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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Defendant, Jamie L. Willoughby, appeals from his conviction of one count of possession withintent to deliver more than 2,000 grams but not more than 5,000 grams of marijuana (720 ILCS550/5(f) (West 2002)). He contends that the trial court erred in denying his motion to suppressevidence that the Hanover police obtained in a search of his apartment. Because there was nodisposition of defendant's motion for a new trial, we conclude that we lack jurisdiction to hear theappeal.

A grand jury indicted defendant on a single count of possession of marijuana with intent todeliver. Early in the resulting proceedings, defendant moved to quash a warrant for the search of hisapartment and to suppress the evidence resulting from the search. The court denied the motion, anddefendant agreed to a stipulated bench trial to preserve the issue. The trial took place on April 22,2004; the court found defendant guilty. On May 19, 2004, defense counsel moved for a new trial,contending that the court had erred in denying the motion to suppress. Defense counsel filed thismotion without a notice of motion setting a hearing date. Instead, the motion was accompanied bywhat appears to be a form certificate of service intended for use between the public defender's officeand the State's Attorney's office. (Defense counsel used the same form with the motion to suppress.) On June 2, 2004, the court sentenced defendant to four years' imprisonment and fines. Defendantfiled his notice of appeal on June 10, 2004. The parties agree that the court never disposed of themotion for a new trial, and the record confirms this.

On appeal, defendant argues that the trial court erred in denying his suppression motion. TheState suggests that he waived the issue, contending that, to preserve the issue, he was required toraise it in a posttrial motion. Although defendant did raise the issue in his motion for a new trial, theState asserts that he abandoned the motion by failing to request a hearing on it. Neither partycontests whether this court has jurisdiction to consider the appeal. Nevertheless, a reviewing courthas an independent duty to ensure that it has jurisdiction to consider a case. People v. O'Connor, 313Ill. App. 3d 134, 135 (2000). We therefore address whether the fact that the trial court neverdisposed of the motion for a new trial deprives us of jurisdiction. We conclude that defendant'smotion was a timely posttrial motion directed against the judgment and that he gave no affirmativeindication that he abandoned it, other than by filing a notice of appeal. Thus, defendant's notice ofappeal was premature, and we lack jurisdiction.

Supreme Court Rule 606(b) states as follows:

"When a timely post-trial or post-sentencing motion directed against the judgment has beenfiled *** any notice of appeal filed before the entry of the order disposing of all pendingpost-judgment motions shall have no effect and shall be stricken by the trial court. *** Thisrule applies whether the timely post-judgment motion was filed before or after the date onwhich the notice of appeal was filed." 188 Ill. 2d R 606(b).

Thus, when there has been no disposition of a timely posttrial motion directed against the judgment,a notice of appeal does not vest the appellate court with jurisdiction. Cf. People v. Rucker, 346 Ill.App. 3d 873, 880-82 (2004) (holding that the appellate court had jurisdiction over an appeal despitethe pendency of the defendant's motion only because the motion was not properly before the trialcourt).

Here, as defendant's motion for a new trial sought to set aside his conviction, it was clearlya posttrial motion directed against the judgment. Further, section 116--1(b) of the Code of CriminalProcedure of 1963 (725 ILCS 5/116--1(b) (West 2002)) provides that a "written motion for a newtrial shall be filed by the defendant within 30 days following the entry of a finding or the return of averdict." Defendant filed his motion 26 days after the court found him guilty, so his motion wastimely as well.

Although the trial court did not dispose of defendant's motion, the State contends thatdefendant abandoned it. The State relies on our opinion in People v. Flynn, 341 Ill. App. 3d 813(2003), which contains language that might appear to support the State's contention. However, Flynnultimately demonstrates why the State's contention fails.

In Flynn, we determined that the defendant had abandoned his posttrial motions, which he hadfiled prior to his sentencing hearing. We first stated that "it is the responsibility of the party filing amotion to request the trial judge to rule on it [citation], and when no ruling has been made on amotion, the motion is presumed to have been abandoned absent circumstances indicating otherwise[citations]." Flynn, 341 Ill. App. 3d at 821-22. We went on to state that the defendant "never askedthe trial court to rule on the motions at the sentencing hearing. Instead, [the] defendant abandonedhis posttrial motions, when, just six days after the trial court entered its sentencing order, he filed anotice of appeal." Flynn, 341 Ill. App. 3d at 822. Here, noting that defendant failed to request ahearing on his motion for a new trial, the State asserts that he similarly abandoned it. We disagree.

