Appeal from the Circuit Court of Cook County; the Hon. HARRY
STARK, Judge, presiding. Judgment affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
The defendant was charged with the crime of murder and was found guilty by a jury verdict on December 12, 1966. The sentence was fixed by the jury as a term of 30 years' imprisonment. This conviction was the result of a retrial after a previous conviction of the defendant was remanded for a new trial by a decision of the United States Supreme Court in Pate v. Robinson, 383 U.S. 375 (1966). In that decision, the United States Supreme Court held that the defendant had been deprived of due process of law because at the defendant's previous trial on the same murder charge the trial court refused to conduct a sanity hearing to adjudge his competence to stand trial. The case was remanded for a new trial within a reasonable time. The matter was reinstated and a new trial was held, from which defendant now appeals.
This case was reinstated by order of court on April 21, 1966. On that date, the trial court ordered that the defendant be examined by the Cook County Behavior Clinic. Defendant was then represented by counsel who objected to this examination. The objection was overruled and the case was continued to May 5, 1966. The Behavior Clinic report, filed on May 5, concluded that the accused understood the nature of the charge and was capable of cooperating with his counsel. Defense counsel then presented a motion for a psychiatric examination of the defendant and the case was continued to May 12, 1966. This motion was granted on May 12 and the case was continued on defense motion to May 27, 1966. On this next date, some discussion was had concerning the psychiatric examination of the defendant; the defendant insisted upon being examined by a psychiatrist connected with the Veteran's Administration; some question was raised as to whether the defendant wished the examination if a psychiatrist with a military background was selected or whether he desired any examination at all. The case was then continued to June 17, 1966 on defense motion. Subsequently, on June 17 and June 23, the cause was continued on the court's motion without any psychiatrist being appointed.
On June 24, 1966, the defendant expressed some disagreement with his counsel and defense counsel's motion to withdraw was granted. The Public Defender was appointed as counsel, to which the defendant objected, having expressed a desire to represent himself and the matter was continued to June 30, 1966 on defense motion. On June 30, 1966, the trial court ordered a hearing to be conducted to determine the defendant's competency to stand trial and the trial court also appointed a psychiatrist to examine the defendant on the court's motion. It was subsequently disclosed that the defendant refused to be examined by a court appointed psychiatrist. The competency hearing was held on August 19, 1966, which resulted in a finding that the defendant was competent to stand trial. There followed a number of continuances on motions of the State and the trial finally commenced on December 6, 1966. Since no question is raised concerning the sufficiency of the evidence, we will not set out the facts which resulted in defendant's conviction.
The first question raised by the defendant concerns the alleged denial of a speedy trial, in violation of Article II, section 9 of the Illinois Constitution and the statutory provision relating to that right. The statutory reference is to Ill Rev Stats, c 38, § 103-5(a) (1965), which provides:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal."
Defendant recognizes that from the date of reinstatement of this case some of the delays were attributable to himself. However, he argues that from the date of June 30, 1966, to the date of trial the 120-day rule had been violated which would necessitate the reversal of his conviction and dismissal of the complaint. The defendant takes issue with the trial court's order of June 30, 1966, where a competency hearing was ordered and a psychiatric examination was set by order of court. Defendant contends "that the trial court clearly abused its discretion in ordering a competency hearing, that the 120-day period . . . was therefore not tolled and that the defendant is entitled to be discharged since he was not brought to trial within 120 days from June 30, 1966."
The State contends that the 120-day rule was tolled when the trial court acted within its discretion in ordering a competency hearing for the defendant. The contention is that once the competency hearing was concluded on August 19, 1966, a new period of 120 days commenced, and that the trial on December 6, 1966, was within this time limit. This contention would dispose of this issue if it is determined that the trial court acted properly in calling for a determination of defendant's competency to stand trial.
The statutory authority for such a hearing is found in Ill Rev Stats, c 38, § 104-2(a) (1965), which provides:
"If before a trial . . . the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant's competency."
This power has been held to rest within the discretion of the trial court. People v. Pridgen, 37 Ill.2d 295, 226 N.E.2d 598 (1967); People v. Bortnyak, 39 Ill.2d 545, 237 N.E.2d 451 (1968); People v. McGuirk, 106 Ill. App.2d 266, 245 N.E.2d 917 (1969). The application of the rule has been expressed in terms of a "bona fide doubt" as to an accused's competency. Thus, in People v. Burks, 80 Ill. App.2d 324, 224 N.E.2d 668 (1967), this court stated at page 327-328:
"If facts which give rise to a bona fide doubt as to a defendant's sanity are brought to the attention of the trial court before or during trial, either from observation of the defendant or suggestion by counsel, the court has a duty to impanel a jury to determine whether the accused is capable of understanding the nature of the charges against him and of cooperating with his counsel."
We are of the opinion that sufficient facts were present in this case to warrant the trial court's order of a competency hearing which tolled the 120-day rule. The defendant has a long history of mental disorders as disclosed by the Behavior Clinic reports and as set forth in the majority opinion ...