APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
These consolidated appeals concern defendant, James Ealy, who was found unfit to stand trial on a robbery charge (Ill. Rev. Stat. 1975, ch. 38, pars. 1005-2-1, 18-1), yet not "in need of mental treatment" as that phrase is defined in the Mental Health Code (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 1-11). In case number 76-807 defendant appeals from the amount of bail set at an amount which virtually precludes his release. The trial court first denied motions to release defendant on bail or recognizance and later set bail at $50,000. In case number 76-1045 the Department of Mental Health and Developmental Disabilities (hereinafter "Department") appeals from the trial court's order denying its motion to vacate, alter or amend that portion of the court's previous order requiring the Department to hospitalize defendant pending his appeal. The State has also filed a motion to dismiss the Department's appeal for asserted lack of jurisdiction. *fn1
Stated simply, the defendant finds himself between the Scylla of being found mentally unfit to stand trial and the Charybdis of being not in need of mental treatment. The issues raised for our review include the following: (1) whether a defendant found unfit to stand trial and not "in need of mental treatment" within the meaning of the Mental Health Code is entitled to release from custody; (2) whether the bail set in this case is excessive; (3) whether a defendant found unfit to stand trial and unlikely to become fit in the foreseeable future, must be released from custody; (4) whether an order transferring a defendant from custody of the Department of Corrections to the Department of Mental Health is final and appealable; and (5) whether a trial court has the authority to order the Department of Mental Health to hold an individual pending his appeal where he has been adjudicated not "in need of mental treatment."
Defendant was arrested on a robbery charge on February 22, 1975, and released on a recognizance bond. Thereafter he was given a psychiatric examination to determine his fitness to stand trial. Following an examination at the Psychiatric Institute of the Cook County Courts>, the defendant's hearing for fitness to stand trial was scheduled for August 8, 1975. Defendant failed to appear on that date and a bond forfeiture and warrant were issued. When defendant appeared on August 14, the bond forfeiture was vacated and the warrant quashed.
On August 14, 1975, a jury, sitting in the criminal division of the circuit court of Cook County, returned a verdict that defendant was not competent to stand trial. Defendant was then ordered transferred to the Department for a determination of whether defendant met the criteria for civil commitment. A hearing was held before the Honorable Lawrence I. Genesen, sitting in the county division of the circuit court of Cook County, on September 17, 1975, and defendant was found not in need of mental treatment. Thereafter, the Department filed a petition in the criminal proceeding for defendant's release on bail or recognizance. Instead, defendant's motion for a second psychiatric examination to determine his fitness to stand trial was allowed. Dr. Lorimer of the Psychiatric Institute examined defendant and again found him unfit to stand trial. Based on that testimony the court, by the Honorable Kenneth Wendt, in the criminal division, on December 22, 1975, ordered defendant transferred to the Department for a second commitment hearing. On January 6, 1976, Judge Genesen again found defendant not in need of mental treatment and the Department petitioned in the criminal proceeding, for the second time, for defendant's release. A hearing was thereafter held before Judge Wendt to again determine defendant's fitness to stand trial.
Dr. Basil Siomopoulos, a psychiatrist for the Department, testified on behalf of defendant that he found no evidence of delusions or active psychosis. Although not schizophrenic, defendant was characterized as possessing a paranoid personality. Further, Siomopoulos testified that defendant was not dangerous and that he had no need for medication or treatment. Dr. Lorimer testified on behalf of the State that defendant was schizophrenic, paranoid, chronic, and that he behaved in an irrational manner. Relying on a 1971 report by a Dr. Stern (an associate of Dr. Lorimer at the Psychiatric Institute of the Cook County Courts>), and a 1975 report by a Dr. Goldsmith (an associate of Dr. Siomopoulos of the Illinois State Psychiatric Institute), Lorimer expressed the opinion that defendant was potentially dangerous. The record also indicates, however, that Dr. Goldsmith submitted a later report stating that defendant was not dangerous. Dr. Lorimer explained that while defendant was not always potentially dangerous, he might be if placed in a stressful situation. At any rate, Lorimer stated, in response to a question of the court, that he would not accept the responsibility for releasing defendant.
