Opinion
No. 1-05-1773
March 22, 2007. Opinion Withdrawn by the Court September 24, 2007.
Appeal from the Circuit Court of Cook County. Honorable Dennis A. Dernbach, Judge Presiding.
Defendant, Ralph Ortiz, appeals from the dismissal of his petition for relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (West 2004). Defendant's sole contention on appeal is that the mittimus must be corrected to reflect an additional 54 days of pretrial custody credit. For the following reasons, we dismiss the appeal with directions.
On July 6, 1993, defendant pleaded guilty to one count of first-degree murder and two counts of attempted first-degree murder. The court sentenced him to concurrent terms of 90 years, 30 years, and 30 years in the Illinois Department of Corrections. Defendant did not file a motion seeking to vacate his guilty plea, a motion to reconsider his sentence, or a direct appeal from his conviction.
On March 24, 2001, defendant filed a pro se petition for postconviction relief in which he argued that his extended-term sentence violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The trial court summarily dismissed defendant's petition, and we affirmed the trial court in a summary order, agreeing with the trial court that Apprendi does not apply retroactively to cases on collateral review and noting that Apprendi claims are waived following a guilty plea. People v. Ortiz, No. 1-01-2591 (2002) (unpublished order under Supreme Court Rule 23).
On September 30, 2004, defendant filed a pro se petition under section 2-1401 of the Code, alleging that certain United States Supreme Court rulings establish that he did not waive his rights under Apprendi, and that the factual determination that his offense was committed against a person over the age of 60 was never charged in the indictment. Defendant did not raise any issue concerning his mittimus. The trial court granted the State's motion to dismiss defendant's petition as untimely and held that, in light of People v. Jackson, 199 Ill. 2d 286, 295 (2002), defendant's guilty plea waived any Apprendi claims. This appeal follows.
Although defendant appeals the dismissal of his section 2-1401 petition, his sole contention on appeal is that he is entitled to an additional 54 days of presentence custody credit. The State concedes that defendant is entitled to the additional days of credit, but argues that defendant has waived the issue because (1) it was not included in his original postconviction petition and (2) it is not cognizable under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2004)).
It is well established that the trial court retains jurisdiction, despite the filing of a notice of appeal, to correct nonsubstantial matters "such as the amendment of the mittimus." Baker v. Department of Corrections, 106 Ill. 2d 100, 106 (1985), followed by People v. White, 357 Ill. App. 3d 1070, 1073 (2005) (in a case where the trial court denied defendant's request to amend the mittimus to reflect additional credit for presentence incarceration, the appellate court had jurisdiction to consider the appeal).
Defendant cites White and People v. Andrews, 365 Ill. App. 3d 696 (2006), where the Third District chose to address a case where the only issue on appeal was whether the defendant should receive one additional day of credit for time spent in custody prior to sentencing. In granting the additional one day of credit over a strong dissent from Justice Schmidt, the Andrews majority relied on their decision in White and the decision in People v. Wren, 223 Ill. App. 3d 722 (1992), which held:
"A sentence credit issue of this type is not appropriately considered in an appeal from the dismissal of a post-conviction petition which did not raise the issue, but instead should be raised by filing a motion to amend mittimus in the trial court. However, `in the interests of an orderly administration of justice' [citation], we will treat defendant's request as a motion to amend mittimus and consider
it because an amended mittimus may be issued at any time." Wren, 223 Ill. App. 3d at 731.
It is well settled that where the only issue raised in the appellate court is whether a defendant is entitled to credit for time spent in custody prior to sentencing, and the parties do not agree as to the amount of credit, the proper procedure is to remand the matter to the trial court to make the determination. People v. Miles, 117 Ill. App. 3d 257, 260 (1983).
Similarly, in cases similar to the instant one, where the parties agree as to the amount of credit due, it is "in the interests of an orderly administration of justice" to bring this issue to the attention of the trial court in a motion to amend mittimus.
In addition, although there are no reported decisions in Illinois, we agree with other jurisdictions holding that this court has the inherent authority to manage its docket in order to ensure the orderly administration of justice. See Pillay v. Immigration Naturalization Service, 45 F.3d 14, 17 (2d Cir. 1995) ("appellate courts certainly have the inherent authority to allocate scarce judicial resources among the petitions and appeals that press for their attention, and such allocations become especially necessary in this era of burgeoning appellate dockets"); People v. Nickerson, 128 Cal. App. 4th 33, 39, 26 Cal. Rptr. 3d 563, 566 (2005) (holding that the appellate court, pursuant to, inter alia, its inherent power to control its docket, may order a case transferred back to the superior court appellate division).
In light of the trial court's continuing jurisdiction over this "nonsubstantial matter" and this court's inherent power to manage its docket, we direct the State Appellate Defender to first file a motion to correct the mittimus in the trial court in cases where, as here, that is the sole issue on appeal. Use of this procedure in the future will similarly advance the "public interest in the efficient administration of justice." See People v. Smith, 188 Ill. 2d 335, 349 (1999). On January 26, 2007, the State Appellate Defender informed this court that their office had a backlog of 1,491 unbriefed cases. The effort expended in ordering reports of proceedings and writing briefs in cases in which the sole issue on appeal is to correct the mittimus would be much better allocated to the backlog of cases involving substantial matters. Of course, the procedure of filing motions to correct a defendant's mittimus in the circuit court will only relieve the backlog in the appellate court if the State waives any procedural issue in the circuit court.
Accordingly, we dismiss the appeal and direct the State Appellate Defender to file a motion in the trial court to correct the mittimus.
Appeal dismissed with directions.
CAMPBELL and MURPHY, JJ., concur.