The Appeals Process in Illinois: How a Criminal Appeal Works

This article is general information about Illinois criminal appeals, not legal advice. Every case turns on its own facts and its own dates, so talk to a licensed lawyer about yours.

An Illinois criminal appeal asks a higher court to review what the trial judge did for legal error. It does not retry the case. In most appeals, the notice of appeal is due within 30 days after the final judgment, or after the order ruling on a timely post-trial motion, under Illinois Supreme Court Rule 606.

Key takeaways

• An appeal is a review of the trial court's decisions, not a second trial. There are no new witnesses, testimony or evidence.
• In Illinois criminal cases the notice of appeal generally must be filed within 30 days of the final judgment, or within 30 days of the order deciding a timely post-trial motion (Rule 606).
• To challenge a sentence, Illinois requires a written motion to reconsider the sentence in the trial court first. Issues left out of that motion are deemed waived (Rule 605).
• If you pleaded guilty, a separate motion is required before you can appeal (Rule 604(d)).
• A defendant who cannot afford a lawyer may have counsel appointed on appeal (Rule 607).
• Winning an appeal does not necessarily end the case. It can send the case back to the trial court.

What an appeal is, and what it is not

After a conviction, a defendant in Illinois can ask a higher court to look at the sentence and the conviction. An appeal can be taken whatever the offense was. The appellate court reviews the actions and decisions of the judge who made the ruling. In most cases it does not reweigh the facts or the credibility of witnesses, and it does not hear new evidence.

Legal errors that can support an appeal of a sentence include:

• The sentence breaks the law.
• The judge did not follow the sentencing rules that apply to the case (in federal court, that includes the US Sentencing Guidelines).
• The crime was not described in the law, so the sentence amounts to guesswork.

The Illinois courts also note that in many types of cases the standards of review call for deference to the trial court's decision, so the person appealing carries the burden of showing an error. That is described in the Illinois Appellate Court's guide to bringing an appeal.

Step 1: Know the deadline

The clock is short. Under Rule 605, after a conviction at trial the judge must tell the defendant that the right to appeal the conviction is preserved only if a notice of appeal is filed in the trial court within 30 days of the date sentence is imposed.

Rule 606 sets the same 30-day period for the notice of appeal and adds that a timely post-judgment motion changes the starting point. If you file a notice of appeal before the court rules on a timely post-trial or post-sentencing motion, that notice has no effect, and a new one must be filed within 30 days after the ruling.

Step 2: Ask the trial court to reconsider the sentence

If you want to challenge the sentence or anything about the sentencing hearing, Rule 605 says you must first file a written motion in the trial court within 30 days of sentencing. The motion must set out every issue or claim of error. Anything not raised in the motion is deemed waived. After the judge rules on the motion, you then have 30 days from that order to file the notice of appeal.

If you pleaded guilty

A guilty plea changes the first step. Under Rule 604(d), an appeal from a guilty plea cannot be taken unless, within 30 days of sentencing, the defendant files:

• a motion to reconsider the sentence, if only the sentence is being challenged, or
• a motion to withdraw the plea and vacate the judgment, if the plea itself is being challenged.

For a negotiated plea, a challenge to the sentence as excessive requires the motion to withdraw the plea. Rule 605(b) also says that if such a motion is granted, the plea, sentence and judgment are vacated and a trial date is set, and charges dismissed under the plea agreement are reinstated at the State's request. That is a serious trade-off to weigh with a lawyer before you file.

Step 3: File the notice of appeal

The notice of appeal is filed with the trial court clerk. It can be signed by the appellant or the attorney, and it must follow the court's official form. Under Rule 606, the notice is the only step that is jurisdictional. A defendant with no attorney who says in open court or in writing that they want to appeal can ask the clerk to prepare and file it.

Within 14 days after filing, the appellant must file a docketing statement with the appellate court.

If the 30 days pass, Rule 606(c) allows a motion for leave to file late, but only in limited situations: a showing of reasonable excuse, filed within 30 days after the deadline, or an affidavit showing merit and no culpable negligence, filed within six months. Do not plan around that exception.

Step 4: The record and the briefs

The appellate court decides the appeal on the record from the trial court, which includes the report of proceedings prepared by the court reporter. The parties then file written briefs, and the court's guide to bringing an appeal points to Supreme Court Rules 341 and 342(a) for how to prepare them. A brief that does not cite the record can be stricken.

After the appellate court rules, the same guide notes the right to file a petition for rehearing (Rule 367) and a petition for leave to appeal to the Illinois Supreme Court (Rule 315).

Paying for a lawyer on appeal

Under Rule 607, when a notice of appeal is filed in a felony or Class A misdemeanor case, and in certain other cases, the circuit court decides whether the defendant has counsel on appeal. If not, and the court finds the defendant indigent and wanting a lawyer, it appoints one. An indigent defendant also receives a copy of the report of proceedings without charge.

How a law firm can help

At The Law Offices of Haytham Faraj, we have more than 25 years of legal experience to guide you through the Illinois appeals process, from filing your notice of appeal to preparing your appellate brief. Haytham Faraj is licensed in Illinois, and his attorney profile describes his criminal defense work in federal, state and military courts.

A winning appeal does not necessarily dismiss a case. If the case is sent back to the original court for a new hearing, our Chicago criminal defense attorneys can represent you there, keeping your freedom and rights in focus. Our Chicago office is in Roscoe Village, and you can reach the firm through the contact page.

FAQ

How long do I have to file an appeal in an Illinois criminal case?

Generally 30 days. Rule 606 sets the notice of appeal at 30 days after the final judgment, or 30 days after the order disposing of a timely post-trial motion. Rule 605 describes the same 30 days running from the date sentence is imposed. Confirm your exact dates with a lawyer or the clerk.

Can I present new evidence or witnesses on appeal?

In most cases, no. The appellate court reviews the record and the judge's decisions. It does not hear new witnesses or testimony.

Can I appeal if I pleaded guilty?

You may, but only after filing the motion Rule 604(d) requires within 30 days of sentencing, either to reconsider the sentence or to withdraw the plea.

Can I get a lawyer if I cannot afford one?

Under Rule 607, the circuit court decides whether you have counsel on appeal and, if you are found indigent and want a lawyer, it appoints one in the cases the rule covers.

What if I missed the 30-day deadline?

Rule 606(c) allows a motion for leave to file a late notice of appeal, but only in the limited situations the rule describes, and with strict time limits of its own. Speak to a lawyer right away.

Does winning an appeal end my case?

Not necessarily. The case may be sent back to the trial court for a new hearing.