People v. Marker

No. 2--06--1071 Filed: 5-1-08
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellant, )
)
v. ) Nos. 06--CF--69
) 06--DT--57
)
BRENT E. MARKER, ) Honorable
) James M. Wilson,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________________________

JUSTICE BYRNE delivered the opinion of the court:

Following a traffic stop by an Oswego police officer, defendant was arrested and charged

with driving under the influence of drugs (625 ILCS 5/11--501(a)(6) (West 2006)) and driving under

the combined influence of drugs and alcohol (625 ILCS 5/11--501(a)(5) (West 2006)) (DUI) in case

number 06--DT--57. As a result of the same arrest, defendant was also charged with unlawful

possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2006)) and unlawful

possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2006))

in case number 06--CF--69. Defendant filed a motion to quash his arrest and suppress evidence, and

the trial court granted the motion on August 11, 2006. On September 7, 2006, the State moved to

reconsider the trial court's ruling. The trial court denied the motion to reconsider on September 28,

2006, and on October 23, 2006, the State filed a certificate of impairment (see People v. Young, 82
No. 2--06--1071

Ill. 2d 234 (1980)) and a notice of appeal. We conclude that the State's notice of appeal was not

timely and we therefore dismiss the State's appeal.

On July 11, 2007, defendant filed a motion to dismiss this appeal for lack of jurisdiction.

The State responded to the motion on July 19, 2007. At that time, the State's reply brief was not yet

due and no panel of this court had been assigned to decide the appeal. A panel of this court hearing

motions denied the motion to dismiss on August 1, 2007, and shortly thereafter the appeal was

assigned to a different panel of this court for disposition. Defendant later filed a "Motion to Submit

Jurisdictional Motion With Issues Addressed in the Briefs and Arguments." Defendant asks us to

again consider our jurisdiction, despite the earlier denial of his motion to dismiss. The motion is

allowed. The motion panel's ruling does not foreclose us from revisiting the question of jurisdiction.

In re Marriage of Waddick, 373 Ill. App. 3d 703, 705 (2007). Indeed, "[a]lthough the motion panel

denied the motion to dismiss, this panel has an independent duty to determine whether we have

jurisdiction and to dismiss an appeal if we do not." Waddick, 373 Ill. App. 3d at 705.

In his motion to dismiss, defendant argues, inter alia, that the State had only 30 days to file

its notice of appeal after the trial court granted the motion to quash and suppress on August 11,

2006, and that its motion to reconsider the trial court's ruling did not extend the period for filing the

notice of appeal. Defendant forthrightly acknowledges that his argument is contrary to a number

of decisions from other districts of the appellate court, but he urges us to take a fresh look at the

issue. Defendant directs our attention to six decisions: People v. Van Matre, 164 Ill. App. 3d 201

(1988), People v. Rimmer, 132 Ill. App. 3d 107 (1985), People v. McBride, 114 Ill. App. 3d 75

(1983), People v. Clark, 80 Ill. App. 3d 46 (1979), People v. Stokes, 49 Ill. App. 3d 296 (1977), and

People v. Robins, 33 Ill. App. 3d 634 (1975).

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Two of the cases defendant cited--McBride and Clark-- have little or no bearing on the issue

before us. The question in Clark was whether the defendant's notice of appeal was timely where it

was filed within 30 days following entry of an order: (1) denying the defendant's motion to

reconsider the denial of his motion to dismiss and (2) reinstating a previously vacated guilty plea

and sentence. McBride stands for the proposition that the State may move for reconsideration of

a suppression order prior to filing a notice of appeal. McBride, 114 Ill. App. 3d at 80. However,

appellate jurisdiction was not at issue in McBride, and the court did not address the question of

whether a motion to reconsider would extend the time for bringing an appeal. A third decision,

Robins, does not address the precise jurisdictional issue in this case: whether a motion by the State

to reconsider a suppression ruling tolls the time for filing a notice of appeal. However, because

cases addressing that issue have relied (either directly or indirectly) on Robins, it is necessary to

consider it here.

Moreover, we are aware of two cases not cited by defendant--People v. Smith, 232 Ill. App.

3d 121 (1992), and People v. Burks, 355 Ill. App. 3d 750 (2004)--that also stand for the proposition

that a motion to reconsider an order suppressing evidence tolls the time for taking an appeal from

that order. Thus, we have six decisions to examine, five of which involve precisely the same issue

now before us. We begin with Stokes. In that case (as in the present one), the trial court granted

the defendant's motion to quash and suppress, and the State filed a notice of appeal within 30 days

of the denial of its motion to reconsider, but more than 30 days after the ruling granting the motion

to quash and suppress. The Stokes court noted that the trial court retains the power to modify or

vacate its judgment for a period of 30 days and that the State may appeal any order that has the

substantive effect of suppressing evidence. Stokes, 49 Ill. App. 3d at 298. Ultimately, however,

Stokes relied on Robins in holding that the motion to reconsider extended the time for the State to

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file its notice of appeal. Unlike Stokes, Robins did not involve review of a suppression ruling. In

Robins, the State appealed from an order dismissing a criminal complaint because the applicable

statute of limitations had expired. Stokes relied on the following language from Robins:

"Public policy clearly favors correction of errors at the trial level. We have previously held

that a motion to reconsider is an appropriate method to be utilized in directing the attention

of the trial judge to [a] claim of error. (Childress v. State Farm Mutual Automobile

Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492.) The time for appeal

commenced with the denial of that motion." Robins, 33 Ill. App. 3d at 636.

Defendant correctly points out that Robins based its holding on a decision in a civil appeal--

Childress. Civil and criminal appeals are governed by different rules, although there is substantial

overlap (see 210 Ill. 2d R. 612). When Childress was decided, Supreme Court Rule 303(a) (36 Ill.

2d R. 303(a)), which applies to civil appeals, provided that, if a party filed a timely posttrial motion,

the notice of appeal was due within 30 days after entry of the order disposing of the motion.

However, the rule governing the perfection of appeals in criminal proceedings tolled the time for

filing the notice of appeal only "if the appellant applies for probation or files a motion for a new trial

or in arrest of judgment." 36 Ill. 2d R. 606(b). Thus, Childress provides no analytical support for

Robins.

We need not decide, however, whether Robins was correctly decided. Even if Rule 303(a)'s

tolling principle applied in criminal cases, Robins, like Childress, nevertheless involved a final

judgment or order. Stokes, however, involved an interlocutory order--one suppressing evidence.

See People v. Leach, 245 Ill. App. 3d 644, 653 (1993) ("A suppression order does not finally

adjudicate a criminal prosecution, but only bars certain evidence from the impending trial"). Even

in civil cases, "a motion attacking an interlocutory order will not toll the running of the 30-day

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deadline for the filing of the notice of appeal." Craine v. Bill Kay's Downers Grove Nissan, 354 Ill.

App. 3d 1023, 1026 (2005). Thus there is no valid precedent--civil or criminal--for the tolling rule

announced in Stokes.

All the same, the dissent endorses the result in Stokes, asserting that "[i]t is the reasoning of

the case, the basis in public policy, that gives the tolling rule force, not solely its provenance."

(Emphasis added.) Slip op. at 22. Thus, the dissent does not hold Robins and Stokes up as models

of legal analysis. What redeems these decisions, in the dissent's eyes, is the public policy they

express. The dissent's thesis is straightforward: there is support in the case law for the proposition

that public policy favors correction of errors at the trial level, and tolling the time for filing an appeal

advances that public policy objective.

If public policy is seen as the driving force in fashioning principles of appellate jurisdiction,

things seem to fall into place--at least initially. Childress's tolling rule in civil cases conforms to the

applicable supreme court rule and to the public policy favoring correction of errors in the trial court.

The same public policy supports Robins's application of the tolling rule to final judgments in

criminal cases even though, at that time, no supreme court rule provided for such a result. The

dissent's reasoning runs less smoothly, however, with respect to interlocutory orders. In the dissent's

view, public policy supports extending the tolling rule to interlocutory appeals in criminal cases,

even if no supreme court rule so provides and even though the rule applicable in civil cases does not

permit tolling. The dissent notes that, in civil cases, interlocutory orders from which an appeal may

be taken ordinarily involve some burden or hardship, and the public policy favoring prompt

appellate review of such orders "trumps the public policy preference of allowing trial courts to

correct their errors in order to prevent needless appeals." Slip op. at 23. According to the dissent,

this public policy does not apply to a defendant who has successfully moved to suppress evidence.

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We disagree. Permitting the State to delay its appeal, possibly for months, can cause significant

hardship. First, the delay prolongs the anxiety attendant to facing criminal charges. An even more

tangible hardship arises because a defendant is ordinarily entitled to be released from custody

without bail while an appeal by the State is pending. See 210 Ill. 2d R. 604(a)(3) ("A defendant

shall not be held in jail or to bail during the pendency of an appeal by the State *** unless there are

compelling reasons for his or her continued detention"). In contrast, so far as we are aware, a

defendant has no right to be released from custody merely because he has prevailed on a motion to

suppress evidence. Thus a defendant who has not been admitted to bail, or who cannot afford to

post bail, may very well have to remain in custody for several months while the motion for

reconsideration is adjudicated.

That said, our fundamental disagreement with the dissent's approach to the jurisdictional

issue--at least as that approach takes shape in the first section of the dissent--is that it treats public

policy as the polestar of the jurisdictional analysis. Public policy is relevant to the inquiry insofar

as it finds expression in our supreme court's rules governing interlocutory appeals. But the law

could not be more clear that the rules themselves are paramount. Our state constitution provides:

"Appeals from final judgments of a Circuit Court are a matter of right to the

Appellate Court in the Judicial District in which the Circuit Court is located except in cases

appealable directly to the Supreme Court and except that after a trial on the merits in a

criminal case, there shall be no appeal from a judgment of acquittal. The Supreme Court

may provide by rule for appeals to the Appellate Court from other than final judgments of

Circuit Courts." (Emphasis added.) Ill. Const. 1970, art. VI, §6.

