What is a Notice of Appeal?
The notice of appeal is the formal method of transferring jurisdiction of the case from the trial court to the appellate court. Both federal appeals courts and Illinois appellate courts require a notice of appeal to be timely filed before an appeal can be taken.
A notice of appeal needs to be filed in both civil cases and criminal cases.
How Long do you have to Appeal a Case in Illinois?
Generally, a notice of appeal needs to be filed within 30-days of the final judgment being appealed. This 30-day rule applies to both civil appeals and criminal appeals. Failure to file a notice of appeal within the allotted time can have the effect of losing your right to appeal.
What is the Effect of a Timely-Filed Post-Trial Motion?
A timely-filed post-trial motion will stop the 30-day clock from running. A post-trial motion can be a motion for a new trial, a motion to reconsider sentence, or a motion for JNOV.
When does a Post-Trial Motion Need to be Filed to be Timely?
Any post-trial motion to be considered timely needs to be filed within 30-days of the trial or hearing being appealed. Like the situation for filing a notice of appeal, the 30-day rule is very rigid and failure to comply can have devastating effects on your ability to file an appeal.
What are the Consequences for an Untimely Post-trial Motion?
An untimely post-trial motion, which is any motion following a trial that is filed beyond 30-days is untimely.
An untimely post-trial motion does not deprive the trial court from issuing a substantive ruling on the late post-trial motion. However, an untimely motion does not stop the 30-day time period to file a notice of appeal.
In everyday situations this will likely result in filing a late notice of appeal, which could deprive the appellate court of jurisdiction resulting in losing the right to an appeal.
What Can You Do If 30-days Have Expired but the Notice of Appeal Was Not Filed Within 30-days?
Failure to file a notice of appeal on time can result in you losing your right to appeal. The Illinois Supreme Court Rules allow a late notice of appeal in certain situations. How the rules work depends on how long ago was the notice of appeal supposed to be filed.
Between Day 31 and Day 60
If you are within 30-days of the expiration date to file a notice of appeal, the Rules allow a late notice of appeal by filing a motion stating the reasons why reasonable excuses exists to file a late notice of appeal.
Between Day 61 and Day 180
A late notice of appeal can be possibly filed within 6-months of the expiration date to file a notice of appeal. In theses situations, a motion needs to be filed along with an affidavit from the party seeking to file an appeal. The motion and affidavit must establish why the appeal has merit and why the party filing the late appeal was not culpably negligent in the late filing.
Recently, we represented a client that required filing a motion and affidavit to file a late notice of appeal. My client was told by his trial counsel that he needed to file a notice of appeal within 30-days of the motion to reconsider being denied. Unfortunately, my client’s trial counsel filed the motion to reconsider beyond 30-days of my client’s trial rendering it virtually useless for appeals purposes. Based upon this wrong advice, my client waited until the motion to reconsider was denied in the trial court before retaining an appeals lawyer.
After he hired me, I immediately discovered the mistake and advised my client on the next steps. We were able to prepare the motion and affidavit and file it within the 6-months’ time period.
How are the 30-days for appeal counted?
While it may seem elementary on how to count 30-days, confusion abounds on this subject. Here are the general rules:
- The first-day is counted but not the last day.
- Day 1 is either the day the document was mailed or filed not when received.
- Weekends and holidays are included in the count.
- If Day 30 falls on a weekend or holiday, the following business day if deemed to be Day 30.