This court regrets the delay in processing this appeal. 
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notice of appeal is both jurisdictional and mandatory.” Secura Insurance Co. v. Illinois Farmers 

Insurance Co., 232 Ill. 2d 209, 213 (2009). Unless there is a properly filed notice of appeal, a 

reviewing court has no jurisdiction over the appeal and must dismiss it. Smith, 228 Ill. 2d at 104.

¶ 12 Section 2-1401 of the Code provides a civil remedy which extends to criminal cases. 

People v. Vincent, 226 Ill. 2d 1, 8 (2007). Although a section 2-1401 petition is filed in the same 

proceeding in which the final order or judgment was entered, it is not a continuation of the original 

action. 735 ILCS 5/2-1401(b) (West 2016). Rather, it is a new cause of action subject to the rules 

of civil procedure. People v. Abdullah, 2019 IL 123492, ¶ 13; see also People v. Tapp, 2012 IL 

App (4th) 100664, ¶ 4 (supreme court rules governing civil appeals, rather than supreme court 

rules governing criminal appeals, apply in civil proceedings).

¶ 13 Illinois Supreme Court Rule 303 (eff. July 1, 2017) provides that, in a civil case, a party 

seeking to appeal a final judgment must file a notice of appeal within 30 days after the entry of the 

final judgment or entry of the last pending post judgment motion directed against that judgment. 

Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). A party seeking to appeal the final judgment after the 

30-day period expires may file a motion for leave to file a late notice of appeal in the reviewing 

court “within 30 days after expiration of the time for filing a notice of appeal.” Ill. S. Ct. R. 303(d) 

(eff. July 1, 2017). When computing a statutory time requirement, the first day is excluded and the 

last day is included, although the last day and any successive day is excluded if it is a weekend or 

holiday. 5 ILCS 70/1.11 (West 2016).

¶ 14 “If received after the due date, the time of mailing by an incarcerated, self-represented 

litigant shall be deemed the time of filing,” with proof of mailing “as provided in Rule 12.” Ill. S. 

Ct. R. 373 (eff. July 1, 2017). Rule 12 provides that, for service by mail by a pro se litigant residing 
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in a correctional facility, proof of mailing is made by certification under section 1-109 of the Code, 

“stating the time and place of deposit and the complete address to which the document was to be 

delivered.” Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). 

¶ 15 Here, the circuit court denied defendant’s section 2-1401 petition on December 16, 2016, 

and defendant did not file a post judgment motion. Because January 16, 2017, was a court holiday, 

the 30-day period to file a notice of appeal from that order expired on January 17, 2017. Ill. S. Ct.

R. 303(a)(1) (eff. July 1, 2017); 5 ILCS 70/1.11 (West 2016). The 30-day period to file a motion 

for leave to file a late notice of appeal expired on February 17, 2017. Ill. S. Ct. R. 303(d) (eff. July 

1, 2017). Defendant’s motion for leave to file a late notice of appeal is file-stamped March 14, 

2017. His proof of service shows he mailed his motion on March 8, 2017. Thus, his motion was 

untimely under Rule 303(d). While defendant stated that he did not receive notice that the circuit 

court denied his petition until January 13, 2017, our supreme court has instructed that “the 

appellate court does not have the authority to excuse the filing requirements of the supreme court 

rules governing appeals.” Secura, 232 Ill. 2d at 217-18. Accordingly, we lacked jurisdiction to 

grant his motion for leave to file late notice of appeal and must dismiss the appeal.

¶ 16 We therefore grant counsel’s motion to withdraw, vacate the order granting defendant leave 

to file a late notice of appeal, and dismiss the appeal. This disposition is without prejudice to 

defendant’s ability to seek a supervisory order from the Illinois Supreme Court permitting him to 

file a late notice of appeal. 

¶ 17 Order vacated; appeal dismissed.