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The People of the State of Illinois v. Gary L. Miller

November 21, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
GARY L. MILLER,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Marion County. Honorable Sherri L. E. Tungate, Judge, presiding.

The opinion of the court was delivered by: Presiding Justice Chapman

Unpublished opinion

NOTICE

Decision filed 11/21/11. The text of NO. 5-09-0679 this decision may be changed or corrected prior to the filing of a IN THE Petition for Rehearing or the disposition of the same.

PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

Justices Welch and Stewart concurred in the judgment and opinion.

OPINION

¶ 1 The defendant, Gary L. Miller, appeals the circuit court's summary dismissal of his pro se post-conviction petition. He prays that this court will find that defense counsel was ineffective and amend the mittimus to reflect an additional 34 days of credit. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The defendant was charged with burglary (720 ILCS 5/19-1(a) (West 2004)) and theft under $300 (720 ILCS 5/16-1(a) (West 2004)). He posted bond on the charge on October 31, 2007. The next day he was arrested for attempted burglary (720 ILCS 5/8-4(a) (West 2004)). The defendant remained in jail on that charge. The record does not indicate that the defendant surrendered his bond in the burglary and theft case.

¶ 4 On December 3, 2007, the defendant pled guilty to theft under $300 in exchange for the State recommending a six-year prison sentence. The State also dismissed all other charges, including the attempted burglary charge. The defendant was released on bond until January 4, 2008. The defendant was given sentencing credit from August 29, 2007, through October 31, 2007. He did not file a motion to withdraw his guilty plea.

¶ 5 The defendant filed a pro se post-conviction petition alleging that he received ineffective assistance of counsel because trial counsel did not object to the double enhancement of the defendant's sentence. On November 16, 2009, the court dismissed the defendant's petition. The defendant filed this timely appeal. After filing his notice of appeal, the defendant filed a pro se motion for an order nunc pro tunc alleging that he was entitled to additional sentencing credit. However, the circuit court did not enter an order regarding the motion because the appellate court had already assumed jurisdiction at the time of the filing of the motion.

¶ 6 ANALYSIS

¶ 7 We review de novo the circuit court's dismissal of a post-conviction petition without an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 389 (1998). On appeal, the defendant argues that trial counsel was ineffective for failing to advise him to surrender his bond when he was taken into custody on a subsequent charge. He contends that this failure entitles him to additional days of sentencing credit for the time frame of ...


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