            NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
            precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

                                        2015 IL App (3d) 130577-U

                                  Order filed May 1, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 12th Judicial Circuit,
                                                       )      Will County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )      Appeal No. 3-13-0577
            v.                                         )      Circuit No. 09-CF-92
                                                       )
     ANDY JONES,                                       )      Honorable
                                                       )      Carla Alessio-Policandriotes,
            Defendant-Appellant.                       )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court.
           Presiding Justice McDade and Justice Schmidt concurred in the judgment.
     _____________________________________________________________________________

                                                   ORDER

¶1          Held: The mittimus and sentencing order are amended to reflect a total of 392 days of
                  presentence custody credit against the defendant's prison sentences.

¶2          The defendant, Andy Jones, appeals from the trial court's order granting in part and

     denying in part his motion to amend the mittimus to award additional presentence custody credit.

     On appeal, the defendant argues that he is entitled to 77 additional days of custody credit against

     his prison sentence. We affirm as modified.
¶3                                                 FACTS

¶4          The defendant pled guilty to five counts of identity theft (720 ILCS 5/16G-15(a)(1),

     (a)(4) (West 2008)). On count I, the trial court sentenced the defendant to 48 months' Treatment

     Alternatives for Safe Communities (TASC) probation. On counts II through V, the court

     sentenced the defendant to concurrent terms of 10 years' imprisonment. The court ordered the

     sentences to run concurrent with those imposed in DuPage County case No. 09-CF-719. The

     court awarded the defendant credit for 258 days of presentence custody and stayed the mittimus.

¶5          On March 26, 2010, the court issued a warrant for the defendant's arrest after he failed to

     appear for a treatment status hearing. Thereafter, the State filed a petition to revoke the

     defendant's probation.

¶6          On September 8, 2010, the court issued a writ of habeas corpus to the DuPage County

     sheriff to transport the defendant to the Will County circuit court for a hearing. On October 6,

     2010, the defendant appeared in custody for a hearing on the State's petition to revoke probation.

     During the hearing, the State withdrew its petition, and the court continued the case for review of

     the State's prior motion to lift the stay of the mittimus and the defendant's motion to reconsider

     sentence.

¶7          On December 22, 2010, the defendant appeared in the custody of the DuPage County

     sheriff. Defense counsel stated that the defendant had been resentenced to TASC probation in

     DuPage County, and the court ordered that the defendant continue TASC probation in Will

     County. The court also denied the State's motion to lift the stay on the mittimus and discharged

     the writ of habeas corpus on the DuPage County sheriff.

¶8          On November 15, 2012, the State filed a motion to execute the mittimus and a petition to

     revoke the defendant's probation due to the defendant's failure to complete drug treatment and a


                                                       2
       positive drug test. The defendant admitted to violating his probation, and the court granted the

       State's petition to revoke probation. The court imposed a concurrent sentence of 10 years'

       imprisonment on count I and lifted the stay on the mittimus on the remaining convictions.

¶9            On March 14, 2013, the defendant filed a motion to amend the mittimus arguing that he

       was entitled to an additional 195 days of "simultaneous custody" credit for the period of July 31,

       2010, to February 10, 2011, which he spent in the custody of the DuPage County sheriff. The

       court agreed in part and issued an amended sentencing order nunc pro tunc that awarded the

       defendant credit from September 8 to October 6, 2010. The defendant appeals.

¶ 10                                              ANALYSIS

¶ 11          The defendant argues that he is entitled to additional presentence custody credit for the

       period between October 6 and December 22, 2010, for a total of 394 days of credit against his

       prison sentence. The State argues that the trial court awarded the appropriate amount of credit.

       We review a presentence custody credit issue de novo. People v. Johnson, 401 Ill. App. 3d 678,

       680 (2010).

¶ 12          Section 5-4.5-100(b) of the Unified Code of Corrections provides a defendant with credit

       against his prison sentence 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 2008)). The credit calculation

       includes the day that the defendant is taken into custody and any partial day of custody, but

       excludes the day the defendant is sentenced. People v. Alvarez, 2012 IL App (1st) 092119, ¶ 71;

       People v. Smith, 258 Ill. App. 3d 261, 267 (1994). Where a defendant is simultaneously in

       custody on two or more charges, the presentence custody credit applies against the sentences

       imposed on all of the charges which result in conviction. People v. Robinson, 172 Ill. 2d 452,

       462-63 (1996). Where consecutive sentences are imposed, a defendant may only receive one day


                                                        3
       of credit for each day spent in presentence custody against the aggregate consecutive sentences.

       People v. Latona, 184 Ill. 2d 260, 271-72 (1998).

¶ 13          In the instant case, the record establishes that the defendant was in the custody of the

       DuPage County sheriff when the trial court issued a writ of habeas corpus to transport the

       defendant to the Will County circuit court for proceedings in this case. This writ remained in

       effect until December 22, 2010. Nevertheless, the trial court gave the defendant sentencing

       credit only for the period between September 8, 2010, when the writ was issued, and October 6,

       2010, when the State withdrew its petition to revoke probation. From October 6 to December

       22, 2010, the date when the writ was discharged, the defendant was twice transported to the Will

       County circuit court for proceedings in this case. Because the writ remained in effect during this

       period, the defendant is entitled to an additional 76 days of presentence custody credit.

       Therefore, we amend the mittimus and sentencing order to reflect that the defendant's sentence is

       offset by a total of 392 days 1 of presentence custody credit.

¶ 14                                               CONCLUSION

¶ 15          The judgment of the circuit court of Will County is affirmed as modified.

¶ 16          Affirmed as modified.



              1
                  In his brief, the defendant asks us to correct the mittimus and sentencing order to reflect

       an award of 394 days of presentence custody credit. However, this calculation appears to have

       mistakenly included September 25, 2009, and November 15, 2012, the dates when the defendant

       was sentenced and resentenced. The date of sentencing does not count for presentence custody

       credit, and therefore, the defendant is entitled to 392 days of credit. Alvarez, 2012 IL App (1st)

       092119, ¶ 71.


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