Appeal from the Circuit Court of Du Page County; the Hon.
Bruce Fawell, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 11, 1985.
Billie Lee Elsholtz, the defendant, was charged with theft and possession of a stolen vehicle in an information filed in the circuit court of Du Page County. A hearing was held at the conclusion of which the trial court entered an order finding defendant unfit to stand trial. On defendant's behalf, a timely notice of appeal from this order was filed on August 26, 1983. While the appeal was pending, in accordance with the relevant statutory provisions, the Department of Mental Health and Disabilities filed a report (Ill. Rev. Stat. 1983, ch. 38, par. 104-17(e)), and the trial court held two hearings to re-examine defendant's fitness at 90-day intervals (Ill. Rev. Stat. 1983, ch. 38, par. 104-20). On February 9, 1984, after the second of these hearings, the trial court found defendant fit to stand trial. Defendant, on February 21, 1984, filed a motion in this court to dismiss his appeal. On February 29, 1984, before this court ruled on defendant's motion, the trial court, fully aware of the status of the pending appeal, held a bench trial and found defendant guilty of theft but not guilty of possession of a stolen vehicle. This court dismissed the appeal on March 6, 1984. Defendant was sentenced to a three-year term of imprisonment on March 29, 1984. He has appealed arguing that, at the time of the bench trial, the trial court lacked jurisdiction to try him because of the pendency of the appeal. We agree.
The parties agree that the trial court had jurisdiction to re-examine defendant's fitness during the pendency of the appeal from the original finding of unfitness. It could not rationally be otherwise. In cases such as that at bar, where a defendant is expected to become fit with treatment, the statute provides for hearings to re-examine fitness at maximum intervals of 90 days. (Ill. Rev. Stat. 1983, ch. 38, par. 104-20(a).) In all but the most unusual cases, an appeal takes longer than 90 days. (See 87 Ill.2d Rules 326 and 343(a).) It would be wholly unreasonable to construe the statute (Ill. Rev. Stat. 1983, ch. 38, par. 104-16(e)) or the Supreme Court Rule (87 Ill.2d R. 604(e)) providing for appeals from findings of unfitness to require a final resolution of the appeal before the trial court may determine whether a defendant has become fit since the original finding of unfitness. See In re Marriage of Petramale (1981), 102 Ill. App.3d 1049, 1053, 430 N.E.2d 569, 573 (during pendency of an appeal from a judgment of dissolution of marriage awarding child support, a trial court retains jurisdiction to modify the award of child support).
According to the State, this should be dispositive of the issue raised. The State's position is that trial court jurisdiction is all or none; the trial court either had it or lacked it. From this starting point, the State argues that the trial court had jurisdiction to re-examine defendant's fitness and therefore had jurisdiction to try him after he was found to be fit. The State has cited no ...