2023 IL App (1st) 210582-U

FIFTH DIVISION

April 21, 2023

No. 1-21-0582 

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. 

DEMARCO PHILLIPS, 

 Defendant-Appellant. 

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Appeal from the Circuit Court

of Cook County.

No. 08 CR 17559

Honorable 

Brian K. Flaherty, 

Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court.

Justices Lyle and Navarro concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s notice of appeal from the circuit court’s summary dismissal order of 

his post-conviction petition divested that court of jurisdiction. Accordingly, we 

vacate the court’s subsequent order which vacated the summary dismissal order, 

and all later orders of the circuit court, including an order granting the State’s 

motion to dismiss defendant’s petition and remand for second-stage proceedings.
No. 1-21-0582 

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¶ 2 Defendant Demarco Phillips appeals from the circuit court’s order granting the State’s 

motion to dismiss his pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 

5/122-1 et seq. (West 2014)). He claims the circuit court lacked jurisdiction to dismiss his petition. 

We agree, and, accordingly, vacate the court’s orders as explained below, and remand for secondstage proceedings on defendant’s postconviction petition. 

¶ 3 BACKGROUND

¶ 4 This court recited the facts underlying defendant’s convictions in its order affirming the 

circuit court on direct appeal. See People v. Phillips, 2014 IL App (1st) 112874-U. In short, at 

defendant’s bench trial, Dolton police detective Major Coleman testified he witnessed defendant 

flee from a vehicle Coleman had stopped for a routine traffic violation. Defendant was holding a 

firearm. Coleman relayed his location to other officers, and shortly thereafter, Dolton police 

detectives Graham and Griffin arrived and pursued defendant on foot. During the pursuit, Graham 

heard a gunshot and saw two flashes while he was 20 feet away from defendant. Eventually, 

Graham located defendant in the laundry room of an apartment building, a firearm within his reach. 

After his arrest, defendant provided a statement, in which he admitted to possessing the firearm

but insisted it belonged to someone else. The circuit court found defendant not guilty of attempt 

first degree murder, but guilty of aggravated discharge of a firearm and unlawful use of a weapon 

by a felon (UUWF). Following a hearing, the court sentenced defendant to concurrent sentences 

of 15 years’ imprisonment for aggravated discharge of a firearm and seven years’ imprisonment 

for UUWF. 

¶ 5 On direct appeal, defendant raised multiple challenges to his sentences. This court 

affirmed. See Phillips, 2014 IL App (1st) 112874-U. 
No. 1-21-0582 

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¶ 6 On October 2, 2014, defendant filed a pro se petition under the Act, claiming ineffective 

assistance of trial counsel and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by 

withholding “the 911 dispatch recording.” 

¶ 7 On March 4, 2015, defendant mailed a motion to appoint counsel, in which he also argued

that his postconviction petition should be advanced to the second stage because the circuit court 

had not summarily dismissed it within 90 days of filing, citing 725 ILCS 5/122-2.1 (West 2014).

¶ 8 At a proceeding on March 27, 2015, the circuit court stated, “PC docketed *** Public 

Defender appointed.” An attorney from the Cook County Public Defender’s office then appeared 

in court on defendant’s behalf on at least two occasions: May 15, 2015, and August 14, 2015. 

¶ 9 On November 20, 2015, the circuit court entered an order summarily dismissing 

defendant’s petition as frivolous and patently without merit. On December 18, 2015, defendant 

mailed a notice of appeal from the summary dismissal order. 

¶ 10 On March 29, 2016, defendant mailed a letter to the circuit court, in which he asked for “a 

copy of the notice of appeal I filed December 18, 2015,” and continued, “Please give me a status 

update on the motion I filed December 18, 2015, to reconsider the judge [sic] decision.” There is 

no indication in the record, however, that defendant ever filed a motion to reconsider the court’s 

summary dismissal order.

¶ 11 On April 1, 2016, the circuit court entered an order vacating the summary dismissal order.

The order states, “It is hereby ordered that the Clerk of the Circuit court correct the computer 

system entry of [November 20, 2015] for the above matter,” and that the November 20, 2015 entry 

should have simply stated the next court date was April 1, 2016. The petition proceeded to the 

second stage, with both parties participating without objection. 
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¶ 12 On August 25, 2017, the assistant state’s attorney stated, “There is something screwed up 

with this case. The Clerk’s system awhile ago says it was dismissed at stage 1, when it was actually 

docketed ***. It was docketed awhile ago. Back in 2015.” Counsel continued, “The [Cook County 

Public Defender’s office] thought it was disposed of. *** I talked to them this morning. I let them 

know it has not disposed of, and that it is still in a stage 2.” 

¶ 13 The State filed a motion to dismiss the petition on March 15, 2019. On April 30, 2021, the 

parties argued the State’s motion to dismiss, and on May 21, 2021, the circuit court granted the

motion. This appeal followed.1 

¶ 14 ANALYSIS

¶ 15 On appeal, defendant’s lone claim is that the circuit court did not have jurisdiction to vacate 

its November 20, 2015 summary dismissal order, and proceed to second stage proceedings on his 

petition, because his December 18, 2015 notice of appeal divested the court of jurisdiction. 

