Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County;
the Hon. Thomas W. Vinson, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
The circuit court of Will County found defendant guilty of unlawful possession of over 30 grams of heroin (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402(a)(1)). She was sentenced to a term of three to six years in the women's reformatory. The Third District Appellate Court reversed defendant's conviction (33 Ill. App.3d 451), and this court granted leave to appeal.
Defendant was arrested on August 3, 1972, when, pursuant to warrant, her home was searched and a quantity of heroin seized. She was later indicted for possession with intent to deliver. Prior to trial, defendant moved to quash the warrant and suppress the evidence seized, and petitioned the court that, in lieu of prosecution, she be treated as a narcotic addict. The court denied defendant's motion and her petition. During the course of trial, which commenced February 20, 1973, defendant's attorney requested that the court conduct a hearing to determine defendant's fitness to proceed inasmuch as she was falling asleep in court and therefore was unable to assist in the defense of her case. Trial was halted and a prehearing conference held. At the conference, the trial court ruled that the burden of proving fitness to stand trial was governed by section 5-2-1 of the Unified Code of Corrections, which became effective January 1, 1973. This section placed on the defendant the ultimate burden of proving unfitness to stand trial when, as here, the defendant has raised that issue. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1(i).) A jury was empanelled and a fitness hearing held. Evidence indicated that defendant was receiving methadone treatments for heroin addiction, and that such treatments were affecting her physical and mental state. The jury, instructed that the burden was upon defendant to prove herself unfit, found defendant fit, and trial on the criminal charge was resumed. The defendant was subsequently found not guilty of possession with intent to deliver, but guilty of the lesser included offense of possessing over 30 grams of heroin.
The appellate court reversed defendant's conviction, holding that the saving provision of section 8-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1008-2-4) made section 5-2-1(i) inapplicable to defendant's fitness hearing. It found that prior to the enactment of section 5-2-1(i) the State, rather than the defendant, had the ultimate burden of proving fitness to stand trial, regardless of which party raised the issue. On that basis, it ruled that the trial court had committed reversible error by instructing the jury to the contrary.
The State argues that the trial court's ruling was correct in that the fitness hearing was commenced after the effective date of the Code, and, because the burden of proof is a procedural matter, the defendant was not entitled to have the former burden of proof standards applied.
Defendant counters that she acquired an accrued right to be governed by the prior law, and that such right could not have been divested by the enactment of the Code. She also asserts that if section 5-2-1(i) is applicable, it is unconstitutional in that it is a denial of due process to place upon her the burden of proving her own unfitness to stand trial. By way of cross-appeal, the defendant raises three alleged errors with respect to the issuance and execution of the search warrant, and also challenges the validity of the Dangerous Drug Abuse Act as it applies to her.
Discussion of the Code's applicability to cases pending on its effective date must begin with an analysis of certain of the Code's saving provisions. (Ill. Rev. Stat. 1973, ch. 38, pars. 1008-2-1 and 1008-2-4.) Section 8-2-1 provides:
"The repeal of Acts or parts of Acts enumerated in Section 8-5-1 [which includes proceedings to determine competency] does not: (1) affect any * * * prosecution pending * * * or rights * * * accrued under any law in effect immediately prior to the effective date of this Code * * *."
Similarly, section 8-2-4 provides:
"Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act."
Prosecution is defined as "all legal proceedings by which a person's liability for an offense is determined." (Ill. Rev. Stat. 1971, ch. 38, par. 2-16; People v. Chupich (1973), 53 Ill.2d 572, 583.) The sole purpose of a fitness hearing, however, is to determine whether the accused is fit to proceed to trial on the issue of guilt or innocence. (People v. Redlich (1949), 402 Ill. 270, 276.) It is not a part of the trial on the criminal charge. (People v. Rosochacki (1969), 41 Ill.2d 483, 489-90; People v. Bender (1960), 20 Ill.2d 45, 53; People v. Cornelius (1946), 392 Ill. 599, 601.) Thus, a fitness hearing is not a part of the legal proceedings by which the accused's liability for an offense is determined.
Defendant argues that she acquired an "accrued right" to be governed by the burden of proof standards as they existed prior to January 1, 1973. Overlooked is the fact that prior to this date the legislature never addressed the subject. Case law determined the burden of proof standards in fitness hearings, and since there can be no "accrued right" in any court decision defendant's argument must fail. Further, any rights relating to the procedural aspects of her fitness hearing originate only after she became entitled to such a hearing. A defendant is not entitled to a fitness hearing until the trial court has notice of facts raising a bona fide doubt as to her fitness to stand trial. (People v. Shrake (1962), 25 Ill.2d 141, 143; People v. Burson (1957), 11 Ill.2d 360, 370.) Since the facts giving rise to defendant's fitness hearing were not presented until February 1973, no rights in the procedural aspects of the hearing could have accrued prior to the Code's effective date. Consequently, the saving provisions of the Code required that defendant's fitness hearing be governed by section 5-2-1(i). We find, therefore, that the appellate court erred in ruling the Code inapplicable.
Defendant argues, however, that it is a denial of due process to impose upon her the burden of proving her own unfitness. Prior to the enactment of section 5-2-1(i), this court consistently held that once evidence indicating unfitness was brought by the defense, the burden devolved upon the State to establish by a preponderance of the evidence that defendant was fit to stand trial. (People v. Thompson (1967), 36 Ill.2d 332, 334-35; People v. McKinstray (1964), 30 Ill.2d 611, 616-17; People v. Bedford (1964), 31 Ill.2d 227, 228-29; People v. Bender (1960), 20 Ill.2d 45, 53-54.) This court has held that erroneous instructions with regard to the allocation of the burden of proof ...