Supreme Court Rule 604(a) (210 Ill. 2d R. 604(a)) permits interlocutory appeals from orders

suppressing evidence, and Supreme Court Rule 606 (210 Ill. 2d R. 606) specifies the manner in

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which such appeals are perfected. We thus may not follow Stokes solely on the strength of a public

policy rationale, ignoring Stokes's failure to justify its result with reference to the supreme court

rules governing appeals from suppression orders. We may not simply substitute our own view of

sound public policy for the express command of these rules. The question before us is not whether

it is desirable to toll the time for filing a notice of appeal while a motion to reconsider is pending.

The question, rather, is whether the applicable supreme court rules call for doing so.

Before tackling that question, we briefly consider the four remaining decisions applying a

tolling rule: Van Matre, Burks, Rimmer, and Smith. Van Matre relied on Stokes and Robins (Van

Matre, 164 Ill. App. 3d at 203), and Burks relied on Van Matre (Burks, 355 Ill. App. 3d at 754).

Neither Van Matre nor Burks contains any independent analysis of the jurisdictional issue, so those

cases are no more persuasive than Stokes.

In Rimmer, the trial court granted a motion to quash and suppress. The State later filed a

motion to admit certain statements based on "attenuating circumstances." Rimmer, 132 Ill. App. 3d

at 111. The trial court denied the motion and the State appealed. On appeal, the court held that the

motion to admit statements was, in substance, a motion to reconsider the suppression ruling. The

court held that the appeal was timely, but cited no authority and offered no analysis in support of

the implicit premise that a motion for reconsideration tolls the time for appealing from an order

suppressing evidence. See Rimmer, 132 Ill. App. 3d at 111.

Smith cited People v. Williams, 138 Ill. 2d 377 (1990), for the proposition that "[a] timely

motion for reconsideration of a ruling granting a suppression motion will toll the time to file a notice

of appeal." Smith, 232 Ill. App. 3d at 127. Williams held that, where the State does not appeal from

an adverse suppression ruling or seek reconsideration of it during the time for taking an appeal, it

cannot later relitigate the issue in the trial court. Thus, Williams is not authority for the proposition

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stated in Smith. The dissent acknowledges that Smith misstates the holding of Williams. Slip op.

at 24. However, the dissent notes that "Williams also reasoned that 'statutory and judicial policy

favors giving a circuit court "the opportunity to reconsider final and appealable judgments and

orders within 30 days of their entry" as long as no notice of appeal has yet been filed.' " Slip op. at

24, quoting Williams, 138 Ill. 2d at 394, quoting People v. Heil, 71 Ill. 2d 458, 461 (1978). This

reasoning has no application here, as the trial court did not reconsider a final judgment and it did not

do so within 30 days.

The dissent notes that the principle was extended to interlocutory orders in People v. Mink,

141 Ill. 2d 163 (1990). The Mink court stated that "[a] court in a criminal case has inherent power

to reconsider and correct its own rulings, even in the absence of a statute or rule granting it such

authority" and that this power "extends to interlocutory, as well as final, judgments." Mink, 141 Ill.

2d at 171. The issue before us, however, is not whether the court has the power to reconsider its

rulings, but whether the pendency of a motion for reconsideration affects the requirements for

perfecting an interlocutory appeal. The dissent's reasoning is based on public policy, but Mink said

nothing about public policy. And if there are any public policy implications of a trial court's

inherent power to reconsider its interlocutory rulings, the implications should be the same in a civil

case where a trial court has the same power. See, e.g., Catlett v. Novak, 116 Ill. 2d 63, 68 (1987).

However, as we held in Craine, a motion to reconsider has no effect on the time for perfecting an

appeal from an interlocutory order in a civil case. We note that the appeal in Mink was from a final

judgment, to wit, the reinstatement of the defendant's conviction after the trial court, on the State's

motion for reconsideration, vacated an order granting the defendant a new trial. Mink says nothing

about tolling; before the trial court granted the motion to reconsider, there was no order from which

an appeal could be taken. Accord People v. Hammond, 18 Ill. App. 3d 693, 696 (1974).

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We do not demand symmetry in civil and criminal appeals. Rather, we ask only for

adherence to the applicable supreme court rules governing appellate jurisdiction in each setting,

whether or not they yield similar results in procedurally analogous cases. Our point in once again

citing Craine is simply that a tolling rule is not a necessary corollary of the trial court's inherent

power to correct its own errors, as the dissent evidently believes.1

We now turn our attention to the supreme court rules that, as previously noted, govern the

jurisdictional question in this case. Supreme Court Rule 604(a)(1) (210 Ill. 2d R.604(a)(1)) states

in pertinent part that "[i]n criminal cases the State may appeal *** from an order or judgment the

substantive effect of which results in *** suppressing evidence," but does not specify when the

State's notice of appeal must be filed. The time for filing the notice of appeal in a criminal case is

the subject of Supreme Court Rule 606(b), which provides:

1
See slip op. at 27 ("In order to give effect to [the court's inherent power to correct errors in

interlocutory orders], the tolling rule must apply to motions to reconsider; otherwise an appellant

will have to choose between taking a chance that the trial court will correct its error, or losing the

right to appeal"). We note that the dissent's view presupposes that it is impossible or at least

impractical for the trial court to rule on a motion to reconsider within 30 days after the initial

suppression order. However, as the dissent candidly acknowledges, in several reported decisions

reconsideration of the suppression ruling was accomplished within this time frame, allowing the

State to perfect its appeal without the benefit of a tolling rule. See slip op. at 35, citing People v.

Gott, 346 Ill. App. 3d 236 (2003); People v. Evans, 314 Ill. App. 3d 985 (2000); People v. DeBlieck,

181 Ill. App. 3d 600 (1989); People v. Zeigler, 106 Ill. App. 3d 783 (1982).

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"Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk

of the circuit court within 30 days after the entry of the final judgment appealed from or if

a motion directed against the judgment is timely filed, within 30 days after the entry of the

order disposing of the motion. 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. Upon striking the notice of appeal, the trial court shall forward

to the appellate court within 5 days a copy of the order striking the notice of appeal, showing

by whom it was filed and the date on which it was filed. This rule applies whether the timely

postjudgment motion was filed before or after the date on which the notice of appeal was

filed. A new notice of appeal must be filed within 30 days following the entry of the order

disposing of all timely postjudgment motions. Within 5 days of its being so filed a copy of

the notice of appeal or an amendment of the notice of appeal shall be transmitted by the clerk

of the circuit court to the clerk of the court to which the appeal is taken. Except as provided

in paragraph (c) below, and in Rule 604(d), no appeal may be taken from a trial court to a

reviewing court after the expiration of 30 days from the entry of the order or judgment from

which the appeal is taken. The clerk of the appellate court shall notify any party whose

appeal has been dismissed under this rule." 210 Ill. 2d R. 606(b).

We interpret a supreme court rule in the same manner as a statute. People v. King, 349 Ill.

App. 3d 877, 878 (2004). Our "primary objective is to ascertain and give effect to the drafter's

intent," the best indication of which is "the rule's language, given its plain and ordinary meaning."

King, 349 Ill. App. 3d at 878.

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As defendant correctly notes, the first sentence of Rule 606(b) provides that a notice of

appeal must be filed within 30 days of a final judgment unless a motion directed against the

judgment is timely filed. Thus, the tolling rule embodied in this sentence and the four that follow

applies to final judgments. The penultimate sentence of the rule, which is not limited to final

judgments, contains no explicit tolling provision. As applied to final judgments, the first five

sentences of the rule and the penultimate sentence could produce different results. The conflict may

be resolved, however, by applying the principle of construction that, "[w]here a general statutory

provision and a more specific statutory provision relate to the same subject, we will presume that

the legislature intended the more specific provision to govern." Moore v. Green, 219 Ill. 2d 470,

480 (2006). The first five sentences are more specific, as they apply only to final judgments. Thus,

a timely motion directed against a final judgment will toll the time for filing a notice of appeal from

that judgment. However, an appeal from an interlocutory order may not be taken after the expiration

of 30 days from the entry of the order. Our interpretation is consistent with our decision in King

where we concluded that, because the penultimate sentence of Rule 606(b) is not limited to appeals

from final judgments, it governs appeals from interlocutory orders denying motions to dismiss on

grounds of former jeopardy. King, 349 Ill. App. 3d at 880.

The dissent suggests that the possible conflict between the first five sentences of the rule and

the penultimate sentence justifies an extratextual approach to construction. According to the dissent,

the principle of "acquiescence" should be applied so as to construe the rule in accordance with

Burks, Smith, Van Matre, Rimmer, and Stokes.

"The general rule is, that where terms used in the statute have acquired a settled

meaning through judicial construction and are retained in subsequent amendments or

re-enactments of the statute, they are to be understood and interpreted in the same sense

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theretofore attributed to them by the court unless a contrary intention of the legislature is

made clear. The judicial construction becomes a part of the law, and it is presumed that the

legislature in passing the law knew such construction of the words in the prior enactment."

People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 78-79 (1935).

Similarly, "where the legislature chooses not to amend terms of a statute after judicial

construction, it will be presumed that it has acquiesced in the court's statement of legislative intent."

R.D. Masonry, Inc. v. Industrial Comm'n, 215 Ill. 2d 397, 404 (2005). However, the presumption

"is merely a jurisprudential principle; it is not a rule of law." People v. Perry, 224 Ill. 2d 312, 331

(2007). A leading commentator has criticized the principle of acquiescence as an unreliable test of

legislative intent. See 2B N. Singer, Sutherland on Statutory Construction §49.10 (6th ed. 2000).

Although similar criticism has not been voiced in reported Illinois decisions, it is clear that our

supreme court has not always scrupulously adhered to the acquiescence principle. For instance, in

McMahan v. Industrial Comm'n, 183 Ill. 2d 499 (1998), the court repudiated Childress v. Industrial

Comm'n, 93 Ill. 2d 144 (1982)--a decision interpreting language from section 16 of the Workers'

Compensation Act (820 ILCS 305/16 (West 1992))--because "[t]he court's holding in Childress was

premised on an overly narrow and incorrect reading of the relevant statutory provisions." McMahan,

183 Ill. 2d at 511. The McMahan court was evidently unfazed by the fact that, during the 16 years

since Childress was decided, the General Assembly had amended section 16 three times (see Pub.

