Defendant’s Petition for Nunc Pro Tunc is Denied
The Fifth District held that a nunc pro tunc order could not be used to award additional sentencing credit that the trial court had never previously granted.
In People v. Bolton, 2023 IL App (5th) 230123-U, the Illinois Fifth District Appellate Court considered whether a defendant could use a nunc pro tunc order to obtain additional credit against a prison sentence for time he spent in county jail before trial.
Thomas J. Bolton pleaded guilty to armed robbery while armed with a firearm and unlawful possession of a weapon by a felon. The circuit court sentenced him to 21 years for armed robbery and 12 years for unlawful possession of a weapon, with the sentences to run concurrently. Bolton received 318 days of credit for the time he spent in pretrial custody.
Several years later, Bolton filed a pro se motion asking the circuit court to enter a nunc pro tunc order awarding him an additional 318 days of credit under the County Jail Good Behavior Allowance Act. The circuit court denied the motion, and the Fifth District affirmed.
Quick Answer
Bolton was not entitled to another 318 days of credit. The appellate court held that a nunc pro tunc order can correct a clerical mistake by making the written record accurately reflect something the court previously decided, but it cannot be used to create a new judicial decision that the court never made. The court also concluded that the County Jail Good Behavior Allowance Act did not apply because Bolton was seeking credit for pretrial detention and had been sentenced to the Illinois Department of Corrections rather than to a fixed term in a county jail.
The Fifth District issued its decision on November 13, 2023, as a Supreme Court Rule 23 order. It is therefore generally not precedential except in the limited circumstances permitted by Rule 23.
Background of the Case
Bolton pleaded guilty to armed robbery while armed with a firearm under 720 ILCS 5/18-2(a)(2) and unlawful possession of a weapon by a felon under 720 ILCS 5/24-1.1(a).
On February 13, 2018, the Edgar County circuit court sentenced Bolton to 21 years in the Illinois Department of Corrections for armed robbery and 12 years for unlawful possession of a weapon. The sentences were ordered to run concurrently, meaning the 12-year sentence did not add another 12 years to the 21-year sentence.
The circuit court awarded Bolton 318 days of credit for the time he had spent in pretrial custody.
Original Sentence and Credit
Years
Armed robbery sentence
Years
Weapon possession sentence
Days Credit
Credit awarded for pretrial custody
Bolton Requested Another 318 Days of Credit
On February 6, 2023, Bolton filed a pro se motion asking the circuit court to enter an order nunc pro tunc awarding him another 318 days of credit.
Bolton relied on section 3 of the County Jail Good Behavior Allowance Act, 730 ILCS 130/3.
He argued that he was entitled to one day of good behavior allowance for each day he had spent in the county jail before trial. Because he had already received 318 days of ordinary pretrial detention credit, Bolton sought another 318 days under the good behavior allowance statute.
The circuit court denied the motion, finding that Bolton had already received the full amount of credit to which he was entitled.
Bolton appealed. The Office of the State Appellate Defender was appointed to represent him on appeal. After reviewing the case, appellate counsel concluded that there was no reasonably meritorious argument that the circuit court had erred and filed a motion to withdraw.
The Fifth District agreed and affirmed the circuit court’s judgment.
What Is a Nunc Pro Tunc Order?
Nunc pro tunc is a Latin phrase generally translated as “now for then.” In Illinois courts, a nunc pro tunc order is used to correct the record so that it accurately reflects an action the court actually took previously but that was omitted or incorrectly recorded because of a clerical error.
The power to enter a nunc pro tunc order is therefore limited. It cannot be used to change the substance of a prior decision or to create judicial action that the court did not previously take.
What Nunc Pro Tunc Can and Cannot Do
It Can
Correct the written record so that it accurately reflects something the court actually decided or did at an earlier time.
It Cannot
Create a new judicial ruling, award relief the court previously denied, or correct a substantive judicial error by pretending that it was a clerical mistake.
The Fifth District relied on Illinois Supreme Court precedent explaining that a nunc pro tunc order is limited to incorporating into the record something that was actually done by the court but inadvertently left out because of clerical error.
In Bolton’s case, there was no omitted judicial action. The circuit court had actually awarded 318 days of credit. It had not previously awarded an additional 318 days of good behavior credit.
Because Bolton was asking the court to award something it had never previously granted, a nunc pro tunc order could not provide the requested relief.
The County Jail Good Behavior Allowance Act Did Not Apply
The Fifth District separately addressed Bolton’s underlying argument that section 3 of the County Jail Good Behavior Allowance Act entitled him to an additional 318 days of credit.
