Appeal from the Circuit Court of Cook County; the Hon. James
Heyda, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Underwood, who had been charged by information with burglary, was adjudicated unfit to stand trial and committed to the Department of Mental Health and Developmental Disabilities (Department) on June 21, 1979. His adjudication of incompetence tolled the running of the speedy-trial statute (Ill. Rev. Stat. 1979, ch. 38, par. 103-5). The question raised by this appeal is whether the tolling ended and the running of time under the speedy-trial provisions recommenced when the State failed to accord the defendant a fitness hearing required by section 104-28(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104-28(b)).
Sections 104-27 and 104-28 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 104-27, 104-28) became effective on December 28, 1979, and they provide a system for review of the condition of persons who, like the defendant, had been found unfit prior to that date. Section 104-27(a) provides:
"Within 180 days after the effective date of this Article, the Department of Mental Health and Developmental Disabilities shall compile a report on each defendant under its custody who was found unfit or incompetent to stand trial * * * prior to the effective date of this Article. * * *"
Section 104-27(b) provides:
"The reports shall be forwarded to the Administrative Office of the Illinois Courts which shall distribute copies thereof to the chief judge of the court in which the criminal charges were originally filed, to the state's attorney and the public defender of the same county, and to the defendant's attorney of record, if any. * * *"
Section 104-28(b) provides:
"[T]he court shall conduct a hearing pursuant to Section 104-20 forthwith to redetermine the issue of the defendant's fitness to stand trial or to plead."
Following the June 21, 1979, finding of unfitness and commitment to the Department, defendant remained in the Department's custody until April 1, 1981, when he was brought before the trial court on his motion to dismiss for failure to comply with the speedy trial provisions of section 103-5. It is undisputed that defendant was not given the hearing required by section 104-28. On April 1, 1981, the trial court found that defendant remained unfit to stand trial, and subsequently it granted his motion to dismiss. The State appeals this ruling.
Defendant argues that the 180-day report required by section 104-27(a) was due to be completed no later than June 28, 1980, and that the hearing required by section 104-28 should have taken place "forthwith" in late June or July of 1980. *fn1 Since parties agree that the evidence before the trial court established that during the period between June 21, 1979, and April 1, 1981, defendant remained continuously unfit to stand trial, it is undisputed that had a timely review hearing been held defendant would have been found still unfit more than one year after the original finding of unfitness. Therefore, defendant argues that under the express terms of section 104-28, he would be subject to section 104-23 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-23), which provided in pertinent part:
"* * * if at the end of one year from that date (the date of the original finding of unfitness) the court finds the defendant still unfit * * * the speedy trial provisions of Section 103-5 shall commence to run * * *." *fn2
Thus, according to defendant, the 120-day term of section 103-5(a) began to run when the fitness hearing should have been held and had expired well before April 1, 1981, when the trial court first considered defendant's motion to dismiss. The State, to the contrary, contends that the speedy-trial provisions did not commence to run until April 1, 1981, when the trial court in fact had a fitness hearing and found that defendant remained unfit to stand trial. Defendant does not dispute the State's contention that if the speedy-trial provisions commenced to run on that date, there had been no violation of defendant's statutory right to a speedy trial.
Thus, the dispositive question is when did the speedy-trial provisions of section 103-5 commence to run. If they did not commence until April 1, 1981, there was no violation of defendant's statutory right to a speedy trial. If they commenced during the summer of 1980, defendant ...