Act 83--341, §3, eff. September 14, 1983; Pub. Act 83--1125, §1, eff. June 30, 1984; Pub. Act 86--

998, §1, eff. December 18, 1989), but had not touched the language construed by the supreme court

in Childress.

It is also debatable whether the threshold requirement for application of the principle--that

the terms used in Rule 606(b) "have acquired a settled meaning through judicial construction"--has

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been met here. None of the decisions on which the dissent relies actually explored the language of

Rule 606(b). As we noted, the decisions were based on public policy rather than construction of

Rule 606(b), which was mentioned only parenthetically. For all practical purposes, the cases simply

ignored the rule. We question whether this may be properly called "judicial construction."

Moreover, although supreme court rules are construed in the same manner as statutes,

application of the acquiescence principle to a supreme court rule is analytically problematic. The

dissent's argument is that the supreme court has had opportunities to amend Rule 606(b) to correct

the results in Stokes and similar cases; by not availing itself of these opportunities, the court has

acquiesced in those results. In fact, the supreme court had even more direct opportunities to

repudiate the tolling rule. Leave to appeal was sought in Burks, Smith, and Van Matre. The

supreme court denied leave to appeal in all three cases. See People v. Burks, 215 Ill. 2d 602 (2005);

People v. Smith, 146 Ill. 2d 647 (1992); People v. Van Matre, 119 Ill. 2d 572 (1988). If the failure

to amend a court rule after it has been construed by a lower court amounts to acquiescence in the

construction, then it would also seem that denial of a petition for leave to appeal should signal

acquiescence. Indeed, by seeking leave to appeal, a party specifically brings the case construing the

rule to the supreme court's attention, so the argument for presuming acquiescence should be that

much stronger when leave to appeal is denied. It is well established, however, that the denial of a

petition for leave to appeal "has no precedential effect and in no way amounts to a consideration of

the merits of the case[]" and does not "indicate approval of the appellate court's action." Relph v.

Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436, 442 (1981). It is

incongruous to presume acquiescence when the court fails to amend a rule, even though

acquiescence cannot be presumed when the court forgoes a direct opportunity to correct an

erroneous construction of a rule.

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The dissent also offers an alternative textual analysis of Rule 606(b)'s first sentence, which

states, in pertinent part, "the notice of appeal must be filed with the clerk of the circuit court within

30 days after the entry of the final judgment appealed from or if a motion directed against the

judgment is timely filed, within 30 days after the entry of the order disposing of the motion."

(Emphasis added.) 210 Ill. 2d R. 606(b). The dissent suggests that the word "final" modifies only

the first instance of the word "judgment," not the second. Under this reading, "a notice of appeal

must be filed within 30 days of the final judgment, or within 30 days after the ruling on a timely

motion to reconsider directed against any appealable judgment, final or interlocutory." Slip op. at

46. In our view, the dissent's reading is at odds with the fact that the second time the word

"judgment" appears, it is preceded by the definite article "the," which is used, inter alia, "as a

function word to indicate that a following noun or noun equivalent refers to someone or something

previously mentioned or clearly understood from the context of the situation." Webster's Third New

International Dictionary 2368 (1986). The only reasonable reading of the first sentence, then, is that

"the judgment" encapsulates the term "final judgment appealed from."

We note that the dissent's reading of Rule 606(b) would appear to foreclose any appeal from

an interlocutory order if no motion to reconsider has been filed. The dissent claims this is not so,

because the penultimate sentence of the rule permits an appeal from an interlocutory order within

30 days of its entry. This view not only ignores the definite article in the first sentence, but also fails

to give any effect to the word "final." If the dissent is correct that appeals from final judgments and

interlocutory orders may, in either case, be taken within 30 days of the judgment or order itself, or

within 30 days of the entry of an order disposing of the motion, the word "final" serves no

discernible purpose. It would appear that, without the word "final," the results would be exactly the

same.

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The dissent's remaining argument for recognition of a tolling rule invokes considerations of

stare decisis. But stare decisis considerations do not apply to decisions from other judicial districts

of the appellate court. People v. DeVoss, 150 Ill. App. 3d 38, 40 (1986). The decisions that the

dissent relies on are not from the Second District; consequently, we are not obliged to follow them.

According to the dissent, DeVoss confuses the doctrine of stare decisis with the principle of

hierarchical decision making, under which lower courts are bound by the decisions of higher ones.

We disagree. Nowhere does DeVoss assert that stare decisis governs a lower court's treatment of

the decision of a higher court; it asserts only that stare decisis does not govern one appellate court

district's treatment of the decision of another appellate court district. This is not at all a controversial

proposition; indeed, among the circuits of the United States Court of Appeals, which are analogous

to the districts of the Illinois Appellate Court, "there is no rule of intercircuit stare decisis." Taylor

v. Charter Medical Corp., 162 F.3d 827, 832 (5th Cir. 1998). Thus, although of course we may defer

to other districts' decisions on the basis of comity (see, e.g., Villalobos v. F.D.L. Foods, Inc., 298

Ill. App. 3d 132, 141 (1998)), we are free to disregard them without any concern for stare decisis.

The dissent further argues that, if we decline to follow the course set by Stokes and its

progeny, we should apply our decision only prospectively in accordance with the principles

described in Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 91 (1997). We decline to do

so at this juncture. In Aleckson, our supreme court reviewed our decision to apply one of our earlier

decisions--Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726 (1994)--only

prospectively. Mueller--which was decided while Aleckson was pending before this court--held that

an administrative decision pertaining to the promotion of a police officer is subject to the

Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1992)) and that an action seeking

review of such a decision must be filed within 35 days after the decision is issued. Application of

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the Administrative Review Law in Aleckson would have resulted in dismissal of the plaintiffs'

action. We concluded that to do so would be unjust because the plaintiffs had filed their action in

compliance with the law as it existed prior to Mueller.

Our supreme court stated:

"Generally, when a court issues an opinion, the decision is presumed to apply both

retroactively and prospectively. [Citations.] That presumption can be overcome in two

types of circumstances. First, the issuing court itself may expressly state that its decision

will be applied prospectively only. [Citation.] Second, a later court may, under certain

circumstances, override the presumption by declining to give the previous opinion

retroactive effect, at least with respect to the parties appearing before the later court. The

present case falls under the latter category. Accordingly, we will confine our discussion to

cases which involve situations in which a later court is deciding whether to give a previous

decision prospective effect only." Aleckson, 176 Ill. 2d at 86-87.

The defendants argued that only the supreme court had the power to give a decision only prospective

effect. The Aleckson court flatly rejected the argument. Aleckson, 176 Ill. 2d at 91.

Although Aleckson clearly stands for the proposition that the appellate court has the power

to give a decision only prospective effect, it would seem that the exercise of that power necessarily

presupposes that the appellate court has jurisdiction over the appeal. Our jurisdiction is, after all,

the basis of our power to act. It is one thing to hold that a reviewing court that has jurisdiction to

hear an appeal may apply a prior decision only prospectively. It is quite another to hold that a

reviewing court that has found its jurisdiction lacking may nonetheless act outside its jurisdiction

on the theory that it is empowered to apply its jurisdictional decision only prospectively. To so hold

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would empower the reviewing court to exercise jurisdiction where none exists. We are hesitant to

extend Aleckson in this manner without clear direction from our supreme court.

We need not definitively resolve the question in this case, however. As Aleckson

demonstrates, the question of prospectivity may be taken up in subsequent cases as is necessary or

appropriate. Moreover, it has long been the law that, "[o]n those occasions when prospective

application is warranted, the holding of the court still controls the case at bar; to not apply the rule

would render it dictum and deprive the challenger the fruits of his efforts in questioning the old,

erroneous rule." John Carey Oil Co. v. W.C.P. Investments, 126 Ill. 2d 139, 149 (1988); see also

Department of Transportation ex rel. People v. Hunzicker, 342 Ill. App. 3d 588 (2003). Thus, even

if we were now to rule that our holding should be only prospective, we would still be obliged to

dismiss the State's appeal.

In sum, the order quashing defendant's arrest and suppressing evidence was not a final

judgment, so the State's motion to reconsider did not toll the 30-day period for filing a notice of

appeal. That period expired on September 11, 2006. The State's notice of appeal, filed on October

23, 2006, was untimely and did not confer jurisdiction on this court.

For the foregoing reasons, we dismiss this appeal for lack of jurisdiction. However, because

we are creating a split of authority, and because a substantial number of cases involving this issue

are currently pending, we have, "on our own motion, granted a certificate of importance [(Official

Reports Advance Sheet No. 26 (December 20, 2006), R. 316, eff. December 6, 2006)] and directed

the same to issue." People v. Butchek, 22 Ill. App. 3d 391, 403 (1974); see also Scott v. Industrial

Comm'n, 184 Ill. 2d 202, 215 (1998) (noting without objection appellate court's sua sponte issuance

of certificate of importance).

Appeal dismissed.

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GILLERAN JOHNSON, J., concurs.

JUSTICE O'MALLEY, dissenting:

This case poses the question of whether the State's timely filed motion to reconsider will toll

the 30-day period in which to file a notice of appeal from the trial court's grant of the defendant's

motion to suppress evidence. The issue between the majority and the dissent, however, is whether

this court should follow the doctrine of stare decisis, even though, arguably, the rationale

underpinning the tolling rule is wrong, but well established. Central to the doctrine of stare decisis

is the idea that, usually, it is more important that the law be settled than it be settled correctly.

People v. Jones, 207 Ill. 2d 122, 134 (2003). Because the tolling rule has been established and

unquestioningly followed, even by this court, for more than 30 years, I respectfully dissent from the

majority's alternative. Additionally, I offer several rationales that independently support the tolling

rule as it is now articulated.

As my disagreement with the majority is its abandonment of settled precedent, I first trace

the history of that precedent. Then I discuss stare decisis and how the precedent has been implicitly

followed. Last, I offer an alternate interpretation of the rule that avoids the necessity of abandoning

the long-standing tolling rule.

