Rehearing denied: August 22, 2013
Held: [*] Although defendant’s pro se postconviction petition filed after he served his sentence and completed his mandatory supervised release term was properly dismissed summarily for lack of standing in view of the fact that he was no longer in custody, the request he made for the first time on appeal from the dismissal of his postconviction petition to apply the credit he was entitled to for the time he spent in custody prior to sentencing against his drug assessment was granted, since the credit is mandatory, it cannot be waived, it can be raised for the first time on appeal, even in a postconviction proceeding, and his lack of standing under the postconviction statute did not bar the trial court from granting his request.
Appeal from the Circuit Court of Du Page County, No. 02-CF-1177; the Hon. George J. Bakalis, Judge, presiding.
Thomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the People.
Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 Defendant, Alexander Vasquez, appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, defendant does not seek postconviction relief but instead seeks a $1, 595 credit against a $3, 000 drug assessment, for time spent in custody before he was sentenced, under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2002)). We modify the sentencing order.
¶ 2 I. BACKGROUND
¶ 3 On May 14, 2002, defendant was charged by indictment with unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)). Both charges were Class X felonies and involved 100 grams or more but less than 400 grams of cocaine. On May 19, 2004, pursuant to a verbal plea agreement, defendant pled guilty to both counts and was sentenced to two concurrent terms of 10½ years' imprisonment. Additionally, the plea negotiation established payment of a $3, 000 controlled substance assessment, a $12, 377 street value fine, a $200 DNA fee, a $100 lab fee, and a $100 "EMS" fee.
¶ 4 The trial court imposed a sentence in accordance with the agreement and credited defendant 319 days for time spent in presentencing custody. Defendant's prison term ended on May 2, 2008, and his term of mandatory supervised release (MSR) ended on May 2, 2011.
¶ 5 On September 4, 2008, defendant was indicted in a federal suit for conspiracy to distribute cocaine. As a result of the federal case, he was convicted and sentenced to 20 years in a federal penitentiary.
¶ 6 Several months after defendant completed his MSR term, on February 7, 2012, defendant filed a pro se petition for postconviction relief alleging that his convictions here should be vacated because his attorney was ineffective. Defendant alleged that his attorney failed to advise him that his plea could be used to enhance subsequent convictions. Defendant's postconviction petition did not include a claim for monetary credit under the section 110-14.
¶ 7 On February 22, 2012, the trial court summarily dismissed defendant's postconviction petition. The trial court reasoned that defendant had no standing to file the petition given that he was no longer in custody on the Du Page County case. The court went on to find that, even if defendant had standing, the petition would fail because there was no legal ...