Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1986.
In March 1982, the defendant, Wilbur Williams, was indicted for attempt (rape), deviate sexual assault and aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(a), 11-3(a), 12-4(a).) He was involuntarily civilly committed to the Department of Mental Health and Developmental Disabilities (Department) after being found unfit to stand trial. On March 4, 1985, the circuit court established the defendant's maximum period of involuntary civil commitment to be 30 years, the maximum term he would have served if he had been guilty of the most serious crime with which he was charged. The defendant appeals, questioning whether he is entitled to receive statutory and compensatory good-time credit to reduce the maximum term of his confinement because he was found unfit to stand trial.
After the defendant was charged with the crimes, the trial court on October 8, 1980, found the defendant not fit to stand trial and remanded him to the custody of the Department. A discharge hearing was conducted under section 104-25 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104-25), on May 28 and July 22, 1982. At the conclusion of the hearing, the court stated:
"Gentlemen, the Court has listened very carefully to all the evidence in the case, and I feel by reason of the evidence presented that such evidence reflects that the defendant was or is guilty beyond a reasonable doubt of the offense charged, namely, attempt rape, aggravated battery, and deviate sexual assault.
With respect to the order of this court, I do not feel that it would be an appropriate application of the new statute to consider that in this case. Therefore, pursuant to section 104-25 of Chapter 38, the Court would order that the defendant be remanded to the Department of Mental Health and Developmental Disabilities for further treatment for the period not to exceed two years."
Periodic reports of the defendant's fitness were thereafter submitted to the court. After the two-year limitation period expired, the court found that the defendant was still unfit and, pursuant to section 104-25(g)(2) (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(g)(2)), directed the Department of Mental Health at Chester to file a petition and conduct a hearing for defendant's involuntary civil commitment and to report the result of that proceeding to the court. On January 9, 1985, the court was advised by the acting superintendent of the mental health center that the defendant was involuntarily civilly committed to the Department. On January 21, the court entered an order granting the State's motion to nol-pros the criminal charges against the defendant and further ordered that the Department should not conditionally release or discharge the defendant without prior approval of the court. On March 4, 1985, the Kane County circuit court, having found the defendant was involuntarily civilly committed and that the necessary findings had been made pursuant to the Code, set the maximum period of commitment at 30 years, the maximum sentence for deviate sexual assault, the most serious of the offenses with which the defendant had been charged. Ill. Rev. Stat. 1983, ch. 38, par. 104-25(g)(4).
The defendant asserts that the trial court correctly observed that section 104-25 of the Code (Ill. Rev. Stat. 1983, ch. 38, pars. 104-25(g)(2), (g)(4)) does not authorize application of good-time credit to reduce the defendant's period of treatment. However, the defendant contends because the statute is silent it must be viewed either as an unintentional oversight by the legislature or, if an intentional omission, a violation of equal protection. Therefore, under either argument, the defendant believes he is entitled to receive good-time credit at the time the court originally imposed his 30-year period of commitment to reduce the maximum term of his confinement.
Effective December 28, 1979, the legislature implemented changes in the law addressing the commitment and treatment of defendants who were unfit to stand trial. Sections 5-2-1 and 5-2-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-2-1, 1005-2-2) were repealed and replaced with sections 104-10 through 104-31 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104-10 et seq.).
Like the old legislation, the new legislation has no accommodation awarding good-time credit from the time of the court's imposition of a period of commitment. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-2; Ill. Rev. Stat. 1983, ch. 38, par. 104-25.) Section 104-25(g)(2) states, in relevant part:
"Discharge hearing. * * *.
If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Mental Health and Developmental Disabilities * * * for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding." Ill. Rev. Stat. 1983, ch. 38, par. 104-25(g)(2).
Under the new legislation, for disposition of defendants who had been found unfit prior to the enactment of the present litigation:
"Upon reviewing the report, the court shall determine whether the defendant has been in the custody of the Department of Mental Health and Developmental Disabilities 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, ...