Appeal from the Circuit Court of Lake County. No. 97-CF-1088 Honorable Raymond J. McKoski, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
On appeal, defendant, Tony Gonzales, argues that the trial court erroneously denied his petition for credit for time served in pretrial home detention. We affirm after concluding that (1) defendant was ineligible for credit and (2) even if defendant was eligible, the trial court had the discretion to deny the request.
On April 24, 1997, defendant was arrested after an undercover agent watched him buy approximately one kilogram of cocaine. Defendant was charged with unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 1998)), unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(D) (West 1998)), unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 1998)), and four counts of criminal drug conspiracy (720 ILCS 570/405.1(a) (West 1998)).
When defendant was released on bond, the trial court ordered him to remain home from 11 p.m. to 6 a.m. each day. The court permitted defendant to leave home only for work, and a bond supervision officer periodically verified that defendant complied with the curfew.
Defendant spent eight months in pretrial home detention before he pleaded guilty to one amended count of criminal drug conspiracy to sell between 100 and 400 grams of cocaine. In exchange for the guilty plea, the State agreed to dismiss the remaining charges and recommend a 10-year sentence cap. Defendant petitioned for credit for time served in home detention, and the court denied the postplea request, concluding that (1) "defendant was allowed to leave his home six days a week, 11 hours a day for employment" and (2) "defendant is ineligible for home detention credit pursuant to" section 5--8--7(d) of the Unified Code of Corrections (Code) (730 ILCS 5/5--8--7(d) (West 1998)).
On appeal, defendant argues that the trial court erroneously denied his petition for pretrial credit, and he asks us to modify his sentence to reflect the credit. Sections 5--8--7(b) through (d) of the Code (730 ILCS 5/5--8--7(b) through (d) (West 1998)) govern the calculation of credit for time served in pretrial custody. The purpose of the "credit-against-sentence" provision of section 5--8--7(b) is to ensure that a defendant does not remain incarcerated after his sentence expires. People v. Ramos, 138 Ill. 2d 152, 159 (1990). Sections 5--8--7(b) and (d) provide in relevant part:
"(b) The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3--6--3 of this Code. Except when prohibited by subsection (d), the trial court may give credit to the defendant for time spent in home detention *** if the court finds that the detention *** was custodial.
(d) An offender sentenced to a term of imprisonment for an offense listed in paragraph (2) of subsection (c) of Section 5--5--3 of this Code shall not receive credit for time spent in home detention prior to judgment." (Emphasis added.) 720 ILCS 5/5--8--7(b), (d) (West 1998).
Under section 5--8--7(b), a trial court must award credit if a defendant is "in custody" while awaiting trial. Conversely, section 5--8--7(d) prohibits the court from awarding credit if the defendant is convicted of one of the offenses listed in section 5--5--3(c)(2) of the Code (730 ILCS 5/5--5--3(c)(2) (West 1998)). Finally, a trial court may award credit for time served in home detention if the court finds that the detention was "custodial." 720 ILCS 5/5--8--7(b) (West 1998).
Defendant first argues that he is entitled to credit for the time he served in home detention because he was "in custody" under section 5--8--7(b). However, it is well settled that a home detainee is not "in custody" regardless of the restrictions imposed upon his conditional pretrial release. See, e.g., Ramos, 138 Ill. 2d at 156-57; People v. Gordon, 207 Ill. App. 3d 352, 356 (1991).
This case is similar to Ramos, where the defendant was released on a home detention bond and was not allowed to leave his home without the prior consent of his probation officer or the court. Our supreme court held that the term "custody" as used in section 5--8--7(b) was not intended to include the period during which a defendant is released on bond, regardless of the restrictions imposed on him during that time. Ramos, 138 Ill. 2d at 160. The court reasoned that home detention differs from confinement in a jail or a prison. In particular, an offender detained at home is not subject to the regimentation of a penal institution and, when inside his residence, he enjoys unrestricted freedom of activity, movement, and association. Moreover, a home detainee enjoys greater privacy than a person who is incarcerated. Ramos, 138 Ill. 2d at 159.
In Gordon, the defendant, a member of the Army, was charged with several sex offenses. He was released on a recognizance bond on the condition that he " 'follow orders issued by the Army.' " Gordon, 207 Ill. App. 3d at 353. The defendant was confined to his barracks and was permitted to leave without an escort only for work. He was ordered to report hourly each day until he went to sleep, and, for several months, he was not allowed to visit his family or use a telephone. After a 19-month confinement, the defendant pleaded guilty to criminal sexual assault, and the trial court denied his request for credit under section 5--8--7(b). Gordon, 207 Ill. App. 3d at 354. In affirming the trial court's decision, this court held that the defendant was not entitled to a credit because he was not "in custody" when confined to the army base. The conditions placed on ...