{ "id": 3598477, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIBORIO DELGADO, Defendant-Appellant", "name_abbreviation": "People v. Delgado", "decision_date": "1984-07-17", "docket_number": "No. 82\u20142246", "first_page": "239", "last_page": "244", "citations": [ { "type": "official", "cite": "126 Ill. App. 3d 239" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "460 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560095 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0787-01" ] }, { "cite": "459 N.E.2d 1175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 776", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560785 ], "weight": 2, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0776-01" ] }, { "cite": "438 N.E.2d 1269", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 164", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3011040 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0164-01" ] }, { "cite": "441 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5453822 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0880-01" ] }, { "cite": "381 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444241 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0358-01" ] }, { "cite": "364 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5634946 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0787-01" ] }, { "cite": "363 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3371684 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/1023-01" ] }, { "cite": "389 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5576959 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0915-01" ] } ], "analysis": { "cardinality": 521, "char_count": 11209, "ocr_confidence": 0.763, "pagerank": { "raw": 9.693728415608844e-08, "percentile": 0.5295947756027475 }, "sha256": "c3100d2f69f6df124983460596482c61d34d807eb49ef720b67fb594052b6a99", "simhash": "1:ae12587c5b0d6d90", "word_count": 1905 }, "last_updated": "2023-07-14T22:48:42.345915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIBORIO DELGADO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nFollowing a bench trial in December 1980 arising from a shooting outside a Chicago tavern, defendant Liborio Delgado was found guilty of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 \u2014 1, 8 \u2014 4), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 \u2014 2), aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 4) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A \u2014 2). Defendant was present at his bench trial but failed to appear on December 30, 1980, the date set by the trial court for his sentencing hearing.\nAt the sentencing hearing, defense counsel and the prosecutor indicated that defendant had possibly returned to his native Mexico. The court then denied defendant\u2019s written post-trial motion and sentenced defendant to 10 years\u2019 imprisonment. At defense counsel\u2019s request, the court stayed the mittimus for 30 days to allow defendant to appear and move to vacate the sentence. On January 30, 1981, only the prosecutor appeared, and the court ordered the mittimus to issue.\nApparently in June 1982 defendant reappeared and was arrested. On July 14, 1982, a second attorney appeared on defendant\u2019s behalf and filed a \u201cmotion for new trial.\u201d It alleged that notwithstanding defendant\u2019s trial testimony that he was not present at the shooting, defendant had in fact shot the victim in self-defense after the victim had beaten defendant. The motion further stated that because defendant spoke Spanish only, he was unable to cooperate with his English-speaking trial counsel. It was further alleged that defendant was an illegal alien who was unaware of the consequences of his actions and was unable to contribute to his own defense; the victim had known of defendant\u2019s illegal status and had \u201cpreyed\u201d upon defendant, knowing defendant would be reluctant to report the victim\u2019s actions to authorities. The motion further alleged that defendant was unaware that he could be sentenced in absentia, and that he had returned to Mexico \u201con an emergency basis and that after leaving the country was unable to return sooner in that he was indigent.\u201d Based on this \u201cnewly discovered evidence,\u201d the motion requested a new trial. Defendant\u2019s attorney also requested the trial court to stay the mittimus pending determination of this motion. The court stayed the mittimus and continued the case for 30 days.\nOn August 13, 1982, defendant\u2019s attorney filed a \u201cMotion to vacate judgment and correct errors of fact\u201d which was substantially the same as his July 14 motion. At the hearing on that date, the trial judge stated that he did not \u201cbelieve\u201d that \u201cas a matter of law\u201d he had jurisdiction to entertain the defendant\u2019s motions because they were filed more than 30 days after the imposition of defendant\u2019s sentence. The court thereupon granted defense counsel 30 days to research the issue, and continued the case to September 13, 1982.\nOn September 10, 1982, another new counsel appeared and was granted leave to file his appearance on defendant\u2019s behalf instanter for the \u201csole purpose\u201d of filing a notice of appeal. On the same date counsel filed a notice of appeal from the sentence imposed on defendant on December 30,1980, some 22 months earlier.\nAfter the filing of the briefs herein, the parties on the court\u2019s own motion were instructed to file memoranda on the issue of the timeliness of the filing of defendant\u2019s notice of appeal. Therein defendant argues that both the July and August 1982 motions were timely and proper under section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401 (formerly par. 72)) and section 115\u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 \u2014 4.1). The latter statute permits a trial and/or sentencing hearing to be held in a defendant\u2019s absence when such defendant wilfully fails to appear. The statute allows the defendant upon his return to move the court for a new trial or sentencing hearing if he can establish that his absence \u201cwas both without his fault and due to circumstances beyond his control.\u201d Defendant contends that his appeal time commenced when the trial court \u201cdenied\u201d these motions.\nThe State responds that defendant\u2019s July and August 1982 motions were not specifically filed pursuant to either of these statutes. Moreover, and in any event, the State asserts that the appeal must be dismissed as untimely because it was not filed within 30 days of the date of sentencing, nor within the discretionary six-month period after that date, citing In re K.M. (1979), 70 Ill. App. 3d 915, 389 N.E.2d 188, and 87 Ill. 2d R. 606(c).\nWe are compelled to agree with defendant and conclude that the motions are in the nature of motions under both section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014 1401) and section 115 \u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 \u2014 4.1). They are in the nature of section 2 \u2014 1401 motions in that they are based upon allegations of \u201cnewly discovered evidence\u201d which was \u201cof such character if it had been known to the Court the outcome of the litigation would have been different.\u201d They allege that defendant was \u201cunaware of alternative defenses available to him\u201d and that \u201cthe evidence to be presented became discovered after the trial and could not have been discovered before trial by the exercise of due diligence.\u201d Defendant also contends that \u201cthe time limit for filing this motion should be tolled as during defendant\u2019s absence *** he was under a disability ***.\u201d Such assertions are normally attendant to a section 2 \u2014 1401 motion filed in a criminal case. See, e.g., People v. Hammers (1977), 48 Ill. App. 3d 1023, 363 N.E.2d 914.\nThus we conclude that defendant\u2019s motions were in fact filed pursuant to section 2 \u2014 1401. Because the motions were filed within two years of the judgment being attacked, they were timely. People v. Logan (1977), 49 Ill. App. 3d 787, 364 N.E.2d 713, aff'd (1978), 72 Ill. 2d 358, 381 N.E.2d 264.\nWe also consider the motions to have been filed pursuant to section 115 \u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 \u2014 4.1). As noted, this statute provides in part:\n\u201c(e) When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. ***\u201d\nThe motions in the instant case, and defendant\u2019s affidavit in support thereof, stated that defendant was unaware that he could be sentenced in absentia; that his absence was due to an \u201cemergency,\u201d and that he was unable to return to this country because of his indigency. His attorney advised the trial court that Delgado, during his absence, had been for a time hospitalized. We also note the record does not indicate that the court advised defendant that should he fail to appear for trial, the trial could continue in his absence. See People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.\nIn our opinion, the two motions filed by defendant in July and August of 1982 were in fact timely filed motions under both section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401) and section 115 \u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 \u2014 4.1). The confusion here can be traced to the failure of defense counsel to denote the statutory basis for his motions. While we do not believe it would be appropriate here to penalize defendant for his counsel\u2019s inadvertence, we do not condone such ineptness. Under the totality of the circumstances in this case, we believe fundamental fairness requires that this defendant be given his day in court.\nBecause the motions were rightly before the trial court, we hold that the court erred when it expressed the \u201cbelief\u201d that it did not have jurisdiction to entertain them. We therefore must remand this case for proceedings on defendant\u2019s motions consistent with this opinion.\nWe now consider the status of defendant\u2019s appeal before us. As previously noted, the notice of appeal filed below purports to appeal some 22 months after entry of the order appealed from. Clearly, such notice of appeal was not timely filed. (In re K.M. (1979), 70 Ill. App. 3d 915, 389 N.E.2d 188; 87 Ill. 2d R. 606(c).) Because this notice was not timely, this court is without jurisdiction to consider this appeal. (In re McCall (1982), 108 Ill. App. 3d 164, 438 N.E.2d 1269.) While we must, therefore, dismiss this appeal, we observe that in People v. Brown (1984), 121 Ill. App. 3d 776, 459 N.E.2d 1175, the court held, in a similar situation, that there existed no final and appealable order until the trial court had ruled on the defendant\u2019s 115 \u2014 4.1 motion:\n\u201cThe statute contemplates, as the State concedes, that a conviction and sentence for one tried in absentia is not final and appealable until the defendant has returned and a ruling is made on any claim that the absence was not wilful. In addition to the above quoted provision of subsection (e), subsection (g) states:\n\u2018A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.\u2019 (Ill. Rev. Stat. 1981, ch. 38, par. 115\u2014 4.1(g).)'\nWe agree that the first notice of appeal was premature in that the judgment of conviction and sentence of the defendant in absentia did not amount to a final and appealable order. This appears clear from the quoted subsections of the statute, and it is also consistent with the provisions of Supreme Court Rule 605 (87 Ill. 2d R. 605), which contemplates that the defendant will be personally advised of his right to appeal, thus presupposing his presence.\u201d (121 Ill. App. 3d 776, 778.)\nWhile we do not here reach this issue, we note that under the rationale of Brown, defendant could, following the trial court\u2019s determination of defendant\u2019s motion under section 115 \u2014 4.1, have an opportunity for review of his trial. But see People v. Stark (1984), 121 Ill. App. 3d 787, 460 N.E.2d 47.\nIn sum, we hold that Delgado has filed timely post-trial motions under section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401) and section 115 \u2014 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 \u2014 4.1), and we remand for further proceedings on those motions. We dismiss the appeal filed herein as untimely.\nAppeal dismissed, cause remanded.\nHARTMAN, P.J., and STAMOS, J., concur.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Michael A. Unger, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Timothy Frenzer, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIBORIO DELGADO, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 82\u20142246\nOpinion filed July 17, 1984.\nMichael A. Unger, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Timothy Frenzer, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0239-01", "first_page_order": 261, "last_page_order": 266 }