At the completion of the hearing, the trial court set defendant's bond at $50,000, based upon the court's belief that defendant is a hazard to society and he should be detained until medical personnel do "something" for him. Further, the judge observed that when one doctor says a man is dangerous and another doctor says he is not, the court will believe the doctor who says the man is dangerous. Lastly, the court noted that being fit to stand trial is a separate, different matter from being dangerous to self and community.
On January 30, 1976, defendant requested another psychiatric examination to determine whether he would ever become fit to stand trial. Thereafter Dr. Lorimer again examined defendant and then, at a hearing on May 18, 1976, before Judge Wendt, testified that defendant would not become competent to stand trial in the foreseeable future. Lorimer emphasized that after five examinations his diagnosis remained consistent: schizophrenic, paranoid, chronic. Since the doctor thought it unlikely that defendant would be competent to stand trial in the foreseeable future, defendant's counsel moved to have the charge of robbery dismissed and defendant released from custody. In denying the motion, Judge Wendt said he had to safeguard the six million people in the surrounding community. After the motion was denied, the trial court, on June 24, 1976, issued an order that defendant be transported to the Department and hospitalized during the pendency of his appeal.
On July 1, 1976, the Department filed a motion to vacate, alter or amend Judge Wendt's order which required the Department to hospitalize defendant pending his appeal. The Department argued that the order was in excess of the court's authority and void ab initio. The motion was denied.
Defendant now appeals from the denial of his motion for release. The Department appeals from the denial of its motion to vacate, alter or amend the order requiring its hospitalization of defendant. The state has filed a motion to dismiss the Department's appeal.
• 1 At the outset we note that the legislature has created this perplexing dilemma. Section 5-2-1 of the Unified Code of Corrections provides that a defendant (in a criminal proceeding) is unfit to stand trial when he is unable to understand the nature and purpose of the proceedings against him or is unable to assist in his defense. *fn2 An unfit defendant is remanded to a hospital of the Department for a determination of his need for mental treatment and a proper disposition pursuant to the MHC. *fn3 Section 1-11 of that Code defines the phrase, "person in need of mental treatment." *fn4 In essence, once a defendant is found unfit to stand trial, he is remanded to the Department to determine if he should be civilly committed as a person in need of mental treatment. We assume that in most cases an unfit defendant meets the statutory criteria for hospitalization. As the case at bar demonstrates, however, a person charged with a felony may be found unfit to stand trial, but not sufficiently in need of mental treatment under current standards to be committed. *fn5 This case places the searchlight on an unfortunate problem and cries out for prompt and clear legislative action. *fn6
The problem is further compounded by the present circuit court organization. In Cook County, the circuit court is divided into divisions and departments. *fn7 This is to assist in the many administrative problems in such a large court system. However, each of the judges sitting in any division has concurrent constitutional authority. But in a case such as this, a judge in the criminal division and a different judge in the county division could be considering this related problem. In the interest of proper court administration, and keeping in mind the interests of the defendant, we suggest that the judge in the criminal division should also hear the proceeding involving the MHC. We find no constitutional or statutory objection to such procedure.
Initially, Judge Wendt, pursuant to section 5-2-1, had to determine if defendant could understand the nature and purpose of the proceedings and assist in his own defense (People v. Salvaggio (1st Dist. 1976), 38 Ill. App.3d 482, 487, 348 N.E.2d 243; People v. Johnson (1st Dist. 1976), 36 Ill. App.3d 871, 875, 344 N.E.2d 602; People v. Fontaine (5th Dist. 1975), 28 Ill. App.3d 450, 453, 328 N.E.2d 685; People v. Mitchell (1st Dist. 1974), 19 Ill. App.3d 197, 199, 311 N.E.2d 223), because trial of an unfit defendant is a denial of due process (People v. Burson (1957), 11 Ill.2d 360, ...