Find Legal Information

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Brian Roberson, was convicted of violating his bailbond (720 ILCS 5/32--10(a) (West 2000)), and he was sentenced tofour years' imprisonment with credit for three days served. Onappeal, defendant argues that he should receive an additional 267days of credit. We affirm.

On September 4, 1999, defendant was arrested for burglary (720ILCS 5/19--1(a) (West 2000)), and on September 6, 1999, he postedbond. At defendant's arraignment, defendant asked for acontinuance, and the court continued the matter until October 25,1999. In setting this date, the court explained to defendant thathe must appear in court on that date or the court would issue a no-bond warrant for defendant's arrest. Defendant indicated that heunderstood the court's warning.

On October 25, 1999, defendant failed to appear in court, andthe court issued a warrant for defendant's arrest. On April 23,2000, defendant was arrested on the warrant in California. Defendant was extradited to Illinois, and on January 11, 2001, hewas indicted for violating the terms of his bail bond. On January14, 2001, defendant posted bond on the burglary charge. A few dayslater, on January 16, 2001, defendant was taken into custody on theviolation-of-bail-bond charge, and on January 18, 2001, defendantwas issued a recognizance bond for the violation-of-bail-bondcharge.

On March 6, 2001, defendant again was indicted for his bailbond violation, which occurred on October 25, 1999. Following abench trial, defendant was convicted of violating his bail bond,the State nol-prossed the burglary charge, and defendant wassentenced. Defendant subsequently filed a posttrial motion,arguing, among other things, that he was entitled to the 267 dayshe served in custody on the burglary offense, i.e., from April 23,2000, to January 14, 2001. The trial court denied the motion, andthis timely appeal followed.

Defendant argues that pursuant to section 5--8--7(c) of theUnified Code of Corrections (Code) (730 ILCS 5/5--8--7(c) (West2000)), he should receive credit against his violation-of-bail-bondsentence for the time he served in custody awaiting a trial on thedismissed burglary charge. The State argues that defendant is notentitled to this credit because the two offenses, burglary andviolation of the bail bond, are two separate offenses. We agreewith the State.

Section 5--8--7(c) of the Code provides as follows:

"An offender arrested on one charge and prosecuted onanother charge for conduct which occurred prior to [theoffender's] arrest shall be given credit on the determinatesentence or maximum term and the minimum term of imprisonmentfor time spent in custody under the former charge not creditedagainst another sentence." 730 ILCS 5/5--8--7(c) (West 2000).

When interpreting a statute, this court must ascertain and giveeffect to the legislature's intent, which is best determined afterexamining the language used in the statute. People v. Robinson,172 Ill. 2d 452, 457 (1996). The words used in the statute shouldbe given their plain and ordinary meaning, and when the language inthe statute is unambiguous, this court must apply the statutewithout resorting to any aids of construction. Robinson, 172 Ill.2d at 457. Because interpreting a statute presents a question oflaw, our review is de novo. Robinson, 172 Ill. 2d at 457.

This case hinges on the proper characterization of the April23, 2000, arrest of defendant in California. If the April 23,2000, arrest was an arrest for the burglary charge, section 5--8--7(c) would clearly apply. However, the April 23, 2000, arrest wasnot for the charge of burglary. As of April 23, 2000, defendanthad already been indicted for that burglary and arrested on thatcharge on September 4, 1999. Rather, the bench warrant commandingdefendant's arrest, served on April 23, 2000, was for failure toappear and was issued pursuant to section 110--3 of the Code ofCriminal Procedure of 1963. 725 ILCS 5/110--3 (West 1998)(issuance of arrest warrant on failure to comply with condition ofbail bond or recognizance). The bench warrant clearly commandedthe arrest of defendant for "FAILURE TO APPEAR" and included thecitation "725 ILCS 5/110--3" directly below these words. As aresult, the conduct for which defendant was prosecuted (failing toappear in court on October 25, 1999) did not occur prior todefendant's September 4, 1999, arrest for burglary. Therefore, wefind that section 5--8--7(c) does not apply to this case.

Moreover, if the bench warrant on which defendant wasarrested on April 23, 2000, were characterized as a second arrestfor burglary or a re-arrest on the burglary charge, the warrantwould have been invalid. Our supreme court has stated:

"Common sense dictates that issuing a second arrest warrant on

identical charges after a defendant has been arrested and released on bond produces a warrant that is invalid ab initio. To hold otherwise would provide police with a 'pocket warrant'that could be executed at any time and place, despite the factthat the target is already subject to the jurisdiction of acourt for the crime charged. In addition, such a practiceundermines a citizen's constitutional right to bail." Peoplev. Turnage, 162 Ill. 2d 299, 305-06 (1994).

