Appeal from the Circuit Court of Du Page County, the Hon.
Bruce Fawell, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
This direct appeal from a judgment of the circuit court of Du Page County was brought by the defendant, Randy Rink, under Rule 603 (73 Ill.2d R. 603). The circuit court held section 104-28(a) of "An Act to add Sections * * * 104-10 through 104-29 to * * * the `Code of Criminal Procedure of 1963' * * *" (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-28(a)) (hereafter referred to as the Act) to be unconstitutional. The Act became effective on December 28, 1979, and sets out a comprehensive scheme of procedures for defendants charged with a crime who are unfit to stand trial or to plead. The section held to be invalid established procedures in cases of defendants such as Randy Rink, who, before the effective date of the Act, had been found to be unfit.
The defendant was indicted on December 17, 1970, for the murder of his father, and for aggravated battery upon his mother. On February 10, 1971, he was found by a jury to be mentally unfit to stand trial. Pursuant to the then-effective provisions of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 104-3, repealed by Pub. Act 77-2097, sec. 8-5-1 (eff. Jan. 1, 1973), 1972 Ill. Laws 836), he was committed to the Department of Mental Health for the duration of his condition. He has since been in the custody of that department and its successor, the Department of Mental Health and Developmental Disabilities (hereafter the Department).
As stated, the Act sets out a comprehensive scheme of procedures for criminal defendants who are found unfit to stand trial or to plead. In providing for those defendants who, prior to the effective date of the Act, were found to be unfit, section 104-27 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-27) requires that, within 180 days of the effective date of the Act, the Department compile a report for the courts> as to each unfit defendant in its custody on the effective date of the Act. Section 104-28 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-28), part (a) of which was the provision held unconstitutional by the circuit court here, provides:
"(a) Upon reviewing the report, the court shall determine whether the defendant has been in the custody of the [Department] for a period of time equal to the length of time that the defendant would have been required to serve, less good time, before becoming eligible for parole or mandatory supervised release had he been convicted of the most serious offense charged and had he received the maximum sentence therefor. If the court so finds, it shall dismiss the charges against the defendant. If the defendant has not been committed pursuant to the Mental Health and Developmental Disabilities Code [Ill. Rev. Stat. 1979, ch. 91 1/2, par. 1-100 et seq.], the court shall order him discharged or shall order a hearing to be conducted forthwith pursuant to the provisions of the Code. * * *
(b) If the court finds that a defendant has been in the custody of the [Department] for a period less than that specified in paragraph (a) of this Section, the court shall conduct a hearing * * * to redetermine the issue of the defendant's fitness to stand trial or to plead. If the defendant is fit, the matter shall be set for trial. If the court finds that the defendant is unfit, it shall proceed pursuant to Section 104-20 or 104-23 [which apply to those found unfit under the Act, and which are explained below], provided that a defendant who is still unfit and who has been in the custody of the [Department] for a period of more than one year from the date of the finding of unfitness shall be immediately subject to the provisions of Section 104-23." (Emphasis added.)
Section 104-20 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-20) provides for periodic hearings to inform the court of the progress of defendants who are undergoing treatment. Section 104-23 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-23), on the other hand, concerns the defendants who remain unfit one year after the initial finding of unfitness, or about whom the court has determined that there is no substantial probability of attaining fitness within a year of the finding of unfitness.
One of the dispositions provided for in section 104-23 is a "discharge hearing." This hearing may be requested by the defendant at any time, or by the State where the defendant has remained unfit for a year after the original finding of unfitness or where it has been found that there is no substantial probability that the defendant will attain fitness within a year of the finding of unfitness. The details of the hearing are set out in section 104-25 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104-25). Its purpose is "to determine the sufficiency of the evidence" of the defendant's guilt of the crimes with which he is charged. If the evidence presented at the hearing fails to establish the defendant's guilt beyond a reasonable doubt, or if he is found not guilty by reason of insanity, the court is to enter a judgment of acquittal. If the State sustains its burden, however, the defendant may be remanded for a period of treatment longer than the one-year period from the finding of unfitness provided for in section 104-23. If the State sustains its burden upon a charge of murder, the treatment period may be extended up to five years.
Pursuant to the foregoing provisions, the Department prepared a report on Randy Rink. The report stated that the defendant had been at Chester Mental Health Center for the past nine years. The circuit court of Du Page County then conducted a hearing and determined that the defendant had not been in the custody of the Department for a period of time equal to the length of time that he would have been required to serve, minus good time, before becoming eligible for parole or mandatory supervised release, had the defendant been convicted of murder and received the maximum sentence. Too, the court found that the defendant was still unfit and that there was no substantial probability that he would become fit within a year.
Acting on requests by the defendant and the State, a discharge hearing was held. The court found that the State had proved that the defendant was sane at the time and was guilty of murder beyond a reasonable doubt. The court found, too, that the defendant was in need of treatment, and the defendant was remanded to Chester Mental Health Center for five years of treatment.
The defendant's motion for a new trial was denied. The defendant then moved that his "sentence" of five years of treatment be reconsidered. The court denied the motion to reconsider and at the same time, without specifying reasons, held that section 104-28(a) was unconstitutional. In holding so, the court appears to have accepted an argument of the State that the provision in the section for dismissal of charges was in violation of the principle of the separation of powers.
The constitutionality of section 104-28(a) is the principal issue here. The State contends that the circuit court correctly held the section unconstitutional, because the section is, in effect, a legislative grant of amnesty that encroaches upon the executive branch's power to pardon. Too, the State says that the section unconstitutionally trespasses upon and interferes with the State's Attorney's power to charge the commission of crimes.
The State's argument is founded on its assumption, which apparently the trial court also acted on, that the dismissal required under the statute is to be a dismissal with prejudice. The State in oral argument before us acknowledged, though, that it would also be reasonable to interpret the section of the Act as providing for dismissal of charges with leave to reinstate. That interpretation would be constitutional, the ...