from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Circuit No. 12-CF-732, Honorable Carla
Alessio-Policandriotes, Judge, Presiding.
O'BRIEN JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice Holdridge concurred in the
judgment and opinion. Justice Wright dissented, with opinion.
1 Defendant, Christopher Brown, appeals the denial of his
request to correct the mittimus to reflect additional
presentence custody credit. We vacate and remand with
3 On March 29, 2012, the State filed a complaint against
defendant. The circuit court in Will County issued an arrest
warrant the same day. At the time, defendant was in the
custody of Cook County. On May 2, 2012, the circuit court
issued a petition for habeas corpus asking the Cook
County sheriff's department to deliver defendant to the
circuit court in Will County on May 9, 2012. Defendant
appeared on that day in the custody of the Cook County
sheriff's department and a public defender was appointed.
4 On May 9, 2013, the parties entered a plea agreement in
which defendant would plead guilty to home invasion (720 ILCS
5/12-11(a)(1) (West 2010)) and receive a sentence of 11
years' imprisonment. At sentencing, the court asked if
the mittimus indicated that defendant would receive
presentence custody credit from May 9, 2012, to May 9, 2013.
Defense counsel agreed. The court sentenced defendant
pursuant to the plea agreement and gave him credit for time
served from May 9, 2012, to May 9, 2013. Defendant was also
ordered to pay monetary assessments, including, inter
alia: (1) $30 Children's Advocacy Center fee (55
ILCS 5/5-1101(f-5) (West 2012)), (2) $50 court systems fee
(55 ILCS 5/5-1101 (West 2012)), (3) $10 specialized court fee
(55 ILCS 5/5-1101(d-5) (West 2012)), (4) $100 crime
laboratory analysis fee (730 ILCS 5/5-9-1.4 (West 2012)), and
(5) $100 Trauma Center Fund fee (730 ILCS 5/5-9-1.10 (West
5 Defendant did not file a motion to reconsider sentence or a
direct appeal, but on October 27, 2014, he filed a pro
se motion for order nunc pro tunc requesting
the circuit court correct the mittimus to reflect credit for
time he spent in custody in Cook County. The court asked the
State to review the motion, and the prosecutor stated,
"[Defendant] is looking for time credit when he was in
Cook County. However, the time he is looking for was before
he was even charged with this crime. He is certainly not
entitled to it on this case." The circuit court denied
7 On appeal, defendant argues that (1) he should receive
presentence custody credit beginning on the date he was
charged and the arrest warrant was issued, equaling an
additional 41 days of presentence custody credit, (2) his
$100 Trauma Center Fund and crime laboratory analysis fees
must be vacated because he was not convicted of any offense
that required the imposition of those fees, and (3) he should
receive $5-per-day presentence custody credit against his
8 At the outset, we note that defendant incorrectly labeled
his request for additional presentence custody credit as a
"Motion for Order Nunc Pro Tunc." As
nunc pro tunc orders may not be used to challenge a
court's previous decision, we will construe
defendant's motion as a motion to correct the mittimus.
See People v. White, 357 Ill.App.3d 1070, 1072-73
9 Section 5-4.5-100(b) of the Unified Code of Corrections
states, "[an] offender shall be given credit on the
determinate sentence or maximum term and the minimum period
of imprisonment for the number of days spent in custody as a
result of the offense for which the sentence was
imposed." 730 ILCS 5/5-4.5-100(b) (West 2012).
Sentencing credit for time served is mandatory and a claim of
error in calculating such credit cannot be forfeited.
People v. Hill, 2014 IL App (3d) 120472, ¶
see also People v. Johnson, 401 Ill.App.3d 678, 680
10 Here, defendant was charged and a warrant was issued on
March 29, 2012, while defendant was in the custody of Cook
County. While the dissent takes issue with the fact that
defendant did not provide any certified records with regard
to his custodial standing, we note the State does not dispute
that defendant was in the custody of the Cook County sheriff.
In fact, the State's appellee brief provides, "The
defendant was in the custody of Cook County until his first
appearance with Will County on May 9, 2012." We also
note that the report of proceedings from the trial court
below reveals that both the court and the defense attorney
specifically acknowledged that defendant was in Cook
County's custody. The report of proceedings and the
State's affirmation of the fact are consistent with the
information on the Department of Corrections' website.
Accordingly, we hold defendant was in simultaneous custody
for his Cook and Will County offenses on March 29, 2012.
11 An offender who is in simultaneous custody on two offenses
is entitled to presentence custody credit on the newer
offense beginning on the date he or she was charged and
became subject to arrest. White, 357 Ill.App.3d at
1075; People v. Robinson, 172 Ill.2d 452, 463
(1996); Johnson, 401 Ill.App.3d at 681-83.
Therefore, defendant is entitled to an additional 41 days of
presentence custody credit ...