APPEAL from the Circuit Court of Cook County; the Hon. JAMES
STRUNCK, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant Roger Rangel was charged with burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) and convicted of attempt burglary (see Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a)) after trial by jury. The trial court imposed a sentence of two years imprisonment with credit for the time which defendant spent in jail and in the custody of the Department of Mental Health (DMH) pending trial.
Defendant's appeal presents two issues:
First, whether there was a bona fide doubt about his fitness to stand trial because he had been adjudicated unfit two years before he was placed on trial and there was no subsequent fitness hearing.
Second, whether it was improper to instruct the jury on the offense of attempt burglary when all the evidence proved that he entered the complainants' house without authority, and the only dispute was whether he acted innocently or with the criminal intent which is a prerequisite of burglary.
Pertinent to this appeal is the following evidence:
Delores Beskoon was playing cards with her daughter in the front room of their house around midnight on July 20, 1976, when, responding to the barking of the family dog, Mrs. Beskoon found defendant crouching in the corner of her daughter's bedroom. Screaming, she ran out of the house with her daughter. Her husband Donald woke up and saw defendant walk out of the bedroom and out of the house. No property was taken or disturbed, and there was no damage to the house nor any sign of forced entry. The police officer who arrested defendant several blocks away confirmed that defendant had been drinking.
Defendant was indicted for burglary, and his attorney filed a petition alleging that defendant was not fit to stand trial.
Responding to a court order, Dr. Frank Lorimer, a staff psychiatrist at the Psychiatric Institute of the Circuit Court of Cook County, filed a report which concluded that defendant could not "adequately" co-operate with his attorney "because of his impulsive and threatening suicidal behavior." Hospitalization was recommended because of the danger that defendant would harm himself or others.
On March 8, 1977, following a hearing at which the only evidence was presented by stipulation, the court found defendant unfit to stand trial, and he was committed to the custody of the Department of Mental Health. On November 8, 1977, after treatment at the Chester Mental Health facility, defendant was discharged by DMH as no longer in need of mental treatment.
Pursuant to the trial court's order, defendant was again examined by the Psychiatric Institute of the Circuit Court, and Dr. Lorimer filed a report in which he concluded that defendant had become fit to stand trial. The prosecution then petitioned for a fitness hearing, but the record does not indicate that a hearing was had or a ruling made on this request.
Eventually, this case was assigned to the calendar of another trial judge, and trial by jury commenced on April 9, 1979 two years after defendant was adjudicated unfit to stand trial. The record does not show that the new trial judge was informed of the prior adjudication of unfitness, or that the judge either observed or was notified of anything that would have raised a bona fide doubt about defendant's fitness.
At trial, defendant testified that he was a chronic alcoholic and, because of a drunken stupor, he mistakenly entered the Beskoon house believing that he was entering his own house and going into his own bedroom. He further testified that when he heard screams and realized his mistake, he mumbled an apology and walked out.
Over objection, the court gave instructions for both burglary and attempt burglary. The jury returned a verdict of guilty of attempt burglary, and wrote on the verdict form: "We recommend leniency and ...