Therefore, according to defendant, the court’s orders after his notice of appeal were void, and this 

court should vacate the summary dismissal order (which both parties agree was erroneous), along 

with the subsequent orders, and remand for second-stage proceedings.

¶ 16 The Act provides a criminal defendant the opportunity to challenge a conviction on the 

grounds that it violates his constitutional rights under the Illinois or United States constitutions, or 

both. People v. Eubanks, 2021 IL 126271, ¶ 29. A circuit court reviews a petition filed pursuant to 

the Act in three stages. People v. Allen, 2015 IL 113135, ¶ 21. At the first stage, the circuit court 

may dispose of a petition by entering an order, within 90 days of filing, which declares the petition 

frivolous or patently without merit. Id. If the court does not enter an order within 90 days, the 

1

 Defendant filed a motion for summary disposition during the pendency of this appeal, 

which this court denied.
No. 1-21-0582 

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petition is docketed for second stage review, and the circuit court may appoint counsel if the 

defendant is indigent. See 725 ILCS 5/122-2.1 (West 2014); 725 ILCS 5/122-4 (West 2014). 

¶ 17 Defendant’s claim centers on whether the circuit court had jurisdiction to vacate its 

summary dismissal order. The filing of a notice of appeal typically divests a circuit court of subject 

matter jurisdiction. People v. Bounds, 182 Ill. 2d 1, 3 (1998). A circuit court may not enter any 

substantive orders following the filing of a notice of appeal, and any such orders are void. See 

People v. Abdullah, 2019 IL 123492, ¶ 34. We review de novo whether the circuit court had 

jurisdiction to enter an order. Id. ¶ 18. 

¶ 18 Here, the circuit court improperly entered a first-stage summary dismissal order after

defendant’s petition advanced to the second stage because 90 days had elapsed since its filing, a 

fact which neither party disputes. Additionally, the record is clear that the circuit court entered its

order to vacate summary dismissal on April 1, 2016, months after it lost jurisdiction due to 

defendant’s December 18, 2015 notice of appeal. See Bounds, 182 Ill. 2d at 3. Accordingly, we 

hold that the court’s April 1, 2016 order, and all subsequent orders, including the May 21, 2021 

order granting the State’s motion to dismiss, are void for lack of jurisdiction and must be vacated. 

Moreover, because the court’s summary dismissal order was erroneous, we vacate that order as 

well, and remand for second-stage postconviction proceedings.2

 

2 We note that the State contends the orders after November 20, 2015, were collateral to 

the substantive ruling, meaning the circuit court could retain jurisdiction to enter them, regardless 

of defendant’s December 18, 2015 notice of appeal. See General Motors Corp. v. Pappas, 242 Ill. 

2d 163, 173-74 (2011). This argument fails because while the continuance orders were not 

themselves substantive, they were in service of scheduling the hearing on the State’s motion to 

dismiss, which the court then granted by making substantive findings on whether the petition made 

a substantial showing of a constitutional violation.
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¶ 19 We note that we may vacate the summary dismissal here even though defendant only listed 

the circuit court’s May 21, 2021 order in the notice of appeal because that order was part of the 

procedural progression from the summary dismissal order. See In re Jamari R., 2017 IL App (1st) 

160850, ¶ 41 (citing Burtell v. First Charter Service Corporation, 76 Ill. 2d 427, 434-35 (1979) 

(appellate court jurisdiction extends to orders in a procedural progression leading to the order 

appellant specified in the notice of appeal)). The summary dismissal order, and all subsequent

orders up to and including the grant of the State’s motion to dismiss, were steps in the same 

process—the circuit court’s consideration of whether defendant should receive a third-stage 

evidentiary hearing regarding his postconviction petition. See People v. Ruddock, 2022 IL App 

(1st) 173023, ¶ 57.

¶ 20 The State advances multiple theories as to why the circuit court’s April 1, 2016 order (and 

the subsequent orders) are not void, specifically (1) that a circuit court has the inherent authority 

to vacate its own orders, (2) defendant filed a postjudgment motion simultaneously with the 

December 18, 2015 notice of appeal, rendering the notice ineffective; and (3) the revestment 

doctrine obviates any jurisdictional issues. 

¶ 21 The first argument fails because that legal maxim simply does not apply; the issue here is 

whether the court lost jurisdiction before it attempted to exercise its inherent authority. See 

Abdullah, 2019 IL 123492, ¶ 34.