Finally, granting defendant credit would not further thegeneral intent of section 5--8--7(c). The legislature added thatsection because it sought to prevent the State from dropping aninitial charge, with the intent of charging the defendant withanother crime, in order to deny the defendant credit for the timespent in jail on the first charge. People v. Townsend, 209 Ill.App. 3d 987, 990 (1991). Here, there is no evidence ofmanipulation or technical evasion by the State. The State did notsubstitute charges based upon conduct that occurred prior to hisarrest thereby depriving defendant of credit for jail time. Instead, it was defendant's act of failing to appear in court thatresulted in the prosecution for violation of bail bond. Thestatute is clear that, in order to receive credit for time spent incustody on one charge, an offender must be prosecuted for conductthat occurred prior to the arrest. Because defendant was firstarrested for burglary but then prosecuted for violation of bailbond, the language of the statute does not provide credit for timeserved on the burglary charge. Accordingly, we affirm the trialcourt's denial of defendant's posttrial motion requesting creditfor time served while awaiting trial on the burglary charge.

For these reasons, we affirm the judgment of the circuit courtof Du Page County.

Affirmed.

KAPALA, J., concurs.

PRESIDING JUSTICE HUTCHINSON, dissenting:

I respectfully dissent. I believe there is evidence ofmanipulation or technical evasion by the State, and I believedefendant is entitled to receive credit for the time he spent incustody on the burglary charge.

In September 1999 defendant was arrested and charged withcommitting the offense of burglary (720 ILCS 5/19--1(a) (West1998)), to which he posted a bail bond. On October 25, 1999,defendant failed to appear in court, and the trial court thereafterissued a warrant for defendant's arrest pursuant to section 110--3of the Code of Criminal Procedure of 1963 (725 ILCS 5/110--3 (West1998)). Section 110--3 provides:

"Upon failure to comply with any condition of a bail bond*** the court having jurisdiction at the time of such failuremay, in addition to any other action provided by law, issue awarrant for the arrest of the person at liberty on bail ***. The contents of such a warrant shall be the same as requiredfor an arrest warrant issued upon complaint. When a defendantis at liberty on bail *** on a felony charge and fails toappear in court as directed, the court shall issue a warrantfor the arrest of such person. Such warrant shall be notedwith a directive to peace officers to arrest the person andhold such person without bail and to deliver such personbefore the court for further proceedings." 725 ILCS 5/110--3(West 2000).

The warrant authorizing defendant's arrest clearly states that theoriginal violation was that of burglary. Because the offense ofburglary is a felony (see 720 ILCS 5/19--1(b) (West 2000)), thetrial court was required to issue a warrant for defendant's arrestwhen he failed to appear in court on October 25, 1999. See 725 ILCS5/110--3 (West 2000).

The bench warrant to arrest is merely a procedural tool bywhich law enforcement personnel may lawfully seize and detain adefendant until such time as she or he is brought back to thejurisdiction to face prosecution on the underlying offense. See 725ILCS 5/107--1 et seq. (West 2000); People v. Hayes, 139 Ill. 2d 89,127 (1990), overruled on other grounds, People v. Tisdel, 201 Ill.2d 210 (2002). The issuance of an arrest warrant does not, in andof itself, formally charge a defendant with a crime. People v.Racanelli, 132 Ill. App. 3d 124, 130 (1985).

In the present case, the offense or violation underlying theissuance of the bench warrant to arrest was burglary. The October25, 1999, warrant for defendant's arrest was predicated on hisfailure to appear in court on the burglary charge. The October 25,1999, warrant did not formally charge defendant with committing acrime; it was merely a procedural tool the trial court wasstatutorily required to utilize to effect defendant's return so thathe could face prosecution on the burglary. Indeed, the warrant fordefendant's arrest was effected on April 23, 2000, when lawenforcement personnel in California gained custody of defendant. I believe the April 23, 2000, arrest merely relates back to theoriginal charge of burglary and I believe that section 5--8--7(c)of the Unified Code of Corrections applies.

The Unified Code of Corrections mandates that a defendantreceive credit for time served. 730 ILCS 5/5--8--7 (West 2000). Forfeiture rules do not apply. People v. Dieu, 298 Ill. App. 3d245, 249 (1998). This court has previously stated that a defendantis entitled to receive credit against each sentence imposed for anoffense for which the defendant was in custody when simultaneouslyin custody for more than one offense. People v. Wyatt, 305 Ill.App. 3d 291, 299 (1999), citing People v. Robinson, 172 Ill. 2d 452,454 (1996).

I recognize that the State did not formally charge defendantwith violating his bail bond until January 16, 2001; however,defendant was chargeable with that offense as early as October 25,1999, when he failed to appear in court. I believe the Statemanipulated defendant's liberty when it allowed him to remain incustody for approximately eight months without bail before charginghim with violating his bail bond. Clearly, had the State chargeddefendant with violating his bail bond when the arrest warrant waseffected in California, he would have been in simultaneous custodyon both the burglary and the violation-of-bail-bond offenses. Thenthere would have been no question whether defendant was entitled tothe credit for time spent in custody. See Wyatt, 305 Ill. App. 3dat 299. For the State to wait until the eleventh hour to formallycharge defendant with violating his bail bond and then for the trialcourt and this court to forfeit his eight months spent in custodyostensibly for the offense of "failure to appear" is patentlyunfair. The result is that defendant's four-year sentence is nowfour years and eight months.

I would modify defendant's sentence to reflect an extra 267days' credit for time served.