Appeal from the Circuit Court of Du Page County; the Hon.
Anthony Peccarelli, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Douglas Sonntag, was found guilty in a jury trial of one count of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(6)), and was subsequently sentenced to an 18-month term of probation.
The issue raised by defendant in this appeal is whether, following a hearing, the trial court erred in denying his motion for discharge which alleged the failure to try him within the statutory 120-day speedy-trial term pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)).
As defendant's sole contention on appeal relates to whether the 120-day speedy-trial term was complied with, we set forth only those facts necessary to resolve that issue and need not recount the trial testimony. On August 26, 1982, defendant was incarcerated following an altercation occurring at his father's residence and was charged with aggravated battery and other misdemeanor offenses arising out of this incident. The defendant failed to post bond. Following a preliminary hearing and a bond reduction hearing, defendant's counsel filed on October 18, 1982, a petition to determine the defendant's fitness. The petition was dismissed for failure to raise a bona fide doubt as to the defendant's fitness to stand trial. The trial judge explained that the petition was based on conclusions and that specific grounds must be raised in support of a petition to determine fitness. However, the court granted Mr. Conniff, defendant's counsel, leave to refile an amended petition at a future date. Additionally, the court was informed that defense counsel had failed to comply with discovery since he had "anticipated we were going to proceed by way of a fitness hearing." A trial date was then set for December 13, 1982.
On the following day, October 19, 1982, defendant filed a petition for a physical examination because of pain in his shoulder from a prior injury, as well as a petition to appoint a qualified expert to examine him on the question of fitness pursuant to section 104-11(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104-11(b)). The court granted the latter petition and ordered that the defendant submit to an examination by Dr. Lyle Rossiter to determine if a bona fide doubt of fitness may be raised. The judge noted that "I am not making that determination now, but only to determine if there is a bona fide doubt." Defendant's motion for a physical examination was continued, pending the results of a previous examination, to October 25, 1982. On October 19, 1982, defendant had been incarcerated for 55 days.
On October 25, 1982, after reviewing a medical report, the court granted the defendant's motion for a physical examination. At this time, the defendant, on his own oral motion, requested a change in public defenders. Mr. Conniff, defendant's then-assigned public defender, explained that he was making arrangements internally for the office to have another public defender assigned to the case. The court reminded counsel that the case was set for trial December 13, 1982.
On December 13, 1982, the day the case was set for trial, the State answered ready. At this time, Mr. Conniff filed another petition to raise a bona fide doubt of the defendant's fitness to stand trial based, in part, on the defendant's refusal to submit to an examination by Dr. Rossiter. The defendant renewed his request for a change of public defenders.
The trial court granted Mr. Conniff's petition on behalf of defendant to raise a bona fide doubt and ordered again an evaluation by Dr. Rossiter, continuing the matter to January 10, 1983, pending a report on the defendant's fitness status. The court also stated that another public defender would be appointed. On December 13, 1982, defendant had been incarcerated for 109 days.
On January 10, 1983, it was again reported back to the court that the defendant refused to speak to Dr. Rossiter. A new public defender, Mr. Thomas Laz, appeared as substitute counsel and moved to withdraw the petition for a fitness hearing previously filed by public defender Conniff. The trial judge allowed the petition to be withdrawn, but ruled that since a bona fide doubt of the defendant's fitness had been raised in his mind it was the duty of the court, on behalf of the defendant, to conduct a fitness hearing. The court set the cause for a jury fitness hearing on January 19, 1983.
On January 19, 1983, the parties answered ready for the defendant's fitness hearing. However, due to the court's involvement in another matter, the fitness hearing was continued to the following day, January 20, 1983.
On January 20, 1983, a fitness hearing was held, and a jury determined that the defendant was fit to stand trial. After this finding, the court ordered a bond hearing for the following day.
On January 21, 1983, a bond hearing was held on motion of the court. As a result, the defendant was released on a recognizance bond with the conditions that he not have any communication with his father or go to his father's residence. The cause was then set for trial on February 2, 1983. The defendant also made a formal demand for trial on January 21, 1983.
After several trial dates were continued either on a motion of the defendant, who was on bond, or the State, or by the court on its own, on June 20, 1983, the State filed a motion to revoke the defendant's bond, alleging that he had violated one of the conditions since he had no place to live other than at his father's residence. The State's motion was granted, and the defendant was again taken into custody on the original offense. The trial date of July 25, 1983, set while the defendant was on bond, was undisturbed.
On July 20, 1983, the defendant filed a motion to dismiss alleging that he was not tried within 120 days of being taken into custody pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)). The court heard argument on the motion on July 25, 1983.
On July 26, 1983, the trial court denied defendant's motion to dismiss, finding that the speedy-trial term was tolled from the filing of defendant's petition to determine fitness on October 19, 1982, until the determination on January 19, 1983, ascribing the delay to the defendant because of his refusal to consult with a psychiatrist pursuant to court order. Following this ruling, the ...