2016 IL App (1st) 142582
Ill. App. Ct.2016Background
- Kenneth Jones was arrested Aug 24, 2013 for retail theft, released on bond Aug 26, 2013, then surrendered on a separate prior charge Oct 17, 2013.
- On Nov 6, 2013 Jones appeared on the retail-theft charge and defense counsel asked to exonerate bond nunc pro tunc to Oct 17 so Jones would get custody credit from that earlier date; the court granted the request.
- Jones was convicted after a bench trial of retail theft and sentenced July 14, 2014 to 3 years prison; the trial court credited him with 246 days of presentence custody and $80 credit against fines.
- The mittimus reflected an incorrect presentence credit calculation; Jones sought correction to 273 days (including custody from Oct 17), while the State argued for 253 days (crediting custody only from Nov 6).
- The appellate court examined whether the Nov 6 nunc pro tunc order could retroactively treat Jones as in custody on the retail-theft charge as of Oct 17 and thus increase his section 5-4.5-100(b) custody credit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly exonerated bond nunc pro tunc to Oct 17, 2013 | The State acquiesced at trial and later accepted effect of the nunc pro tunc order | Jones contends nunc pro tunc validly backdated exoneration to Oct 17 so he gets custody credit from that date | Nunc pro tunc was improper; vacated because no prior court action on Oct 17 existed to correct |
| Whether Jones is entitled to presentence custody credit from Oct 17, 2013 | Jones essentially asks court to honor the nunc pro tunc and award credit from Oct 17 | The State argues credit only runs from Nov 6 (when bond was actually exonerated) plus initial Aug 24–26 custody | Court held under Arnhold/Robinson and statute, credit runs from Nov 6; total 253 days credited |
| Whether a nunc pro tunc entry may supply omitted judicial action (exoneration) that never occurred | Implicitly argued in trial court by State/defense consenting to wording | Jones argues nunc pro tunc may be used to reflect intended retroactive exoneration | Court held nunc pro tunc limited to recording what court actually did; cannot supply judicial action that never occurred |
| Whether appellate court can correct the mittimus without remand | N/A | Jones requested mittimus reflect full claimed credit | Appellate court corrected mittimus to reflect 253 days without remand |
Key Cases Cited
- People v. Arnhold, 115 Ill. 2d 379 (1987) (defendant on bond arrested on another charge remains on bond until bond withdrawn or exonerated)
- People v. Robinson, 172 Ill. 2d 452 (1996) (reaffirming Arnhold; custody for credit purposes begins when bond is exonerated)
- People v. Melchor, 226 Ill. 2d 24 (2007) (nunc pro tunc limited to entering into the record what the court actually did; cannot correct judicial error)
- McCloud v. Rodriquez, 304 Ill. App. 3d 652 (1999) (record must clearly show prior judicial action that nunc pro tunc corrects)
- In re Aaron R., 387 Ill. App. 3d 1130 (2009) (standard of review and limits for nunc pro tunc orders)
- People v. Rivera, 378 Ill. App. 3d 896 (2008) (appellate court may correct mittimus without remand)