People v. Hollister

• Decision Date: 23 September 2009
• Docket Number: No. 3-08-0066.,3-08-0066.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marc A. HOLLISTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

916 N.E.2d 592

334 Ill.Dec. 177

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marc A. HOLLISTER, Defendant-Appellant.

No. 3-08-0066.

Appellate Court of Illinois, Third District.

September 23, 2009.

Santiago A. Durango (Court-appointed), Office of the State Appellate Defender, Ottawa, for Marc A. Hollister.

Terence M. Patton, Assistant State's Attorney, Cambridge, Terry A. Mertel, Deputy Director, Dawn D. Duffy, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice SCHMIDT delivered the opinion of the court:

The defendant, Marc A. Hollister, pled guilty to reckless homicide (720 ILCS 5/9-3(a), (e) (West 2000)) and aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d)(1)(C) (West 2000)). The court sentenced him to concurrent terms of imprisonment of 9 and 3 years, respectively, and awarded him 11 days of presentence custody credit (730 ILCS 5/5-8-7(b) (West 2000)). The defendant filed the instant motion for order nunc pro tunc, requesting, inter alia, additional presentence custody credit for the time he spent in the hospital prior to his admission to the Henry County jail. The trial court denied the request.

On appeal, the defendant argues that the court erred in denying him credit for the time he spent in the hospital.

At the outset, we note that although the defendant filed a "Motion for Order * * * Nunc Pro Tunc," by requesting additional presentence credit, he is actually asking to amend the mittimus. See People v. White, 357 Ill.App.3d 1070, 294 Ill.Dec. 707, 831 N.E.2d 657 (2005). While a trial court generally loses jurisdiction over a criminal case after the 30-day period in which to file a postjudgment motion expires, the court retains jurisdiction to correct insubstantial matters, such as amending the mittimus, after it would otherwise lose jurisdiction. White, 357 Ill. App.3d 1070, 294 Ill.Dec. 707, 831 N.E.2d 657.

Pursuant to section 5-8-7(b) of the Unified Code of Corrections, a defendant is entitled to credit against his sentence for time spent in custody as a result of the offense for which the sentence is imposed. 730 ILCS 5/5-8-7(b) (West 2000). In determining what constitutes "time spent in custody" for purposes of section 5-8-7(b) (730 ILCS 5/5-8-7(b) (West 2000)), the supreme court has distinguished between confinement in a penal institution, which warrants section 5-8-7(b) credit, and "lesser forms of restraint," which do not. People v. Ramos, 138 Ill.2d 152, 158, 149 Ill. Dec. 273, 561 N.E.2d 643, 647 (1990) (court held defendant was not "in custody" pursuant to section 5-8-7 when he was released on bond but subject to home confinement); see also People v. Martin, 357 Ill.App.3d 663, 293 Ill.Dec. 909, 829 N.E.2d 834 (2005) (defendant who participated in the Cook County Day Reporting Program was not "in custody" for purposes of section 5-8-7 presentence credit). While the supreme court has never "expressly state[d] that section 5-8-7(b) [credit] is available only in instances of institutional confinement," from "the court's [own] comparison[s] of `confinement' with the `lesser restraints' * * *, it is clear * * * that such a limitation was * * * intended." Ramos, 138 Ill.2d at 159, 149 Ill.Dec. 273, 561 N.E.2d at 647.

In determining whether a defendant outside a penal institution is "in custody" for purposes of section 5-8-7, courts have considered whether the defendant experienced the same surveillance, lack of privacy, and regimentation as he would in a penal institution, or if he still enjoyed many of life's freedoms. See Ramos, 138 Ill.2d 152, 149 Ill.Dec. 273, 561 N.E.2d 643.

In this case, the trial court found that the defendant was not in custody while he was in the hospital, but entered custody on the day he was discharged from the hospital, and the court therefore denied the defendant's request for additional presentence credit. We agree.

The record shows that on December 23, 2000, the defendant was transported to the hospital immediately after the automobile collision. On this day, a Henry County police officer issued two traffic citations to the defendant for his conduct in causing the accident. Thereafter, on December 30, 2000, the hospital discharged the defendant. On this day, an arrest warrant was served on the defendant, and the face of the warrant shows that the defendant was "now in custody" of the Henry County jail.

We find there is no basis in the law for the defendant to request credit for...