Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County, the Hon. Robert L. Gagen, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
The issue here is whether the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1001-1-1 et seq.) granted defendant a statutory right to request a jury at the hearing to re-examine his fitness to stand trial. The hearing in question was held prior to defendant's second trial.
Defendant, Christopher Manning, was indicted for armed robbery, was adjudged fit to stand trial, and was convicted of the offense charged following a jury trial in the circuit court of St. Clair County. After conviction, defendant requested and was given another fitness hearing; based on the psychiatric testimony presented, the trial court vacated the verdict and declared defendant incompetent to stand trial. (See People v. Murphy (1978), 72 Ill.2d 421, 430; People v. Speck (1968), 41 Ill.2d 177, 206; People v. Barkan (1970), 45 Ill.2d 261, 263.) Defendant was further found to be in need of medical treatment and was committed to the Department of Mental Health. While defendant was in the custody of the Department, a hearing was held pursuant to the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 1-1 et seq.) at which it was determined that defendant was not in need of treatment. Defendant was ordered released to the sheriff of St. Clair County to be held for further proceedings.
Prior to his second trial, defendant's counsel moved for a jury hearing on the question of defendant's fitness to stand trial. The trial court denied defendant's request for a jury and, following a hearing, adjudged defendant fit to stand trial. Defendant was again convicted of armed robbery by a jury and was sentenced to a term of 5 to 15 years' imprisonment. The appellate court reversed on the grounds that defendant had a statutory right to a jury determination of his restoration to fitness and remanded for a new trial. (61 Ill. App.3d 558.) We allowed the State's petition for leave to appeal.
We hold that defendant had no statutory right to request a jury at the hearing to re-examine his fitness to stand trial. This conclusion is mandated by the language of section 5-2-2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2(b)) which provides for hearings to re-examine findings of unfitness but makes no provision for juries at such hearings. Our conclusion is supported further by an examination of all the other statutory provisions applicable to fitness determinations, by the council commentary to section 5-2-2(b), by an analysis of the predecessor statute to section 5-2-2(b), and by the cases interpreting that prior statute.
Any right the defendant argues he has to a jury at the hearing to re-examine his fitness to stand trial must find its source in the statute, since there is no constitutional right to a jury at such proceedings (People v. Brown (1969), 43 Ill.2d 79, 81; People v. Shadowens (1969), 44 Ill.2d 70, 72). In determining whether the legislature intended to confer such a right, the primary source to be examined is the statutory language. People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 369.
Section 5-2-2(b) sets forth the procedure for judicial reexamination of a defendant's fitness to stand trial. It provides:
"A defendant hospitalized under this Section shall be returned to the court not more than 90 days after the court's original finding of unfitness, and each 12 months thereafter. At such re-examination the court may proceed, find, and order as in the first instance under paragraph (a) of this Section. If the court finds that defendant continues to be unfit to stand trial or be sentenced but that he no longer requires hospitalization, the defendant shall be released under paragraph (a) of this Section on bail or recognizance. Either the State or the defendant may at any time petition the court for review of the defendant's fitness." (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2(b).)
That section makes no direct provision for juries at fitness reexamination hearings and, unlike the section it replaced (Ill. Rev. Stat. 1963, ch. 38, par. 104-3(c)), makes no cross-reference to the section which sets forth the circumstances under which a defendant may request a jury at his initial fitness hearing (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(d)).
Section 5-2-2(b) does refer to section 5-2-2(a), which provides that once a defendant has been found unfit to stand trial, procedures under the Mental Health Code of 1967 apply. However, as the appellate court correctly noted, the Mental Health Code of 1967 deals with findings of need for mental treatment and the need for hospitalization (Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 9-2, 10-3) and has no bearing upon determinations or redeterminations of fitness to stand trial. That code comes into play only after the defendant has been found unfit and never applies if the defendant is found fit. It therefore can provide no basis for a conclusion that defendant was entitled to request a jury at his fitness reexamination hearing.
The council commentary is also a proper source for this court to consult in ascertaining the legislative intent (People ex rel. Morrison v. Sielaff (1974), 58 Ill.2d 91, 93; People ex rel. Suddeth v. Rednour (1965), 33 Ill.2d 278, 283), and an examination of the statements it contains confirms our conclusion that section 5-2-2(b) confers upon defendants no right to request a jury at their fitness reexamination hearings. The council commentary to section 5-2-2(b) states that "[s]ubsequent re-examination hearings were intended to be heard by the court without a jury even if the original determination of unfitness was made by a jury." (Ill. Ann. Stat., ch. 38, par. 1005-2-2, Council Commentary, at 258-59 (Smith-Hurd 1973).) This indicates that the statutory omission of a reference to a right to request a jury at reexamination hearings was intentional and was meant to prohibit the impaneling of a jury at such hearings.
When a statute is repealed and a replacement statute is adopted, the effect is to completely obliterate the prior statute, and whatever is embraced in the new statute prevails, while whatever is excluded is to be discarded. (People ex rel. Suddeth v. Rednour (1965), 33 Ill.2d 278, 284.) Bearing these precepts in mind, we have examined the predecessor statute to sections 5-2-1 and 5-2-2, which the Unified Code of Corrections repealed, effective January 1, 1973 (Ill. Rev. Stat. 1975, ch. 38, pars. 1008-5-1, 1008-6-1), and have examined the cases interpreting the prior statute. We find that they further support our conclusion that under the current statute defendant had no right to request a jury at his fitness reexamination hearing.
The prior statute, section 104-3(c) of the Code of Criminal Procedure of 1963, provided that when reasonable grounds existed to believe that an incompetent had regained his competence, the court was to determine the person's present mental condition in a hearing conducted "in accordance with this Article." (Ill. Rev. Stat. 1963, ch. 38, par. 104-3(c).) After examining the applicable statutory provisions in their entirety and especially the direction that reexamination hearings be held "in accordance with this Article," this court held that the statute conferred upon defendants the same right to elect to have a jury decide the issue of their restoration to fitness as they had to elect a jury at their initial fitness hearing. ...