A. Stare Decisis

1. History of the Tolling Rule

The majority correctly identifies the cases comprising all of the reported cases that have

considered expressly the question of whether the State's motion to reconsider a grant of a defendant's

motion to suppress evidence will toll the 30-day period for filing a notice of appeal to vest the

appellate court with jurisdiction. I note that each of the cases holds that the motion to reconsider

tolls the time to appeal and that a notice of appeal filed within 30 days after the resolution of the

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motion to reconsider will be deemed timely, or else cites to a case so holding. 2 See People v.

Robins, 33 Ill. App. 3d 634, 636 (1975) (time period for filing notice of appeal commences with the

disposition of the motion to reconsider); People v. Stokes, 49 Ill. App. 3d 296, 298 (1977) (same,

relying on Robins); People v. Clark, 80 Ill. App. 3d 46, 48-49 (1979) (the defendant's notice of

appeal timely when it was filed within 30 days of the denial of the defendant's motion to reconsider,

relying on Robins); People v. McBride, 114 Ill. App. 3d 75, 80 (1983) (the State may file a motion

to reconsider an order of suppression before it files a notice of appeal, relying on People v. Wagner,

100 Ill. App. 3d 1051, 1053 (1981) (appeal is not the exclusive remedy available to the State to

challenge a suppression order; the State may move the trial court to reconsider its ruling, relying on

Robins and Stokes)); People v. Rimmer, 132 Ill. App. 3d 107, 111 (1985) (time for filing notice of

appeal commenced with the disposition of the State's motion to reconsider, relying on Clark and

Wagner); People v. Van Matre, 164 Ill. App. 3d 201, 202-03 (1988) (same, relying on Rimmer,

McBride, Stokes, and Robins); People v. Smith, 232 Ill. App. 3d 121, 127 (1992) (same, relying on

People v. Williams, 138 Ill. 2d 377 (1990)); People v. Burks, 355 Ill. App. 3d 750, 754 (2004)

(same, relying on Van Matre). The majority's position, and I concede it is not unreasonable, is that,

if the authority upon which the edifice has been founded is shaky, then the edifice itself is unsound

and subject to reexamination. As can be seen from the citation string above, seven of the cases (all

except Smith) rely directly on Robins, or on a case that relies directly on Robins. Smith, by contrast,

relies on our supreme court's decision in Williams. I will therefore focus on Robins and Smith.

Robins incorporated the notion:

2
I include, for completeness' sake, the six cases identified by defendant (of which the

majority considers four) and the two additional cases identified by the majority.

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"Public policy clearly favors correction of errors at the trial level. We have previously held

that a motion to reconsider is an appropriate method to be utilized in directing the attention

of the trial judge to [a] claim of error. (Childress v. State Farm Mutual Automobile

Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492.) The time for appeal

commenced with the denial of that motion [to reconsider]." Robins, 33 Ill. App. 3d at 636.

This concept apparently arose fully formed and developed from the civil law. Robins offers no

analysis or consideration of the propriety, if any, of engrafting principles derived from the civil law

onto the criminal law. On the other hand, the issue pertains to the regulation of the courts, and a

court's ability to correct its errors, which would not seem to vary significantly between the civil and

criminal arenas. The force of the holding in Robins, then, should be commensurate with the

soundness of its reasoning. Robins purports to base its holding on the "[p]ublic policy favor[ing]

correction of errors at the trial level." This notion of providing the opportunity for a quick and

expeditious method to correct errors short of appeal has been repeatedly confirmed and endorsed

by our supreme court (People v. Mink, 141 Ill. 2d 163, 171 (1990) ("A court in a criminal case has

inherent power to reconsider and correct its own rulings"); People v. Heil, 71 Ill. 2d 458, 461 (1978)

(relevant statutes and court rules "demonstrate the intent that in criminal as well as civil matters the

circuit court be given the opportunity to reconsider final appealable judgments and orders within 30

days of their entry")) and the appellate court (People v. Bryant, 369 Ill. App. 3d 54, 60-61 (2006)

("Public policy favors correcting errors at the trial level, and a timely motion to reconsider is an

appropriate method to direct the trial court's attention to a claim of error"); People v. Hess, 241 Ill.

App. 3d 276, 282 (1993) (agreeing with postsentencing motion requirement to preserve sentencing

error for appeal due to policy that "a trial court should first be given an opportunity to correct any

error that might have occurred so as to avoid needless appeals"); People v. Swiercz, 104 Ill. App.

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3d 733, 735 (1982) ("public policy favor[s] that errors be corrected at the trial level")). Indeed, the

supreme court rules themselves expressly allow a timely postjudgment motion to toll the time for

appeal. 210 Ill. 2d R. 606(b). Admittedly, Bryant and Swiercz derive the public policy rule from

Robins or cases expressly relying on Robins, but this does not diminish the fact that, more than 30

years after Robins was promulgated, courts still invoke the public policy set forth in Robins. In my

view, then, the logical force motivating the Robins rule is clear and compelling and definitely retains

force and relevance today. Whatever infirmity arises from Robins' importation of a civil rule into

a criminal context is more than offset by its viable expression of public policy as the motivating

factor behind the rule. Robins remains good law and the cases that rely on Robins are likewise

rendered persuasive by the force of the Robins holding.

I recognize that the majority does not directly assail Robins. Instead, it attacks Stokes, which

derived its tolling rule from Robins. It finds Robins to be factually distinguishable because Robins

involved a final order while Stokes involved the same sort of interlocutory order--a grant of a

defendant's motion to suppress evidence--that is at issue here. According to the majority, therefore,

Stokes' reliance on Robins is unpersuasive and suspect both for the importation of civil law and the

factual difference. I disagree. Just as Robins' expression of the public policy behind the tolling rule

retains vitality, so too does Stokes' explanation. It is the reasoning of the case, the basis in public

policy, that gives the tolling rule force, not solely its provenance. If there were no legitimate policy

rationale behind the rule, then it would have been superceded or otherwise displaced. The fact that

it has the legs to be cited as justification 30 years later suggests that it was an apt expression of

public policy then and now. Thus, regardless of whether Robins appropriately cited Childress for

the tolling proposition, it clearly expressed the public policy behind the tolling rule, and that public

policy provides the valid analytical support for Stokes.

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The majority also assails Stokes on the ground that, if it is applying civil principles to

criminal appeals, then the motion to reconsider, being a motion directed against an interlocutory

order, is ineffective to toll the running of the 30-day time period for filing a notice of appeal. The

majority cites to Craine v. Bill Kay's Downers Grove Nissan, 354 Ill. App. 3d 1023, 1026 (2005),

which, in turn, relies upon Trophytime, Inc. v. Graham, 73 Ill. App. 3d 335, 335-36 (1979), for the

proposition that a motion to reconsider is ineffective to toll the time for appeal from an interlocutory

order. Both Craine and Trophytime, however, were brought pursuant to Rule 307 (188 Ill. 2d R.

307), which allows for certain interlocutory appeals as a matter of right. The rationale behind the

rule is that the type of interlocutory orders to which Rule 307 pertains "ordinarily has a substantial

impact upon one of the parties." Trophytime, 73 Ill. App. 3d at 336. To allow the time for appeal

to be tolled would prolong the harsh burden or substantial impact of the interlocutory order on one

of the parties, thereby frustrating the purpose of Rule 307, to allow a prompt review of the

interlocutory order. Craine, 354 Ill. App. 3d at 1028. In other words, the public policy

consideration of mitigating the burden on the parties in the case of an injunctive order (or other type

of interlocutory order specified in Rule 307) trumps the public policy preference of allowing trial

courts to correct their errors in order to prevent needless appeals. I disagree with the majority's

interpretation of the import of Craine and Trophytime as it impacts the rule set forth in Stokes and

Robins. It is easily explained by looking to the public policy motivating each line of decisions. The

public policy motivating Craine does not apply to the defendant who successfully moves to suppress

evidence, because of society's strong interest in having the trial court correct its own errors, if any,

in granting the motion to suppress.

The majority worries that following the well-settled tolling rule is inimical to a defendant's

right to have the charges against him expeditiously resolved. Slip op. at 6, 14-15. This is a

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significant concern. The majority recognizes the troubling issue raised by the continued

incarceration of a defendant who, while the motion to reconsider is pending, cannot be released on

bail versus the defendant who is generally entitled to be released from custody while the State's

appeal is pending. Slip op. at 6. However, when a motion to suppress is granted, the result is that

evidence of a defendant's guilty conduct is suppressed because the defendant's constitutional rights

were violated in some manner. The societal interest in getting the suppression ruling right is

manifest. Moreover, allowing only the defendant to avail him- or herself of the trial court's inherent

error-correcting powers biases the system in favor of defendants. If only the defendant can file a

motion to reconsider, then only those erroneous decisions against defendants will be corrected; the

erroneous decisions against the State will escape review. This may be a desirable bias to the system;

it may not be. I believe, however, that it is not this court's call--I would leave it to the supreme court

or to the legislature to decide whether such a systemic bias should be created.

I would accept the statements of the tolling rule in Robins, Stokes, Clark, McBride, Rimmer,

Van Matre, and Burks at face value. In my view, they are underpinned by a proper and valid

expression of public policy to which the majority gives too little weight in its analysis.

In Smith, the court relied on Williams, 138 Ill. 2d 377, for the proposition that "[a] timely

motion for reconsideration of a ruling granting a suppression motion will toll the time to file a notice

of appeal." Smith, 232 Ill. App. 3d at 127. The majority notes that "Williams held that, where the

State does not appeal from an adverse suppression ruling or seek reconsideration of it during the

time for taking an appeal, it cannot later relitigate the issue in the trial court." Slip op. at 8. In

reaching its holding, however, Williams also reasoned that "statutory and judicial policy favors

giving a circuit court 'the opportunity to reconsider final appealable judgments and orders within 30

days of their entry' as long as no notice of appeal has yet been filed." Williams, 138 Ill. 2d at 394,

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quoting Heil, 71 Ill. 2d at 461. (It should be noted that Williams did not involve a successful motion

to suppress, a timely motion in the trial court to reconsider, followed by a notice of appeal filed

within 30 days of the denial of the motion to reconsider; instead, Williams involved a successful

motion to suppress, a timely notice of appeal, abandonment of the appeal, and the State's motion

(held to be improper) to consider the attenuation of a confession from an unlawful arrest, more than

a year after the suppression motion had been granted. Williams, 138 Ill. 2d at 382-85. Thus,

Williams is procedurally distinct from the case at bar.) Smith, then, relied on Williams' statement

of "statutory and judicial policy" to support its tolling-rule holding. Smith, 232 Ill. App. 3d at 127.

