People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07)
Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.
Is this a conflict of interest?
Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.
…But First Let’s Talk Conflict of Interest
In Illinois the courts have identified three per se conflicts of interest specific to criminal defense attorneys:
(2) when defense counsel contemporaneously represents a prosecution witness; and
(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.
With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict.
So this defendant definitely had a legitimate (probably winnable issue) issue on appeal.
However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea.
Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d).
While that motion was filed when the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and the court had no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless).
Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal.