The opinion
JUSTICE GARCIA, specially concurring:
I find no answer to whether the day of sentencing must be included in the computation of in-custody credit by the circuit court on the sentencing order in either of the sections addressed by the majority. The majority, and the cases upon which they rely, mistakenly consider the issue raised as one of law rather than fact. As a factual question, it makes no difference which of the two approaches is followed, so long as the approach taken is clearly set out.
The solution to the difference of opinion within the appellate court lies in the clarity with which the in-custody credit is set out in the sentencing order by the circuit court. If the circuit court gives a defendant credit for the day the sentencing order is entered, the same date that the defendant is remanded to the Illinois Department of Corrections, the Department is properly informed that the sentencing date is covered by the in-custody credit given to the defendant. It falls to the Department to ensure that the good-time credit it gives, beginning with the offender’s commitment, does not include the date of sentencing. See 730 ILCS 5/3 — 6—3(2.1) (West 2006).
Of course, if the sentencing order states that the in-custody credit does not include the date of sentencing, then once again the Department should take note. The dispute has little to do with whether the sentencing date must be included in the credit for the days spent in custody by a defendant. See 730 ILCS 5/5 — 4—1(e)(4) (West 2006) (“The clerk of the court shall transmit to the department, agency or institution *** the number of days, if any, which the defendant has been in custody and for which he is entitled to credit against the sentence, which information shall be provided to the clerk by the sheriff”).
Although I conclude that giving credit for any day that starts with a defendant in custody before the sentencing order is entered is the better approach as the defendant remains subject to the circuit court’s authority, in the end it makes no difference. When the circuit court gives a defendant in-custody credit for the date of sentencing, this makes clear that the Department must award the defendant good-time credit for any additional days spent in the county jail after a sentencing order is entered with a stay of mittimus. See People v. Leggans, 140 Ill. App. 3d 268, 270-71 , 488 N.E.2d 614 (1986).
The good-time credit, which decides an offender’s future release date, is determined by the Department. 730 ILCS 5/3 — 6—3(2.1) (West 2006) (“a prisoner *** shall receive one day of good conduct credit for each day of his or her sentence”). If the sentencing order indicates that the credit for time in custody includes the date of sentencing, I am confident that the Department will factor in that credit in deciding the good-time credit to be given a defendant when “the offender is received by the Department or the institution at which the sentence is to be served.” 730 ILCS 5/5 — 8—7(a) (West 2006).
In a case such as this where the credit for time in custody was calculated in error, we need only say the defendant is entitled to 287 days’ credit in custody, which does not include the day sentence was imposed. Or, the better approach as I have indicated, we can say the defendant is entitled to 287 days’ credit, which includes the day sentence was imposed. In either instance, the Department, pursuant to its rules and regulations, will either include or exclude this day’s credit in calculating the good-time credit to be given to the defendant to determine his projected release date. 730 ILCS 5/3 — 6—3(2.1) (West 2006). The sentencing day’s credit will be neither lost nor double-counted. In the end, it really makes no difference whether the credit for that day comes from the circuit court’s sentencing order or from the Department’s calculation of good-time credit.
If the dates covered by the credit given a defendant are clearly set out in the sentencing order, we should spend little time on sentencing credit issues in the future.