Williams, in turn, relied on Heil for the proposition that "[t]he relevant statues, and the rules

promulgated by [the supreme court], demonstrate the intent that in criminal as well as civil matters

the circuit court be given the opportunity to reconsider final appealable judgments and orders within

30 days of their entry." Heil, 71 Ill. 2d at 461, citing, among others, 58 Ill. 2d R. 606(b). (Again,

like Williams, so too is Heil procedurally distinct, arising from a defendant's initially successful

motion to dismiss on speedy trial grounds, which, at the motion of the State, the trial court

reconsidered and reversed its original ruling.) Obviously, Heil and Williams expressed the public

policy in relation only to final and appealable judgments. The supreme court was not, however,

finished with its exposition of public policy.

Next, in Mink, the supreme court found that the public policy was better served by expanding

its rationale to include interlocutory judgments. In Mink, our supreme court stated that "[a] court

in a criminal case has inherent power to reconsider and correct its own rulings, even in the absence

of a statute or rule granting it such authority. [Citations.] A court's power to reconsider and correct

its decisions extends to interlocutory, as well as final, judgments." Mink, 141 Ill. 2d at 171. (Mink,

too, is procedurally distinct, arising from the trial court's reversal, after reconsideration, of its

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decision to grant the defendant a new trial, an interlocutory order.) In reaching its conclusion on the

inherent power of a court, Mink relied upon Heil, 71 Ill. 2d at 461.

Mink, Williams, and Heil contain clear and unambiguous expressions of public policy

favoring allowing the trial court to reconsider its rulings, and this public policy includes

reconsidering interlocutory judgments. The cases cited by the majority implement this policy in

reference to Rule 606(b). Based on the valid public policy motivating the tolling rule in all of the

cases considered by the majority, I would adhere to their consistent holdings that a timely motion

to reconsider a grant of a defendant's motion to suppress tolls the time for taking an appeal.

The majority takes issue with my elucidation of the public policy underpinning the tolling

rule, contending that it has no basis in the supreme court rules. See slip op. at 6. This is not exactly

true. If I may presume to restate the majority's rationale, it is not so much that the tolling rule

expressly stated in Robins, Stokes, Rimmer, Van Matre, Smith, and Burks cannot be traced to clear

supreme court statements of precisely that public policy in Heil, Williams, and Mink, but that the

appellate court cases did not bother to textually analyze Rule 606 in announcing the tolling rule.

I agree with the majority that this is a problem. I note, however, that five cases expressly linked the

tolling rule with Rule 606 (Robins, 33 Ill. App. 3d at 636; Stokes, 49 Ill. App. 3d at 298; Clark, 80

Ill. App. 3d at 48-49; Van Matre, 164 Ill. App. 3d at 203; Burks, 355 Ill. App. 3d at 754), one

referenced only Rule 604 and the supreme court statements of public policy (Smith, 232 Ill. App.

3d at 127), and two relied only on the other appellate cases (McBride, 114 Ill. App. 3d at 79-80;

Rimmer, 132 Ill. App. 3d at 111). Thus, even though we can challenge the legal reasoning employed

in Robins, Stokes, Clark, Van Matre, and Burks, we cannot challenge the fact that they, rightly or

wrongly, interpreted Rule 606 to contain the tolling rule that those cases set forth. I also note that

Heil, 71 Ill. 2d at 460-61, expressly considered Rule 606, among others, in concluding that the

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public policy of the state favored allowing a trial court to correct its errors via a motion to

reconsider, following which the right of appeal would remain undisturbed. (Williams and Mink did

not link their statements of public policy to the supreme court rules, but only to Heil. Williams, 138

Ill. 2d at 394; Mink, 141 Ill. 2d at 171.)

The majority further questions the public policy underpinnings of the tolling rule, asserting

that, despite Mink's statement that "[a] court in a criminal case has inherent power to reconsider and

correct its own rulings, even in the absence of a statute or rule granting it such authority," and this

power "extends to interlocutory, as well as final, judgments" (Mink, 141 Ill. 2d at 171), Mink

nevertheless "said nothing about public policy" (slip op. at 8-9). While Mink did not preface its

pronouncement about a court's inherent powers with the words, "this is the state's public policy," I

fail to see any other way to interpret Mink's statement about a court's inherent powers than as a

statement about public policy. If I am reading too much into Mink, then the majority is reading far

too little. The majority notes that Mink arose from a final order reinstating the defendant's

conviction after the State moved for reconsideration of the trial court's grant of a new trial. Slip op.

at 8-9; see Mink, 141 Ill. 2d at 169. This procedural posture nevertheless does not undermine or

diminish Mink's clear statement of public policy. Mink noted the actual context of its statement that

the court's error-correction power extended to interlocutory orders: "Even if the trial court here

correctly determined that the State's evidence was insufficient to establish venue, it did not enter a

final judgment of acquittal. Rather, it granted the defendant's motion for a new trial. This order was

interlocutory in nature." Mink, 141 Ill. 2d at 171. Mink clearly stated that a court's inherent power

to correct its own errors extended to interlocutory orders. In order to give effect to that power, the

tolling rule must apply to motions to reconsider; otherwise an appellant will have to choose between

taking a chance that the trial court will correct its error and losing the right to appeal. Heil

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specifically disapproved of that result: "We find nothing in these cases which would support the

contention that a party entitled to appeal from an order entered by the circuit court should be

deprived of the opportunity to seek correction of the alleged error by means of a motion timely filed

in the circuit court." Heil, 71 Ill. 2d at 461-62.3 In my view, these cases provide ample support for

the tolling rule.

Additionally, the majority demands symmetry between the civil and criminal justice systems.

Slip op. at 8 ("if there are any public policy implications of a trial court's inherent power to

reconsider its interlocutory rulings, the implications should be the same in a civil case where a trial

court has the same power"). This argument fails on its own terms. Under this reasoning, the State

should be allowed to appeal an acquittal, because an unsuccessful civil plaintiff has the right to

appeal an adverse result. More fundamentally, however, on the criminal side, five cases over a

period of more than 30 years have expressly determined that the tolling rule applies to an appeal by

the State from the interlocutory grant of a motion to suppress; on the civil side, cases have expressly

stated, over a period of nearly 30 years, that a motion to reconsider an interlocutory order will not

toll the time in which to bring an appeal. See Trophytime, 73 Ill. App. 3d at 335; Craine, 354 Ill.

App. 3d at 1026. The civil justice system is inherently different from the criminal justice system.

3
The majority further notes that I have cited cases in which the State's motion to reconsider

was raised and resolved and its notice of appeal was filed, all within the 30 days provided by Rule

606(b). Slip op. at 9 n.1. The point, however, is not whether this can be done, but must it be done.

With crowded court dockets, if it must be done this way then the motion to reconsider is likely

problematic, and judicial efficiency will be impaired as a result of the State forgoing the trial court's

error-correcting ability.

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I am not troubled that, in those few situations when the State may bring an appeal, it may also avail

itself of the trial court's inherent error-correction power without jeopardizing its right to bring an

appeal.

My point, ultimately, is not that I am 100% correct in my reasoning and the majority is 100%

wrong (although the majority seems to think along those lines), but rather it is that, where we have

a well-established rule of law that has, rightly or wrongly, been engrafted onto the supreme court

rules, and where the supreme court itself has expressly passed upon the public policy reasoning

underlying the supreme court rule at issue, we should not be so quick to delete the rule and unsettle

the law in a heretofore well-settled and uncontroversial niche, and one as important as appellate

jurisdiction. After all, "appellate jurisdiction is akin to strolling through a minefield" (Physicians

Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 446 (2000)), and I see no useful purpose in

strewing yet more mines about. This consideration leads to my next point.

2. Implementation of the Tolling Rule

The principle of stare decisis further strongly supports following the holdings of Burks,

Smith, Van Matre, Rimmer, McBride, Clark, Stokes, and Robins, as well as the clear expressions

of public policy in Mink, Williams, and Heil. Our supreme court recently explained the principles

behind stare decisis:

"The doctrine of stare decisis ' "expresses the policy of the courts to stand by

precedents and not to disturb settled points." ' People v. Caballes, 221 Ill. 2d 282, 313

(2006), quoting Neff v. George, 364 Ill. 306, 308-09 (1936), overruled on other grounds by

Tuthill v. Rendelman, 387 Ill. 321 (1944). In other words, ' "a question once deliberately

examined and decided should be considered as settled and closed to further argument" '

(Wakulich v. Mraz, 203 Ill. 2d 223, 230 (2003), quoting Prall v. Burckhartt, 299 Ill. 19, 41

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(1921)), so that the law will not change erratically, but will develop in a principled,

intelligible fashion." People v. Colon, 225 Ill. 2d 125, 145-46 (2007).

Our supreme court admonished, however, that the doctrine of stare decisis should not be followed

blindly and mechanically.

"If it is clear a court has made a mistake, it will not decline to correct it, even if the mistake

has been reasserted and acquiesced in for many years. [Citation.] That said, this court will

not depart from precedent merely because it might have decided otherwise if the question

were a new one. [Citation.] As we recently reiterated, any departure from stare decisis must

be ' "specially justified." ' People v. Suarez, 224 Ill. 2d 37, 50 (2007), quoting People v.

Sharpe, 216 Ill. 2d 481, 520 (2005). Thus, prior decisions should not be overruled absent

'good cause' or 'compelling reasons.' Suarez, 224 Ill. 2d at 50, quoting Sharpe, 216 Ill. 2d

at 520. In general, a settled rule of law that does not contravene a statute or constitutional

principle should be followed unless doing so is likely to result in serious detriment

prejudicial to public interests. [Citations.] Good cause to depart from stare decisis also

exists when governing decisions are unworkable or badly reasoned." Colon, 225 Ill. 2d at

146.

