finding that the defendant possessed the requisite knowledge that the firearm at issue was in the vehicle where the testimony of law enforcement officials established that the defendant was in close proximity to the firearm and made movements consistent with efforts to conceal the weapon even though the remaining two factors were not applicable
How later courts described this case
- finding that the defendant possessed the requisite knowledge that the firearm at issue was in the vehicle where the testimony of law enforcement officials established that the defendant was in close proximity to the firearm and made movements consistent with efforts to conceal the weapon even though the remaining two factors were not applicable
- finding sufficient evidence of possession where the defendant looked like he was concealing a weapon while police were in pursuit and a weapon was recovered in an area he ran past
- noting that the defendant was “the sole occupant of a small car” and that “[t]he gun was visible to the police officers once the car stopped”
- affirming the defendant’s conviction where defendant was sole occupant and driver of the vehicle, committed furtive movements, and the handle of the firearm was visible
Written by the judges who cited it.
The opinion
JUSTICE O’BRIEN, concurring in part and dissenting in part:
I respectfully dissent from the majority’s holding that it was not ineffective assistance of counsel when Nesbit’s attorney failed to surrender his bond in order to obtain presentence incarceration credit for him in the event he was found guilty following trial or even if he had ultimately decided to enter a plea of guilty.
The right to receive presentence incarceration credit is automatic provided that the defendant surrenders his bond. People v. Hatchett, 203 Ill. App. 3d 989, 991 , 560 N.E.2d 1347, 1348 (1990) (trial court erred in denying without reason defendant’s motion to withdraw his bond). Had his attorney surrendered his bond, Nesbit would have been in simultaneous custody and received credit for the time after his re-arrest. People v. Arnhold, 115 Ill. 2d 379, 383 , 504 N.E.2d 100, 101 (1987) (defendant who is out on bond and arrested and returned to custody on a separate charge is not returned to custody on the initial charge until his bond is revoked); People v. Robinson, 172 Ill. 2d 452, 459 , 667 N.E.2d 1305, 1308 (1996) (defendant entitled to credit for time in simultaneous custody on different charges).
The attorney for the defendant has the responsibility for zealously representing his client, which includes procedural, tactical, and technical aspects of a defendant’s defense. While it may have been an oversight on the part of defense counsel in the instant case, the oversight was procedural in nature and caused Nesbit a further loss of liberty occasioned by his attorney’s mistake. In my opinion, such a failure to act on behalf of the defendant, when to do so would have reaped an automatic benefit, was ineffective assistance of counsel pursuant to Strickland.
I further believe the proper remedy is to remand this matter to the trial court to determine the proper number of credit days to which Nesbit is entitled. I believe under the instant facts, the record is sufficient to support Nesbit’s claim of ineffective assistance; the only issue unresolved is the number of days for which Nesbit should receive credit for presentence incarceration. People v. DuPree, 353 Ill. App. 3d 1037, 1049 , 820 N.E.2d 560, 570 (2004) (cause remanded to amend the mittimus to reflect additional in-custody credit where defense counsel failed to surrender defendant’s bond after his re-arrest). On remand, Nesbit should be given credit for the additional time he spent in custody after his re-arrest.
I concur in the majority opinion in all other respects.