In Chand v. Schlimme, 138 Ill. 2d 469 (1990), the supreme court discussed abandonment ofa posttrial motion in the context of the then-effective version of Supreme Court Rule 303(a)(2) (107Ill. 2d R. 303(a)(2)), which, in its relevant portions, was almost identical to the present version ofRule 606(b). Specifically, Rule 303(a)(2) stated:

"When a timely post-trial motion has been filed by any party *** a notice of appealfiled before the entry of the order disposing of the last pending post-trial motion shall haveno effect and shall be withdrawn by the party who filed it ***. This is so whether the timelypost-trial motion was filed before or after the date on which the notice of appeal was filed." 107 Ill. 2d R. 303(a)(2).

In addressing the possible means of abandonment, the court stated:

"Rule 303 makes it clear that filing of a notice of appeal no longer acts as anabandonment by operation of law. That is, *** a notice of appeal that is filed during thependency of a post-trial motion *** has no effect. A notice of appeal that has no effect,furthermore, cannot serve to abandon an otherwise effective post-trial motion ***." Chand,138 Ill. 2d at 478.

The court concluded: "We are not saying that a party may not abandon its post-trial motion, but todo so there must be a more affirmative indication of abandonment than the mere filing of a notice ofappeal before the disposition of the post-trial motion." Chand, 138 Ill. 2d at 480.

Given the similarity between Rule 303(a)(2) and Rule 606(b), we consider the supreme court'scomments in Chand to be equally applicable here. Under Rule 606(b), the filing of a notice of appealdoes not abandon a timely posttrial motion directed against the judgment. Further, as abandonmentrequires "a more affirmative indication *** than the mere filing of a notice of appeal" (Chand, 138Ill. 2d at 480), the failure to procure a hearing on the motion, which is not an affirmative indicationat all, does not suffice either. Although we acknowledge the general presumption that a party filinga motion abandons the motion by failing to request a hearing and obtain a ruling, it simply does notapply here.⁽¹⁾

In Flynn, we had no need to suggest otherwise. Indeed, although we noted that the defendantfiled a notice of appeal without procuring a hearing on his posttrial motions, we did so whileextensively noting that he also gave more affirmative indications of his abandonment of his motions. Prior to the sentencing hearing, the trial court reminded the defendant of his motions, and thedefendant "responded that he 'won't really care [about the motions] after the sentencing' and that hewanted to 'get sentencing closure.' " Flynn, 341 Ill. App. 3d at 822. When the court brought themotions up again, the defendant reiterated that he wanted to be sentenced. At sentencing, the Statementioned the motions, and the defendant responded that he wanted " 'to wait' " on them. Flynn, 341Ill. App. 3d at 822. After sentencing, the State inquired about the status of the motions, and the courtstated that the defendant was " 'hold[ing]' " the motions and had the choice of bringing them or not. Flynn, 341 Ill. App. 3d at 822. It was in this context that we determined that the defendantabandoned his motions when, instead of ever asking the trial court to rule on them, he filed a noticeof appeal. Although that conduct alone would not have constituted abandonment of the motions, thedefendant's more affirmative indications that he would not pursue them established that abandonmenthad in fact occurred.

In this case, beyond the filing of the notice of appeal, the record contains no affirmativeindication that defendant abandoned his motion for a new trial. Thus, under Rule 606(b), his noticeof appeal was ineffective, and we must dismiss his appeal for lack of jurisdiction.

Appeal dismissed.

GROMETER and KAPALA, JJ., concur.

1. At least for a postsentencing motion, some authority suggests that the failure to schedule ahearing on the motion can mean that the motion is not properly before the court. Citing section 5--8--1(c) of the Unified Code of Corrections (730 ILCS 5/5--8--1(c) (West 1992)), which states thata motion to reduce a sentence is not timely unless it is filed "together with a notice of motion, whichnotice of motion shall set the motion on the court's calendar on a date certain within a reasonable timeafter the date of filing," a Fourth District panel in People v. Jennings, 279 Ill. App. 3d 406, 413(1996), held that the lack of a disposition of a motion to reduce a sentence that the defendant neverscheduled for hearing did not invalidate the notice of appeal. Section 5--8--1(c), by settingrequirements for a postsentencing motion to be deemed timely, limits which motions trigger theprovisions of Rule 606(b). No such statute exists for posttrial motions.