In addition, this court has noted that "[t]he rule of stare decisis is founded upon sound principles in

the administration of justice." Appelhans v. McFall, 325 Ill. App. 3d 232, 238 (2001).

Of course, one man's meat is another man's poison, and the majority can easily assert that

Robins is flawed because it inexplicably imports into the criminal law a principle (and one that is

later repudiated in Craine) from civil law; Stokes is poorly reasoned; and Smith relies on a case that

does not stand for the principle relied upon. I have questioned this reasoning above and, obviously,

I do not view it as "good cause" or providing "compelling reasons" to depart from the tolling rule

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consistently set forth for the previous 30-plus years in Robins through Burks. After all, under the

doctrine of stare decisis, in most circumstances it is more important that the rule be settled than it

be settled correctly. Jones, 207 Ill. 2d at 134.

Instead, the majority's departure from the principles of Robins through Burks, while arguably

settling the rule correctly, nevertheless unsettles a system that has been functioning for the past 30-

plus years and confers no benefit upon the courts or the public other than, perhaps, an abstract and

academic sense that the "plain" language of Rule 606(b) is at long last being given its plain and

unambiguous meaning. (Of course, even the majority does not contend that Rule 606(b) is without

ambiguity, and I offer my interpretation of the rule in part B below.) Whether or not the majority's

rejection of the settled rule of law in Robins through Burks will "result in serious detriment

prejudicial to public interests" (Colon, 225 Ill. 2d at 146), I do believe the upset and upheaval to the

established procedure is both detrimental and unnecessary. See Jennings, 316 Ill. App. 3d at 446

("appellate jurisdiction is akin to strolling through a minefield"). In short, the adoption of the

majority rule actually causes those harms that are supposed to motivate a court to abandon precedent

and I can discern precious little in the way of improvements to the procedure that will be gained

from adopting the majority's new rule.

The majority shrugs off the argument in favor of observing stare decisis with a citation to

People v. DeVoss, 150 Ill. App. 3d 38, 40 (1986) ("we are not compelled by a rule of horizontal,

district-to-district stare decisis to adopt the decision of the Fourth District"). DeVoss does not state

the doctrine of stare decisis and, in fact, confuses it with a hierarchical principle of the Illinois

courts. Our supreme court has long maintained that there is but one appellate court in Illinois.

People v. Granados, 172 Ill. 2d 358, 371 (1996). Justice Harrison explained that, even though the

appellate court is divided into five judicial districts, the districts have nothing to do with the

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appellate court's authority, but instead the five districts define the political units from which the

judges of the supreme and appellate courts are selected. Aleckson v. Village of Round Lake Park,

176 Ill. 2d 82, 94 (1997) (Harrison, J., specially concurring). A circuit court, on the other hand,

being inferior to both the appellate court and the supreme court, is bound by the decisions of the

appellate court of the district in which the circuit court sits. Aleckson, 176 Ill. 2d at 92. The

appellate courts, being coequal, are not similarly bound by the decisions of appellate courts of other

districts. Aleckson, 176 Ill. 2d at 92. Thus, this principle is understood in terms of the hierarchy

of the Illinois courts, with the inferior courts being bound by decisions of superior courts. Stare

decisis, by contrast, is a principle that applies to a singular court or to coequal courts, under which

the court will follow previous rulings. There is nothing in the definition of stare decisis that binds

a court; a court is always free to ignore precedent for "good cause" or "compelling reasons," such

as an unworkable decision. Colon, 225 Ill. 2d at 146.

This distinction between the hierarchical principle and stare decisis is important, because the

doctrine of stare decisis lends a "should" to the inquiry of "can" used by the majority in this case.

The majority demonstrates that we can change the settled interpretation of Rule 606; stare decisis

causes me to ask whether we should change the settled rule. The short shrift to which the majority

gives the doctrine of stare decisis is unfortunate. While I might agree with the majority that its

reading of Rule 606 is more faithful to the words employed in the text of the rule than is the current

tolling rule engrafted onto Rule 606 by 30 years of case law, I would adopt that reading only in the

absence of those 30 years of case law. That the tolling rule has been employed continuously for 30

years is a testament to its workability and adequate functioning. Thus, my point here is that, because

the tolling rule is not broken, and because it has been part of Illinois case law (despite the obvious

analytical shortcomings identified by the majority) for more than 30 years, it should be followed.

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See Jones, 207 Ill. 2d at 132 (under the doctrine of stare decisis, even obviously erroneous precedent

should be followed if the point has been settled on a long-standing basis).

The majority responds that it is not stare decisis, but comity, that governs our adherence to

other districts' decisions. This view suggests that we owe no more deference to the decisions of the

First District of the Appellate Court of Illinois than we do to the decisions of the First District of the

Court of Appeal of California. See Black's Law Dictionary 267 (6th ed. 1990) (judicial comity is

principle by which "courts of one state or jurisdiction will give effect to the laws and judicial

decisions of another"). Given our identity as one appellate court and the extent to which we

routinely rely on other districts' decisions, I disagree with this view. In any event, it makes little

practical difference here. If comity is what governs, then this surely is a case in which we should

exercise it.

I suspect that the majority would rejoin that the tolling rule is not well settled in the Second

District, because it has never been expressly considered. Or the majority might say that the lack of

analysis at the inception of the tolling rule is a fatal flaw to its soundness, and that this is sufficient

justification to depart from following those cases that have already decided the issue. I do not

necessarily disagree. My disagreement, again, is that it is this appellate court that is making the

decision. I believe that a decision to depart from a rule of law settled for more than 30 years is one

that is properly within the province of our supreme court and not this court.

My interest piqued by the majority's reading of Rule 606(b), I have extensively researched

to see if the cases are aberrant or whether there is a consistent pattern of implementing the tolling

rule over the years since Robins and Stokes. My research has uncovered no less than 14 reported

cases in which the recitation of facts makes clear that the appellate court accepted implicitly the

application of the tolling rule. Interestingly, the majority of the 14 cases originate from this, the

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Second District. In our defense, however, I note that in none of those cases was a jurisdictional

issue regarding the timeliness of the notice of appeal raised or considered. See People v. Flores, 371

Ill. App. 3d 212 (2d Dist. 2007) (motion to quash granted on April 20; motion to reconsider timely

filed within 30 days and denied on July 28; notice of appeal filed on August 5 (dates not given in

reported opinion, but taken from record on appeal)); People v. Babolcsay, 368 Ill. App. 3d 712 (2d

Dist. 2006) (motion to suppress granted April 27; motion to reconsider denied June 14; notice of

appeal filed within 30 days thereafter); People v. Brown, 343 Ill. App. 3d 617 (2d Dist. 2003)

(motion to suppress granted May 1; motion to reconsider filed June 14 and denied July 19; notice

of appeal filed within 30 days thereafter); People v. Grove, 341 Ill. App. 3d 466 (5th Dist. 2003)

(motion to suppress granted September 19; timely motion to reconsider denied November 14; notice

of appeal field December 11); People v. Moore, 328 Ill. App. 3d 1047 (5th Dist. 2002) (motion to

suppress granted March 13; timely motion to reconsider denied May 5; notice of appeal filed within

30 days thereafter); People v. Martinez, 307 Ill. App. 3d 368 (5th Dist. 1999) (motion to suppress

granted November 14; timely motion to reconsider denied January 12; notice of appeal filed January

13); People v. Greene, 289 Ill. App. 3d 796 (2d Dist. 1997) (motion to suppress granted November

13; timely motion to reconsider denied January 30; notice of appeal filed within 30 days thereafter);

People v. Blakely, 278 Ill. App. 3d 704 (2d Dist. 1996) (motion to suppress granted August 9; timely

motion to reconsider denied October 30; notice of appeal filed within 30 days thereafter); People

v. Pickens, 275 Ill. App. 3d 108 (5th Dist. 1995) (motion to suppress granted October 27; timely

motion to reconsider denied February 4; notice of appeal filed within 30 days thereafter); People v.

Hieber, 258 Ill. App. 3d 144 (2d Dist. 1994) (motion to suppress granted June 24; timely motion to

reconsider denied August 10; notice of appeal filed within 30 days thereafter); People v. Smith, 248

Ill. App. 3d 351 (2d Dist. 1993) (motion to suppress granted September 13; timely motion to

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reconsider denied December 10; notice of appeal filed within 30 days thereafter); People v. Jose,

241 Ill. App. 3d 104 (5th Dist. 1993) (motion to suppress granted September 6; motion to reconsider

filed October 2 and denied October 29; notice of appeal filed within 30 days thereafter); People v.

Kelk, 231 Ill. App. 3d 797 (4th Dist. 1992) (motion to suppress granted March 23; timely motion

to reconsider denied May 16; notice of appeal filed within 30 days thereafter); People v. Duncan,

104 Ill. App. 3d 701 (1st Dist. 1982) (motion to suppress granted February 13; timely motion to

reconsider denied March 12; notice of appeal filed after April 9). This list of cases, in which, under

the majority's rule, the appellate court lacked jurisdiction, does not include Burks, Rimmer, or

Stokes, all of which held that a timely motion to reconsider will toll the time for appeal. In addition

to the 14 reported cases in which the recitation of facts proves a lack of jurisdiction under the

majority's rule, I uncovered another 59 reported cases in which the trial court granted a motion to

suppress, the State's motion to reconsider was denied, and the notice of appeal was deemed to be

timely. These cases did not raise or consider jurisdiction, but the recitation of facts did not specify

the time frame. They extend from 1978 through 2007. Of course, I do not and cannot say that they

run afoul of the majority's rule, but I think that a significant portion of them probably do.

