APPEAL from the Circuit Court of Randolph County; the Hon.
FRANCIS E. MAXWELL, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The State appeals from the circuit court of Randolph County's dismissal of a murder indictment against the defendant, Sidney Bickham, for want of prosecution under section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, 103-5).
This case involves a complex factual situation; this is the second time it has come before us on appeal. The defendant was at all times a prison inmate. He was charged with murder after taking a knife from the inmates' kitchen, walking into the prisoners' dining room, and attacking three prison inmates, killing one of them and seriously wounding the other two.
In the first proceedings, defendant plead guilty to the murder. Certain aspects of the defendant's behavior seemed irrational at the time of trial. Despite requests from the defendant's attorney that an inquiry be conducted to determine whether the defendant was sane, the court refused to order the defendant examined.
The issue of the propriety of the court's failure to order a fitness investigation was presented to this court in People v. Bickham, 13 Ill. App.3d 857, 301 N.E.2d 172. This court ruled that the trial court erred in not ordering a sanity hearing. The judgment was reversed, and the cause was remanded with directions that the plea be stricken and that further proceedings be had consistent with the opinion. From that finding, the People filed a petition in the Illinois Supreme Court for leave to appeal. The petition was denied on February 22, 1974.
At all times mentioned, the defendant was in custody in the State prison at Menard under sentence for another crime.
A writ of habeas corpus ad prosequendum was filed by the People, and an order entered on March 14, 1974. On April 2, 1974 (39th day) Edward Fisher was appointed to represent the defendant. Defendant's attorney visited the defendant several times after that appointment at the prison. Based on the interviews, the attorney for defendant decided that defendant would not require a hearing to determine the defendant's fitness to stand trial. This was communicated to the People, and on May 30, 1974, the People moved for the appointment of qualified experts to examine the defendant and for a hearing to determine his competency. (May 30 was the 97th day since the February 22, 1974, order of denial of leave to appeal.)
The motion was granted on June 10, 1974 (108th day). The defendant refused to be examined by an expert appointed by the court without further consultation with his lawyer.
On October 11, 1974, the defendant moved that he be discharged for failure to prosecute within the 120-day limit set by section 103-5(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(d)).
The argument of the defendant was that the "Motion for Fitness Hearing and Appointment of Qualified Expert" filed by the People ostensibly under section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1) was made for purposes of delay only, and did not present a bona fide doubt as to the defendant's fitness, and that the delay resulting from the State's action was both arbitrary and capricious.
The trial court agreed with the defendant's position, and ordered the indictment dismissed for failure to prosecute in a timely fashion. The People have appealed that decision, and argued that the trial court abused its discretion. We agree with the appellant.
Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5) provides as follows:
"(a) 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 an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal.
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance."
Section 104-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, par. 104-2) was repealed by Public Act 77-2097, effective January 1, 1973. It was replaced by section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1). It is clear that the intent of the legislature was that proceedings under section 5-2-1 (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1) would operate to toll the running of the statutory period of section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(a)) even though the legislature did not amend that paragraph to reflect the repeal of section ...