Under the current version of 730 ILCS 130/3, a person who commences a sentence of confinement in a county jail for a fixed term may receive a good behavior allowance, subject to statutory exceptions.
The statute currently provides for a one-day good behavior allowance for each day of service of a qualifying sentence in the county jail. It also addresses certain time spent in county jail before sentencing when the person was unable to comply with conditions of pretrial release.
But the statutory language was the problem for Bolton. The Fifth District held that the Act applies to a person who begins a sentence of confinement in a county jail for a fixed term. Bolton was not sentenced to a fixed term in the county jail. He was sentenced to the Illinois Department of Corrections.
Why the Statute Did Not Apply
Pretrial Custody
Bolton’s 318 days in county jail occurred before his sentence began.
Sentence Location
Bolton was sentenced to the Illinois Department of Corrections, not to a fixed term in a county jail.
The appellate court therefore concluded that the plain language of the statute did not authorize the additional credit Bolton sought.
The court also relied on Illinois Supreme Court precedent explaining that the County Jail Good Behavior Allowance Act governs the diminution of sentences for prisoners in county facilities.
Pretrial Credit and Good Behavior Credit Are Not the Same
Illinois law separately provides for credit for time spent in custody before sentencing. Under 730 ILCS 5/5-4.5-100, a defendant generally receives credit on a determinate sentence for the number of days spent in custody because of the offense for which the sentence was imposed, subject to the statutory rules and exceptions.
That ordinary custody credit is different from good behavior allowance. Ordinary pretrial credit accounts for qualifying time already spent in custody. Good behavior allowance is a separate statutory mechanism that can reduce the period of incarceration in circumstances covered by the County Jail Good Behavior Allowance Act.
Two Different Types of Credit
Pretrial Custody Credit
Credit for qualifying days spent in custody before sentencing because of the offense.
Good Behavior Allowance
A separate statutory credit available only when the requirements of the applicable law are satisfied.
In Bolton’s case, the circuit court had already awarded him the 318 days of pretrial custody credit to which the appellate court determined he was entitled.
Does Illinois Still Have Day-for-Day Credit?
Illinois does not have one universal rule under which every person convicted of a felony automatically receives one day of credit for every day served. Sentence-credit rules depend on the offense, the type of sentence, the place and timing of confinement, and the applicable statutory provisions.
The County Jail Good Behavior Allowance Act still exists and provides good behavior credit in qualifying circumstances. But the statute has specific eligibility requirements and exceptions. A person sentenced to the Illinois Department of Corrections cannot necessarily use the Act to obtain additional credit simply because he or she spent time in a county jail before trial.
The applicable credit rules can also differ based on whether a sentence is served in the county jail or IDOC, whether the sentence involves a mandatory minimum, whether the offense falls within one of the statutory exclusions, and whether the requested credit concerns pretrial custody or post-sentencing incarceration.
What People v. Bolton Means for Illinois Criminal Cases
People v. Bolton, 2023 IL App (5th) 230123-U illustrates two important principles of Illinois criminal procedure. First, a nunc pro tunc order cannot be used to award relief that the court did not previously grant. Second, sentence-credit statutes must be applied according to their actual statutory language.
The case also demonstrates why the type of sentence imposed matters when calculating sentence credit. Bolton was serving a prison sentence through the Illinois Department of Corrections, not a fixed county-jail sentence. As a result, section 3 of the County Jail Good Behavior Allowance Act did not apply to his circumstances.
Anyone challenging the calculation of a criminal sentence or seeking additional credit should have the judgment, sentencing order, custody records, and applicable statutes reviewed together. Small differences in the type of credit being requested can determine which statute applies.
Talk to a Champaign, IL Criminal Defense Attorney Today
Patel Law, PC represents Illinois residents charged with serious crimes and individuals seeking to understand or challenge aspects of their criminal sentences. Call our Champaign criminal defense lawyers at 217-384-1111 to schedule a consultation and discuss your legal options.
Call Patel Law, PC
Learn More About Patel Law, PC
Sources
People v. Bolton, 2023 IL App (5th) 230123-U
Illinois General Assembly: 730 ILCS 130/3 — County Jail Good Behavior Allowance Act
Illinois General Assembly: 730 ILCS 5/5-4.5-100 — Calculation of Term of Imprisonment and Custody Credit
Illinois General Assembly: 720 ILCS 5/18-2 — Armed Robbery
Illinois General Assembly: 720 ILCS 5/24-1.1 — Unlawful Use or Possession of Weapons by Felons