In the interest of fairness, I note that my research uncovered four cases in which the

suppression, reconsideration, and notice of appeal were all accomplished within 30 days, thus

presenting no issue under the majority's rule: People v. Gott, 346 Ill. App. 3d 236 (5th Dist. 2003);

People v. Evans, 314 Ill. App. 3d 985 (2d Dist. 2000); People v. DeBlieck, 181 Ill. App. 3d 600 (2d

Dist.1989); People v. Zeigler, 106 Ill. App. 3d 783 (2d Dist. 1982).

My point in the extensive citations is to illustrate that the Stokes rule, a timely motion to

reconsider will toll the time in which to appeal, is both long standing and almost instinctively

internalized within the law and its practitioners. To be fair, however, none of the cases cited above

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(slip op. at 34-35), and particularly the Second District cases, explicitly raised the issue we are

addressing in this case. Yet it is instructive that, despite each court's obligation to verify its

jurisdiction in every case (People v. Smith, No. 104468, slip op. at 7 (February 22, 2008)), none

thought jurisdiction was lacking and, instead, they followed implicitly the express holding of the

Robins-Stokes line of cases. I can see no useful purpose to be accomplished by disturbing the

tolling rule. Moreover, the adoption of the majority's new rule would tremendously impact the law

of suppression and arrest, ensuring that erroneous decisions favoring defendants would go

uncorrected while erroneous decisions favoring the State would continue to be corrected. This

imbalance can bode only ill for the law in general. In my view, the considerations of stare decisis

weigh in favor of continuing to adhere to the holdings of Robins and Stokes through Burks and

strongly against repudiating the tolling rule.

I make one last point under the topic of stare decisis: the majority, in responding to the

acquiescence argument that I develop in section B below, noted that our supreme court dispensed

with a 16-year-old rule despite the fact that the acquiescence principle would have justified its

continued adherence. Slip op. at 13-14. This passage in the majority deftly illustrates my overriding

point that it is our supreme court who should decide whether to follow or reject the tolling rule, not

the inferior courts.

B. Construction

My final area of disagreement with the majority is with its construction of Rule 606(b). The

majority correctly notes that it is fundamental that the supreme court rules are interpreted in the

same manner as statutes. 134 Ill. 2d R. 2; People v. King, 349 Ill. App. 3d 877, 878 (2004). The

majority acknowledges this, as well as the primary goal of construing a statute or supreme court rule,

which is to ascertain and give effect to the drafters' intent in enacting the statute or supreme court

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rule. King, 349 Ill. App. 3d at 878. The best indication of the drafters' intent is the language of the

rule, given its plain and ordinary meaning. King, 349 Ill. App. 3d at 878. Where the language of

a rule is clear and unambiguous, it must be given its plain and ordinary meaning without resort to

other tools and aids of construction. In re Marriage of Bates, 212 Ill. 2d 489, 512 (2004). In other

words, the maxims of construction are aids to be employed only where the language of the rule is

found to be ambiguous in some way. Land v. Board of Education of the City of Chicago, 202 Ill.

2d 414, 426 (2002). Here, the majority fails to recognize this follow-on and does not expressly

make the determination that the language of Rule 606(b) is ambiguous. While seemingly

maintaining that the rule is unambiguous and that its construction of the rule is inevitable, the

majority employs the principle of construction that a more specific provision trumps a more general

provision to resolve the ambiguity of conflicting results that the majority admits is a possibility if

the "plain" language is given its effect. Slip op. at 9-11. Thus, the majority finds that Rule 606(b)

is ambiguous and employs tools of construction to resolve the ambiguity.

Accepting for purposes of argument that the rule is ambiguous, I propose a different principle

of construction, namely the principle of acquiescence. I realize that it is a weak reed on which to

base a determination of the drafters' intent, but, here, it is appropriate. Rule 606 has been amended

nine times since 1970. As of July 1, 1971, Rule 606(b) was amended to state:

"The notice of appeal shall be filed within 30 days from the entry of the order or

judgment from which the appeal is taken ***. *** [N]o appeal may be taken from a trial

court to a reviewing court after the expiration of 30 days from the entry of the order or

judgment from which the appeal is taken." 50 Ill. 2d R. 606(b).

Interestingly, the first sentence refers to an "order" or a "judgment." The 30-day limitation likewise

refers to the "order" or the "judgment."

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Rule 606 was next amended effective July 1, 1975, but no changes were made to Rule

606(b). 58 Ill. 2d R. 606(b). Robins was issued in 1975 and interpreted Rule 606(b) to allow a

motion to reconsider an interlocutory judgment to toll the time to appeal. Effective February 17,

1977, Rule 606 was again amended, with Rule 606(b) taking more substantially the form in which

it exists today:

"Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk

of the circuit court within 30 days after the entry of the final judgment appealed from or if

a motion directed against the judgment is timely filed, within 30 days after the entry of the

order disposing of the motion. *** [N]o appeal may be taken from a trial court to a

reviewing court after the expiration of 30 days from the entry of the order or judgment from

which the appeal is taken." 65 Ill. 2d R. 606(b).

The evolution of Rule 606(b) demonstrates that the "order or judgment" language has been removed

in the first sentence, replaced by the same language used today, "final judgment." The final sentence

continues to use the "order or judgment" language, as it does today. This suggests that it is perhaps

an inadvertent holdover from the older versions of the rule that has not been harmonized with the

terminology of the rule as it developed. In May 1977, Stokes was issued, relying on Robins, and

holding that a motion to reconsider an interlocutory judgment will toll the 30-day time in which to

bring an appeal. In 1978, in Heil, 71 Ill. 2d at 461, the supreme court endorsed the idea of allowing

a trial court to reconsider its interlocutory judgments. In so ruling, the supreme court expressly

considered Rule 606(b). Heil, 71 Ill. 2d at 461.

Rule 606 was next amended effective October 15, 1979. 73 Ill. 2d R. 606. The amendment

did not affect Rule 606(b) at all. Clark was issued in December 1979, holding that a motion to

reconsider tolls the time to appeal. Clark, 80 Ill. App. 3d at 48-49.

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In 1983, McBride was issued. Effective July 1, 1984, Rule 606 was again amended, but the

amendment did not affect Rule 606(b). 107 Ill. 2d R. 606(b). For the next 15 years, the rule

remained unchanged. During that time, Rimmer, Van Matre, Williams, Mink, and Smith were

issued. All these cases expressed agreement with the idea that a timely motion to reconsider will

toll the time to appeal.

Effective December 1, 1999, Rule 606(b) was amended to take its current form. 188 Ill. 2d

R. 606(b); see also 210 Ill. 2d 606(b). In February 2005, Burks was issued, holding that a timely

motion to reconsider tolls the time for appeal. Burks, 355 Ill. App. 3d at 754. Two subsequent

amendments to Rule 606 left Rule 606(b) unchanged. Official Reports Advance Sheet No. 2

(January 18, 2006), R. 606(b), eff. December 13, 2005; Official Reports Advance Sheet No. 17

(August 16, 2006), R. 606(b), eff. September 1, 2006.

Based on this recitation, it is clear that the tolling rule has been uniformly used (even

endorsed by the supreme court in Mink, Williams, and Heil). From time to time, the supreme court

has amended Rule 606(b), but never in such a way as to disapprove of the judicial interpretations

holding that a timely motion to reconsider will toll the time for appeal. Further, after each

amendment of Rule 606(b), additional cases reiterated the tolling rule. Based on this history, then,

I would apply the doctrine of acquiescence to Rule 606(b) and follow the tolling rule consistently

iterated in Robins through Burks. See, e.g., People v. Downs, 371 Ill. App. 3d 1187, 1191 (2007)

(where judicial interpretation of statute has not provoked an amendment, drafters are presumed to

acquiesce in the judicial exposition of the intent behind the statute or the rule). Obviously, the

supreme court has had ample opportunity (from amending its rules to deciding the State's appeals

on motions to suppress) to correct any misinterpretation of Rule 606(b). It has not yet done so.

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The majority is unimpressed with the principle of acquiescence. Nevertheless, by

juxtaposing the dates by which the supreme court rule had been modified with the cases expressing

the tolling rule, and the supreme court cases endorsing the policy and reasoning behind the tolling

rule, I have demonstrated that the issue could be settled under the acquiescence principle. That, of

course, does not mean the principle is not without problems in the context of applying it to the

supreme court rules. Neither I nor the majority have found any case applying this principle to the

supreme court rules. This suggests to me either that it should not be applied or that nobody else has

attempted it. The majority clearly points out the weakness of reliance upon this principle alone.

However, the principle of acquiescence along with the principle of stare decisis and the authority

identified above provide significant reasons to continue to adhere to the tolling rule.

In addition to the principles of acquiescence and stare decisis, other principles of

construction further militate in favor of continued observance of the tolling rule. This court has

stated that, in construing an ambiguous supreme court rule, "the court may look beyond the language

to consider the rule's purpose." People v. King, 349 Ill. App. 3d 877, 878 (2004). In so doing, the

court is to ascertain the drafters' intent "from a consideration of the entire scheme, its nature, its

object, and the consequences resulting from different construction[]." King, 349 Ill. App. 3d at 878-

79. The scheme, nature, and object of Rule 606(b) has been explored above. I now pause to

consider the consequences of the varying constructions proposed here.

Under the majority's construction, any State appeal from the grant of a defendant's motion

to quash arrest and suppress evidence must be perfected within 30 days, and all collateral activities,

like a motion to reconsider, must be completed before that time as well. Under the heretofore

unbrokenly applied tolling rule, a motion to reconsider will toll the time for appeal until it is ruled

upon; then the 30-day clock commences for the State to file a notice of appeal. In a vacuum, neither

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construction stands out as significantly better. The tolling rule advances the policy of allowing the

trial court to exercise its inherent error-correcting power and thus enhances judicial economy by

potentially weeding out from appeal those cases in which the trial court realizes an error. The

majority's construction works to promptly resolve criminal matters and to ease the inherent

uncertainty that the tolling rule would impose upon a defendant. We do not operate in a vacuum,

however. The weight of the 30-odd years in which the tolling rule has been applied has created

settled expectations among the practitioners before our courts. Changing the rule will inevitably

upset those expectations.

