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People v. Hernandez

January 14, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MIGUEL A. HERNANDEZ, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Du Page County. No. 01-CF-2322 Honorable Robert J. Anderson, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Hutchinson

[8] Following a bench trial, defendant, Miguel A. Hernandez, was convicted of violating his bail bond (720 ILCS 5/32--10(a) (West 2000)). The trial court sentenced defendant to 3½ years' imprisonment with credit for 176 days in pretrial custody. On appeal, defendant contends that (1) he was denied the effective assistance of counsel as a result of his counsel's failure to file a written speedy-trial demand, and (2) the trial court erred when it refused to grant him an additional 122 days of credit for time spent in pretrial custody. We affirm as modified.

[9] On July 31, 1998, defendant was indicted for the offense of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1998)). On January 14, 1999, after his arrest, he was granted bail. On March 16, 1999, defendant failed to appear in court, and the trial court revoked his bond. The trial court issued a bench warrant pursuant to section 110--3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/110--3 (West 1998)). The warrant authorizing defendant's arrest indicates that the "original violation" was that of aggravated criminal sexual abuse. On April 20, 1999, defendant's bail was forfeited.

[10]  The warrant for defendant's arrest was effected on April 14, 2001, when law enforcement personnel gained custody of defendant. Thereafter, defendant remained in custody.

[11]  On August 14, 2001, the State dismissed the aggravated criminal sexual abuse charge against defendant. However, also on August 14, 2001, the State charged defendant by complaint with committing the offense of violation of bail bond (720 ILCS 5/32--10(a) (West 2000)). The complaint alleged that defendant, "on or about the 20th day of April, 1999, *** committed the offense of Violation of Bail Bond in that *** defendant":

[12]  
"was admitted to bail *** in case 98 CF 1343 [the aggravated criminal sexual abuse charge] for appearance in a court of Du Page County and he subsequently incurred a forfeiture of his bail on March 16, 1999 and has willfully failed to surrender himself within thirty (30) days following the date of such forfeiture."

[13]  On September 6, 2001, a grand jury indicted defendant for violation of bail bond. On September 10, 2001, defense counsel filed a motion to dismiss the violation-of-bail-bond charge pursuant to the speedy-trial provisions contained in section 103--5 of the Code (725 ILCS 5/103--5 (West 2000)). In his motion, defense counsel argued that 150 days had passed since defendant was taken into custody on April 14, 2001, and therefore, defendant's right to a speedy trial on the bail bond charge had been violated. Following a hearing on September 18, 2001, the trial court denied defendant's motion to dismiss. Also on September 18, defendant filed a written demand for a speedy trial.

[14]  On October 30, 2001, prior to trial, defense counsel renewed his motion to dismiss based upon a violation of the speedy-trial statute, which the trial court denied. The case proceeded to a bench trial, after which defendant was found guilty of violation of bail bond. On January 14, 2002, the trial court commenced a sentencing hearing, where defense counsel requested that defendant be credited for time served from the date when his arrest warrant was effectuated. The trial court ruled that it would give sentencing credit only from the date the charge was filed, August 14, 2001, and not for any time served before that date. Following a hearing in aggravation and mitigation, the trial court sentenced defendant to three years and six months' imprisonment, with 176 days of credit for time served. The trial court denied defendant's post-sentencing motion, and defendant timely appeals.

[15]  Initially, we must resolve defendant's open motion for leave to file a supplemental brief. On January 22, 2003, defendant filed his initial brief in this matter. On February 19, 2003, we allowed the State's motion for an extension of time to file its brief and extended its due date to May 28, 2003. On May 7, 2003, however, defendant moved for leave to file a supplemental brief, which we allowed on May 9, 2003. Thereafter, on May 13, 2003, the State moved to vacate our order and requested our consideration of its response to defendant's motion; we allowed the State's motion to vacate. In its response to defendant's motion for leave to file a supplemental brief, the State objected and moved this court to strike defendant's second contention of error, which concerned defendant's request for additional credit for time served. Alternatively, the State asked this court allow its filing of a supplemental brief in response to defendant's supplemental brief. On May 30, 2003, we allowed the State's alternative request to file a supplemental brief, which the State did on June 11, 2003.

[16]  In his supplemental brief, defendant contends that (1) he was denied the effective assistance of counsel for his counsel's failure to file a written speedy-trial demand when he was taken into custody on April 14, 2001, and (2) the trial court erred when it refused to grant him an additional 122 days of credit for time spent in pretrial custody from April 14, 2001, to August 14, 2001. In the State's responsive supplemental brief, the State first requests this court to deny defendant's motion for leave to file a supplemental brief, which remains outstanding. The State secondly requests that we consider defendant's contentions waived because he failed to raise them in his initial brief. As we have already allowed the State's alternative request to file a supplemental brief in response to defendant's supplemental brief, and because defendant requested leave to file a supplemental brief prior to the State's submission of its original brief, we see no compelling reason to deny defendant full appellate review of his case. Moreover, the goals of obtaining a just result and maintaining a sound body of precedent override the administrative convenience of waiver the State is advocating here. See People v. Bailey, 159 Ill. 2d 498, 506 (1994). Accordingly, we allow defendant's May 7, 2003, motion for leave to file a supplemental brief and deny the State's waiver requests.

[17]  For clarity of discussion, we will first address defendant's issue concerning custodial credit at sentencing. Defendant contends that the trial court erred when it refused to grant him an additional 122 days of credit for time spent in custody from April 14, 2001, to August 14, 2001. He asks that we grant the additional credit pursuant to either section 5--8--7(a) or (b) of the Unified Code of Corrections (the Corrections Code) (730 ILCS 5/5--8--7(a), (b) (West 2000)). The State counters that defendant is not entitled to receive any additional credit and in support of its position cites People v. Roberson, 337 Ill. App. 3d 685 (2003), appeal allowed, No. 96159 (October 2, 2003).

[18]  In Roberson, the defendant was arrested in September 1999 and charged with committing the offense of burglary (720 ILCS 5/19--1(a) (West 1998)), to which he posted a bail bond. In October 1999 the defendant failed to appear in court, and the trial court issued a warrant for his arrest pursuant to section 110--3 of the Code (725 ILCS 5/110--3 (West 1998)). The warrant authorizing the defendant's arrest stated that the original violation was that of burglary. The warrant for the defendant's arrest was effected in April 2000. Approximately eight months later the defendant was indicted for the offense of violation of bail bond (720 ILCS 5/32--10(a) (West 2000)). At a bench trial, the trial court found the defendant guilty of violating his bail bond, and the State nol-prossed the burglary charge. The trial court sentenced the defendant but refused to credit his sentence with the time served between his April 2000 arrest and his January 2001 indictment. Roberson, 337 Ill. App. 3d at 686-87.

[19]  The defendant appealed, seeking the additional credit pursuant to section 5--8--7(c) of the Corrections Code, which provides:

[20]  
"An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to [the offender's] arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former ...

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