Appeal from the Circuit Court of Cook County; the Hon. Richard
J. Fitzgerald, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Frank Kulak, appeals from the order of the circuit court of Cook County denying his motion for summary judgment and granting the motion of an intervenor, the State's Attorney of Cook County, to dismiss the plaintiff's petition for a writ of habeas corpus for failure to state a cause of action.
The record reveals that, in May 1969, the plaintiff was charged with several counts of murder, attempted murder, and aggravated battery. On February 27, 1970, the plaintiff was found unfit to stand trial (Ill. Rev. Stat. 1969, ch. 38, par. 104-1), and remanded to the custody of the Department of Mental Health pursuant to section 104-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 104-3), which provided for the automatic confinement of unfit defendants "during the continuance of that condition."
At a hearing on December 3, 1975, the plaintiff was again found unfit to stand trial, this time pursuant to section 1005-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1), which replaced section 104-1 as the fitness standard. The new fitness statute provided that persons found unfit must either be committed under the Mental Health Code of 1967, or released on bail on their own recognizance (Ill. Rev. Stat. 1975, ch. 38, par. 105-2-2). Thus, after the plaintiff was again found unfit to stand trial, on December 3, 1975, another hearing was held, on December 12, 1975, and he was committed as "in need of mental treatment" under the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 1-1 et seq.), and remanded to the custody of the Department of Mental Health and Developmental Disabilities (Department). The finding of unfitness was based, in part, upon the recommendation of a psychiatrist who, in a report dated November 2, 1975, found that the plaintiff would "not be mentally fit in the foreseeable future."
On January 1, 1979, the Mental Health Code of 1967 was repealed and replaced by the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 1-100 et seq.). Pursuant to section 3-813 of the Code (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 3-813), which provided that patients be released unless periodically recommitted, the plaintiff was again committed on April 20, 1979, July 18, 1979, and on October 19, 1979. The plaintiff has not had another civil commitment hearing since October 1979.
Thereafter, on December 28, 1979, sections 1005-2-1 and 1005-2-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-2-1, 1005-2-2) were repealed and replaced by Article 104 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1979 Supp., ch. 38, par. 104-10 et seq.). Pursuant to section 104-28(a), a defendant found unfit prior to the effective date of Article 104 is entitled to be released if he 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." (Ill. Rev. Stat. 1985, ch. 38, par. 104-28(a).)
Section 104-28(a) further provides that, once the above period has expired, the court
"shall dismiss the charges against the defendant, with leave to reinstate. If the defendant has not been committed pursuant to the Mental Health and Developmental Disabilities Code, the court shall order him discharged or shall order a hearing to be conducted forthwith pursuant to the provisions of the Code." Ill. Rev. Stat. 1985, ch. 38, par. 104-28(a) (as amended pursuant to Public Act 82-577, eff. Sept. 24, 1981).
On January 7, 1981, pursuant to section 104-28(a), the plaintiff filed a motion in the circuit court of Cook County to dismiss the indictments filed against him by the State in May 1969. Following a hearing, the trial court denied the plaintiff's motion. The court concluded that the plaintiff had not been in custody for a period of time longer than he would have served had he been convicted of the most serious offense charged, as required under section 104-28(a). The trial court's decision was based upon its determination that consecutive sentences may be used to determine how long unfit defendants may be confined under section 104-28(a). The trial court also determined that the plaintiff remained unfit to stand trial, and that he was not eligible for civil commitment under the Code. The trial court ordered the plaintiff confined in the Department's maximum security facility at Chester until further order of court.
On November 14, 1984, the plaintiff filed a petition for a writ of habeas corpus, claiming that he was being held by the defendants, Michael Belletire, Acting Director of the Department, and Ralph Hay, Acting Facility Director of the Chester Mental Health Center, in violation of Illinois law and the Illinois and United States constitutions. The Department filed its return to the plaintiff's petition on December 14, 1984. It admitted that it was holding the plaintiff and claimed that it had authority to do so pursuant to the findings of unfitness in 1970 and 1975 and the trial court's order of January 7, 1981. The Department asked the court to determine the plaintiff's current status.
On December 11, 1984, the trial court allowed the Cook County State's Attorney to intervene over the plaintiff's objections. The intervenor, thereupon, filed a motion to dismiss the habeas corpus petition. Counsel for the plaintiff and the Department presented an agreed order to the court, which provided that a commitment hearing would have been held pursuant to the Code, with the plaintiff's continuing confinement being predicated on the results of that hearing. Under the terms of the agreed order, the charges against the plaintiff were to be dismissed with leave to reinstate, and unless the defendant was civilly committed, he was to be discharged from the custody of the Department. However, the intervenor objected to the agreed order, and the case was continued to allow the plaintiff to file a motion for summary judgment.
Subsequently, on March 19, 1985, the Department filed a motion for entry of an agreed order. The motion was opposed by the intervenor, who subsequently filed a memorandum in opposition to the plaintiff's motion for summary judgment and in support of its motion to dismiss.
On May 16, 1985, the trial court denied the plaintiff's motion for summary judgment and granted the intervenor's motion to dismiss. The trial court held that the plaintiff had not been in custody for a period of time equal to the length of time he would have served before becoming eligible for parole if he had been convicted of and received the maximum sentence for the most serious offense with which he was charged. In so holding, the trial court again concluded that consecutive sentences may be used to determine ...