Appeal from the Circuit Court of Winnebago County; the Hon.
John W. Nielsen, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Defendant, Ora Brown, appeals from his convictions and sentences for driving while under the influence of alcohol and improper lane usage. He argues on appeal that the trial court erred in denying his motion to vacate its findings of guilt and to set the cause for a fitness hearing. He filed this motion after the circuit court of Winnebago County found him guilty in a bench trial of the above offenses and not guilty of two disorderly conduct charges, and before the scheduled sentencing hearing.
The court denied the motion on the grounds that article 104 of the Code of Criminal Procedure of 1963, which governs an accused's right to a fitness hearing (Ill. Rev. Stat. 1983, ch. 38, pars. 104-10 to 104-31), does not permit a defendant to procure a fitness hearing to determine his fitness to be tried after he has been found guilty, and that article 104 does not apply in proceedings based upon violations of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 1 through 20). In denying defendant's subsequent motion to reconsider, the court stated that article 104 does not apply to a sentencing hearing in a misdemeanor proceeding. The court sentenced defendant to a 362-day term of imprisonment in the Department of Corrections. Defendant filed timely notice of appeal and argues that the trial court's bases for denying his motion were erroneous and that a bona fide doubt of his fitness existed.
Contemporaneous with the instant proceedings, defendant was charged with an unrelated felony. Two doctors examined him on August 27, 1982, and found him unfit to stand trial in that proceeding. The trial in the instant case commenced on September 24, 1982. The record on appeal does not contain a report of proceedings of the State's case in chief. According to the statement by the State's Attorney, the offense occurred on August 6, 1981. Two young girls on bicycles complained to police officers that defendant was following them in his car. The officers saw defendant weaving down the road behind them. Defendant made a U-turn in an unsuccessful attempt to avoid the officers. These officers had seen defendant a few minutes earlier appearing drunk and lying on a sidewalk. They warned him at the time that he was too drunk to drive, to which defendant replied, "Let's go get some babies."
After the State rested, the cause was continued until September 27, at which time defendant testified. It is unclear from reading the report of proceedings of that testimony as to its relevance to the charged offenses except that defendant denied any involvement in the charged offenses. The trial court then found defendant guilty of driving while under the influence and improper lane usage and ordered the preparation of a presentence report.
The probation officer who submitted the report explained in the report that the incompleteness of the report resulted from defendant's refusal to talk to the officer on the grounds that he had been falsely accused and framed. Further, defendant complained that he was the victim of a police plot and police persecution, advised that he "was in a coma and they poured something down me," and informed the probation officer that he had called the FBI to investigate the matter and was preparing to sue the police and the court systems. At a subsequent meeting, defendant appeared confused and stated that he did not "know what they are trying to do to me."
On October 26, 1982, defendant filed a motion to vacate the findings of guilty and for a fitness hearing. The motion alleged that it had become apparent to counsel during the course of trial and since trial that defendant was unfit for trial and is presently unfit to participate in a sentencing hearing. He requested the appointment of a qualified expert to examine him pursuant to section 104-14 of the Code.
At the April 14, 1983, hearing on defendant's motion, his counsel represented that during the trial, defendant's testimony differed from what they discussed earlier. Two weeks after the trial, defendant came to his office in a tirade and pounded on the walls and glass desk complaining that he had not had a trial. Defendant's attorney continued that in the unrelated pending felony against defendant, two psychiatrists had examined defendant pursuant to court order and testified that defendant was unfit to stand trial or to be sentenced. Doctors who examined defendant at a mental health center also opined that defendant was unfit to stand trial and that he probably would not regain fitness within a one-year period of time. A copy of the letter prepared by the doctors of this mental health center, dated December 7, 1982, was tendered to the trial court. Further, the judge presiding over that felony proceeding found defendant unfit to stand trial.
The assistant State's Attorney agreed that a bona fide doubt as to defendant's fitness for sentencing existed. The court took judicial notice of everything presented to it and continued the cause.
On the next day, a public defender testified that the trial judge in the felony proceedings found defendant unfit on November 5, 1982, and discharged defendant on February 17, 1983. Defendant's counsel again sought the appointment of two psychiatrists, and the State voiced no objections.
The court denied the motion to vacate the findings of guilty because the trial had already terminated. He also ruled that article 104 of the Code does not apply to proceedings under the Illinois Vehicle Code. In scheduling the sentencing hearing, defense counsel then requested additional time, but the court gave him only 15 days. The court stated: "Well, let the record show this court did hear the trial. The defendant testified at the time of the trial. He was coherent to this court. He made sense to this court. I ruled against him. I could understand what he said. If you cannot get along with your client now, [defense counsel], that may be your problem. It certainly isn't mine."
On the date scheduled for sentencing, the trial court entertained defendant's motion to reconsider. In denying that motion, the trial court stated that not only does article 104 not apply to Illinois Vehicle Code proceedings, but it does not apply to sentencing hearings on misdemeanors. The court then proceeded to the sentencing hearing. Defendant testified during the sentencing hearing. In this testimony, he gave his opinions as to the criminal justice system and society in general, and voiced his belief that he was being persecuted by the police. During the proceedings, his counsel admonished him to remain quiet. The court then sentenced him to 362 days in the Department of Corrections. Defendant filed notice of appeal on May 26, 1983.
Defendant argues that the two legal bases which the trial court advanced in denying his motion to vacate the findings of guilty and set the cause for a fitness hearing were erroneous. In this regard, defendant does not address the trial court's initial basis that section 104 of the Code does not apply to proceedings under the Illinois Vehicle Code. The State's response, in essence, concedes that the trial court may have set out erroneous bases upon which to deny defendant's motion, but that nevertheless the trial court found that there was no bona fide doubt as to defendant's fitness to stand trial or to be sentenced.
• 1 Requiring a defendant to stand trial or be sentenced when he is not competent to do so constitutes a denial of due process of law. (People v. Chambers (1976), 36 Ill. App.3d 838, 842.) A defendant is unfit if, because of mental or physical problems, he is unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1983, ch. 38, par. 104-10; People v. Davis (1984), 127 Ill. App.3d 49, 51.) When facts raising a bona fide doubt of a defendant's fitness are made known to the trial court, either from the court's observations of the defendant or by suggestions of counsel, the court must conduct a fitness hearing. (Ill. Rev. Stat. 1983, ch. 38, par. 104-11; People v. Leiker (1983), 115 Ill. App.3d 752, 755.) The determination of whether a bona fide doubt of a defendant's fitness exists rests within the sound discretion of the trial court, who is in a superior position to observe the defendant and evaluate his conduct. (People v. Lillard ...