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People v. Bagnell

May 03, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT E. BAGNELL, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois, No. 01-CF-16. Honorable Robert C. Marsaglia, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

PUBLISHED

A jury found the defendant, Robert E. Bagnell, Jr., guilty of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2), (c--1)(3) (West 2002)) and driving while his license was revoked (625 ILCS 5/6--303(a), (d) (West 2002)). He was sentenced to concurrent terms of five and three years' imprisonment, respectively, for these offenses. On appeal, the defendant argues that he should receive nine rather than eight days' credit toward his sentences for his presentence custody. The State agrees. The defendant also submits that the cause should be remanded for proper admonishments under Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001). We affirm the defendant's sentences as modified and remand for proper Rule 605(a) admonishments and further proceedings.

BACKGROUND

The record shows that the defendant was arrested for the above-mentioned infractions on February 6, 2001. He posted bond and was released from custody on February 14, 2001.

At trial, the jury found the defendant guilty of the offenses as noted above. The defendant then was sentenced on May 2, 2002. Following imposition of the sentences, the judge admonished the defendant as follows concerning the procedures involved in appealing his case:

"Mr. Bagnell, it's my duty to advise you that you have the right to appeal. You have a right to request the clerk to prepare and file a notice of appeal and the right, if indigent, to be furnished without cost with a transcript of these proceedings, including the trial or hearing. You also, if indigent, have a right to have counsel appointed on the appeal. Your right to appeal will only be preserved if a notice of appeal is filed in this trial court within 30 days of today."

The sentencing order indicates that the defendant is to receive eight days' credit toward his sentence for presentence incarceration. The defendant appeals.

ANALYSIS

I. Credit for Time Served

The defendant argues that he should receive nine rather than eight days' credit toward his sentence for time served. The State agrees.

A defendant is entitled to credit against his sentence for time spent in custody prior to sentencing. 730 ILCS 5/5--8--7(b) (West 2002). Any fraction of a day in custody counts as a full day for purposes of calculating the credit. People v. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147 (1994).

The defendant was arrested on February 6, 2001, and posted bond on February 14, 2001. He is therefore entitled to a presentence credit of nine rather than eight days. Accordingly, we order that the mittimus be modified to ...


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