It has been held that a court has the inherent authority to determine whether a decision is to

be given only prospective application. Aleckson, 176 Ill. 2d at 91; Larrance v. Human Rights

Comm'n, 166 Ill. App. 3d 224, 230 (1988). The circumstances in which a court should exercise this

power are generally limited to instances where the "decision is a clear break with the past, such as

when a court explicitly overrules its own past precedent, disapproves a practice that it has previously

approved, or overturns a well-established body of *** court authority." Larrance, 166 Ill. App. 3d

at 230. In order to determine whether a decision should be applied only prospectively, the court

should consider three factors: (1) whether the decision has established a new principle of law

through overruling a clear precedent or deciding an issue of first impression whose resolution was

not clearly foreshadowed; (2) whether retrospective application of the decision will further or retard

its operation, in light of the merits and demerits of the rule and its history, purpose, and effect; and

(3) whether retrospective application of the decision will cause substantial inequitable results.

Aleckson, 176 Ill. 2d at 92-93.

Considering the factors leads to the conclusion that this is a case for only prospective

application. First, it declares a new rule. Whether the majority wishes to characterize its decision

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as resolving an issue of first impression, or as the changing of settled precedent, there is absolutely

no question that the majority's rule was never foreshadowed, either in Illinois case law as a whole

or in Second District jurisprudence particularly. I think the balance on the second factor is in

equipoise. As to the final factor, the rule will cause substantial inequity to those practitioners who

have relied upon the 30-year-old landscape in preparing (and becoming locked into) their litigation

strategies. This rule change was unheralded and impossible to predict. Thus, the third factor also

weighs heavily in favor of only prospective application. I therefore urge my colleagues to declare

that this case will have only prospective application. By prospective application, I mean to apply

the rule such that only those parties who can still conform their conduct to the rule will be affected;

those who have already acted in reliance on the tolling rule should, in fairness, remain unaffected

by the rule. I also note that there are many ways to craft a prospective application of the majority's

rule. See Brown v. Jaimovich, 365 Ill. App. 3d 329, 338 (2006) (citing examples such as decision

" 'will apply prospectively to causes of action arising out of occurrences' [citation]" on a date certain,

or decision will apply to all cases " 'in which trial commences on or after' [citation]" the issuance

of the mandate, and so on).

The majority argues that Aleckson should not be extended to a case involving jurisdiction.

In Aleckson, though, the jurisdictional bar of compliance with the Administrative Review Law was

held to be properly deferrable through only prospective application of the new rule. I fail to see any

substantial difference between the situation in Aleckson and here. Moreover, under the old rule, we

had jurisdiction to reach the issue and it is only the majority's newly fashioned reading that divests

jurisdiction. See, e.g., Burks, 354 Ill. App. 3d at 754 (expressly employing tolling rule); Babolcsay,

368 Ill. App. 3d 712 (impliedly following tolling rule); Brown, 343 Ill. App. 3d 617 (impliedly

following tolling rule). I do not find it troublesome to limit the chaos caused by the new rule by

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adhering to the old rule until a date certain. Last, the majority appears to insinuate that I object to

application of its new rule in this case. I do not. I recognize that this case must be governed by the

majority's new rule. In advocating only prospective application, however, I seek to limit the chaos

under this new rule by allowing it to be implemented only where the parties may conform their

conduct to the new rule, rather than penalizing parties for their reliance on the previously established

and utilized rule.

I observe, additionally, an unlooked-for consequence to the majority's construction. This

case, in the scheme of things, is fairly insignificant. It thankfully involves no injuries or deaths or

loss of tremendously valuable property. But what if it did? I note that the infamous Brown's

Chicken Massacre case involved a similar procedural posture to this one. There, the defendant

prevailed on a motion to suppress evidence, namely, his videotaped statement. The State appealed,

arguing that its prosecution of the defendant would be substantially impaired without the videotaped

evidence. On consideration of the merits, the appellate court reversed the decision of the trial court

and reinstated the videotaped statement into evidence. People v. Degorski, No. 1--07--2784 (March

31, 2008). The case does not indicate whether the State filed a motion to reconsider in the trial court

or, if so, how quickly it was resolved. However, for the sake of argument, assume that the State had

filed a motion to reconsider, which, due to the trial court's heavy docket, was not resolved until after

30 days had passed. Assume further that the trial court denied the motion to reconsider. (However,

as seen by the appellate court's judgment, this denial of the motion to reconsider was erroneous.)

Under the majority's construction, the defendant receives a windfall, because the State cannot get

the error corrected, precisely because it offered the trial court the opportunity to correct it. Further,

the development of the law is stymied--the appellate court does not issue the decision and the trial

court will become convinced that its (erroneous) holding is correct and it may issue similar decisions

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in the future. Last, and of enormous importance, the State may not be able to maintain its

prosecution, and the defendant would wrongfully go free without having to stand trial. I cannot see

how justice is served in this scenario.

Looking to the broader picture, the majority has not, apparently, considered the effect of its

holding. Under the majority's rule, we do not have jurisdiction to hear this appeal. What about the

dozens of cases identified above (and perhaps hundreds of unreported cases) that have been decided

in accordance with the tolling rule? If the appellate court had no jurisdiction, then its order is void.

This results in several classes for which the majority should make some sort of provision. In the first

class, the appellate court will have affirmed the trial court's order. This should result in no effect,

because the challenged evidence properly remained suppressed, and the outcome of a trial, if any,

was based on a case presented without the objectionable evidence. In the second class, the appellate

court reversed the trial court's order suppressing evidence. However, the order was void, because

the tolling rule did not extend the time for appeal. This leads to several subclasses: those defendants

who may still timely file petitions for rehearing, those who may still file postconviction petitions,

and those whose direct and collateral appeals are concluded. The question of a void judgment can

be raised at any time; further, the void judgment will have resulted in a conviction. I imagine that,

in each case, the defendant would be entitled to a new trial. However, from an institutional

perspective, we have already gotten it right--the evidence was supposed to come before the finder

of fact. The new trial, resulting from the void appellate judgment, will be fundamentally flawed,

because the suppressed evidence was erroneously suppressed and should be presented to the finder

of fact. This certainly does not seem to be a desirable result, even as it appears to be an inevitable

one.

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Even if the application of the rule is announced to be only prospective, I am hard-pressed

to see a way out of the morass that the new rule will cause--those defendants who have undergone

a trial as a result of a now-void appellate judgment would seem to have a pretty good argument for

a new trial, even if we tried to make the rule prospective only. Of course, if the rule operates

retrospectively, then we must squarely face this consequence.

These consequences resulting from the varying constructions of Rule 606(b), in my view,

favor keeping the tolling rule. As the consequences resulting from the competing constructions are

a valid consideration in judging the merits of the competing constructions (King, 349 Ill. App. 3d

at 878-79), I believe that they strongly weigh in favor of the tolling rule, along with the principles

of acquiescence and stare decisis. Thus, while I recognize that I am not prevailing on the merits of

the issue (or the prospectivity or retrospectivity of the application of the rule), I believe the majority

should have considered and accounted for these consequences in its decision.

The majority's interpretation of the language of Rule 606(b) is not foreclosed to challenge.

It is arguable, as the State suggests, that "final judgment" refers to final judgments, while the use of

the unmodified word "judgment" refers to both final and interlocutory judgments. In subsequent

sentences, "judgment" is modified to make the understanding explicit that it is a final judgment (e.g.,

"When a timely posttrial or postsentencing motion directed against the judgment has been filed"

(210 Ill. 2d R. 606(b) (sentence 2))). The first sentence, by contrast, states that "the notice of appeal

must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment

appealed from or if a motion directed against the judgment is timely filed, within 30 days after the

entry of the order disposing of the motion." 210 Ill. 2d R. 606(b) (sentence 1). The juxtaposition

of "final judgment" and the unmodified "judgment" can be reasonably construed to state the general

rule that a notice of appeal must be filed within 30 days of the final judgment, or within 30 days after

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the ruling on a timely motion to reconsider directed against any appealable judgment, final or

interlocutory. The "or if" clause, then, expressly allows and validates the holdings in Robins

through Burks. The "order or judgment" language in the penultimate sentence is reconciled by

noting that "order" can refer to the denial of the motion to reconsider, and thus it harmonizes with

the first sentence.

The majority reads the foregoing to require a motion to reconsider before a notice of appeal

can be filed. Not so. The penultimate sentence states that "no appeal may be taken from a trial court

to a reviewing court after the expiration of 30 days from the entry of the order or judgment from

which the appeal is taken." 210 Ill. 2d R. 606(b) (sentence 7). This language allows for the

possibility of filing a notice of appeal from an interlocutory order or judgment within the 30-day

time limit. The alternative interpretation of the first sentence allows for the tolling rule to apply.

If this construction is adopted, then there is no need to resort to the tools and aids of

construction--instead, the plain language of Rule 606(b) is no longer ambiguous and it is given its

ordinary (and heretofore universally accepted) effect.

In summary, for over three decades, the courts in Illinois have uniformly held that a State's

motion to reconsider the trial court's grant of a defendant's motion to suppress will toll the time for

appeal. This uniformity extends so far as to accepting without challenge the tolling rule in a

significant number of cases, many of which are from the Second District. I have further undertaken

an examination of the cases and found them to be based on the principle that the trial court should

have the opportunity to correct its errors, thereby eliminating needless appeals. This principle is

repeatedly expressed throughout all facets of the law and I believe it justifies our continued

adherence. In addition, the principle of stare decisis suggests that the majority's rule will actually

cause the problems that a departure from precedent is supposed to remedy. Moreover, stare decisis

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suggests that it is better to keep a less-than-analytically-perfect rule if the rule is long standing and

working; the long use of the tolling rule demonstrates both that it works and that it is quite long

standing. The principle of stare decisis, then, strongly supports our continued adherence to the

tolling rule. Also, Rule 606(b) may be interpreted in a manner that renders it unambiguous, contrary

to the majority's implicit holding. While the majority presents plenty of insightful analysis regarding

the proper interpretation of Rule 606(b), as if it were a matter of first impression, I have presented

sufficient reasoning to defer usurping the decision from its proper maker, our supreme court. For

these reasons, I respectfully dissent.

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