¶ 22 The State next argues that the record suggests defendant filed a motion to reconsider the 

circuit court’s summary dismissal order simultaneously with his notice of appeal, and as such, the 

notice of appeal had no effect while the motion to reconsider was pending, per Illinois Supreme 

Court Rule 606(b) (eff. Jan. 1, 2023).
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¶ 23 Rule 606(b) states, in relevant part, “When a timely posttrial or postsentencing motion 

directed against the judgment has been filed *** any notice of appeal filed before the entry of the 

order disposing of all pending postjudgment motions shall have no effect and shall be stricken by 

the trial court.” Ill. S. Ct. R. 606(b) (eff. Jan 1, 2023). We agree with the State that had defendant 

filed such a motion, his December 18, 2015 notice of appeal would have had no effect until that 

motion’s resolution. Unfortunately for the State, the record is clear that defendant never filed a 

postjudgment motion. The docket contains no mention of a motion to reconsider. A copy of the 

motion, or any document related to it, are also absent from the record. The only mention of such a 

motion is in defendant’s March 29, 2016 letter to the circuit court, which has no legal effect. A 

litigant’s reference to a motion that he intended to file, but never did, cannot be considered as a 

filed motion by a reviewing court. See Knapp v. Bulun, 392 Ill. App. 3d 1018, 1027-1028 (2009). 

Contrast this to the December 18, 2015 notice of appeal, which appears on the docket, and in the 

record with a court stamp. The only conclusion we can draw from the record on appeal is defendant 

did not file a postjudgment motion, and accordingly, the December 18, 2015 notice of appeal

divested the court of jurisdiction.

¶ 24 The State contends that because it is the appellant’s responsibility to provide a complete 

record, and a reviewing court must construe any deficiency in the record against the appellant, we 

should find that defendant filed a postjudgment motion based on his letter, then construe the 

motion’s absence from the record against him. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 

(1984). This argument must fail because there is no indication that something is absent from the 

record which we could then construe against defendant. Instead, the record is clear that defendant 

never filed a motion to reconsider, even if we read defendant’s letter as suggesting his intent to 

have done so. Finally, the State argues that the fact that the clerk apparently did not transmit the 
No. 1-21-0582 

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notice of appeal to the appellate court suggests a motion to reconsider was filed, but this amounts 

to pure speculation. 

¶ 25 The State’s final argument isthat we should apply the revestment doctrine to find the circuit 

court regained jurisdiction after defendant’s December 18, 2015 notice of appeal due to the parties’ 

conduct. The revestment doctrine is an exception to the general rule that a circuit court loses 

jurisdiction over a matter 30 days after the entry of final judgment. People v. Bailey, 2014 IL 

115459, ¶ 8. A court may apply the revestment doctrine only when proceedings occur after 30 days 

have elapsed from a final judgment, and both parties, “(1) actively participate in the proceedings; 

(2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the 

proceedings inconsistent with the merits of the prior judgment and support the setting aside of at 

least part of that judgment.” (Emphasis in original.) Id. ¶ 25. Reviewing courts have only applied 

the doctrine when the circuit court loses jurisdiction due to the lapse of 30 days after a final 

judgment. Wierzbicki v. Gleason, 388 Ill. App. 3d 921, 928 (2009).

¶ 26 We hold that application of the revestment doctrine is inappropriate here. First, the circuit 

court did not lose jurisdiction because 30 days elapsed from a final judgment; it lost jurisdiction 

because defendant filed a timely notice of appeal. In considering this exact scenario in Wierzbicki,

this court held that the revestment doctrine should not apply when the circuit court loses 

jurisdiction because a party filed a timely notice of appeal. Id. at 927-930. The Wierzbicki court 

explained that this is because any circuit court order entered after that court loses jurisdiction is 

void, and “a party may challenge a void order at any time and [this] claim may not be waived.” Id.

at 930 (citing People v. Brown, 225 Ill. 2d 188, 195 (2007)). Furthermore, even if the revestment

doctrine could theoretically apply to this situation, the elements would not be satisfied because the 

State’s conduct was not inconsistent with the merits of the summary dismissal order. See Bailey, 
No. 1-21-0582 

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2014 IL 115459, ¶ 25. Instead, the State filed a motion to dismiss in which it echoed the circuit 

court’s reasoning for summarily dismissing the petition.

3

¶ 27 We acknowledge that remand may be a frustrating outcome here. Defendant does not argue

his underlying claims are meritorious, and there have already been years of second-stage 

proceedings we must now declare void. As explained above, however, the law demands this 

outcome. Furthermore, upon remand, postconviction counsel will have the opportunity to review

the petition and amend if appropriate, meaning the second stage proceedings may not be identical 

to the previous, voided proceedings. See People v. Cotto, 2016 IL 119006, ¶ 27. 

¶ 28 CONCLUSION

¶ 29 Defendant filing of a timely notice of appeal from the circuit court’s erroneous summary 

dismissal order divested the circuit court of jurisdiction. Accordingly, we vacate the court’s 

November 20, 2015 summary dismissal order, and all subsequent orders in this matter, and remand 

for second-stage proceedings.

¶ 30 Vacated and remanded.

3 The State also argues that we should only consider whether its conduct was inconsistent 

with the finality of the judgment at issue, not the merits, citing People v Salcedo, 2011 IL App 

(1st) 083148, ¶ 28. Bailey, however, directly refutes this interpretation of the revestment doctrine. 

Bailey, 2014 IL 115459, ¶¶ 18 to 25.