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June 29, 1994


Appeal from the Circuit Court of Du Page County. No. 90-TR-028752. Honorable John T. Elsner, Judge, Presiding.

Released for Publication August 3, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Doyle, Bowman, Quetsch

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

After a jury trial, defendant, Timothy Ryan, Jr., was convicted of speeding (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 11-601(b) (now 625 ILCS 5/11-601(b) (West 1992))) and fined $200 and costs. On appeal, defendant argues that the trial court erred in denying his motion foran automatic substitution of Judges. (See Ill. Rev. Stat. 1989, ch. 38, par. 114-5(a) (now 725 ILCS 5/114-5(a) (West 1992)) (section 114-5(a) herein)). Defendant filed his motion for substitution after we vacated his initial conviction and remanded the cause for a new trial. (People v. Ryan (2d Dist. Sept. 30, 1991), Nos. 2-90-1352, 2-90-1353 cons. (unpublished order under Supreme Court Rule 23).) There, we vacated defendant's conviction of speeding because the trial court improperly denied defendant's timely motion for an automatic substitution of Judges.

On February 26, 1990, defendant was charged with speeding. The case was assigned for a jury trial before Judge Richard A. Lucas. Defendant filed a timely motion for substitution of Judges, but Judge Lucas denied the motion. Defendant was convicted of speeding and of direct criminal contempt of court.

In his first appeal, we reversed defendant's contempt conviction, vacated his conviction of speeding, and remanded the cause for a new trial before a different Judge. We held that under section 114-5(a) defendant was entitled to a substitution of Judges upon his proper and timely motion. Section 114-5(a) provides:

"Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move the court in writing for a substitution of that Judge on the ground that such Judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the trial court shall proceed no further in the cause but shall transfer it to another Judge not named in the motion." Ill Rev. Stat. 1989, ch. 38, par. 114-5(a) (now 725 ILCS 5/114-5(a) (West 1992)).

Because section 114-5(a) required the trial court to grant defendant's timely motion, which it failed to do, the trial proceedings after the denial of the motion were void and the conviction and sentence had to be vacated. Ryan, Nos. 2-90-1352, 2-90-1353 cons., slip op. at 9-11.

On remand, the circuit clerk initially placed defendant's case back on the status call of Judge Lucas. In view of the direction of our mandate, Judge Lucas immediately recused himself and reassigned the cause to Judge John T. Elsner. Within 10 days, and before Judge Elsner made any substantive rulings in the case, defendant filed a written section 114-5(a) motion for substitution of Judges. Defendant alleged that he believed that he could not receive a fair trial from Judge Elsner.

The trial court (Judge Elsner) denied defendant's motion and his motion to reconsider. Thereafter, Judge Elsner entered orders, at various times, continuing the case for trial, setting bail, is suing arrestwarrants against the defendant for failure to appear, quashing trial subpoenas, requiring defendant to remove his face mask or produce a doctor's prescription for the wearing of a face mask in court, forfeiting bail bond, and orally requiring that defendant leave the courtroom and that a bailiff take defendant into custody. Finally, defendant went to trial before a jury and a Judge other than Judge Elsner. After defendant was convicted and sentenced, he filed this timely appeal.

Relying solely on our decision in People v. Redisi (1989), 188 Ill. App. 3d 797, 136 Ill. Dec. 361, 544 N.E.2d 1136, defendant maintains that his second motion for substitution of Judges was timely and proper because the reassignment of the case, upon remand, to Judge Elsner entitled defendant to file a new motion to challenge a trial Judge whom defendant had had no previous opportunity to challenge. The State responds that this court's earlier order remanding the case for trial before a different Judge effectively granted defendant's original motion for substitution of Judges and that defendant's second motion, directed against Judge Elsner, was untimely and unwarranted.

The purpose of the provision for automatic substitution of Judge is to enhance the impartiality of the judicial process. ( Redisi, 188 Ill. App. 3d at 801; People v. Hanson (1983), 120 Ill. App. 3d 84, 86, 75 Ill. Dec. 606, 457 N.E.2d 1048.) Section 114-5(a) gives a defendant the absolute right to a substitution of Judges upon the timely filing of a proper written motion for substitution. ( People v. Walker (1988), 119 Ill. 2d 465, 470, 116 Ill. Dec. 675, 519 N.E.2d 890.) Because the right to a fair and impartial trial Judge is fundamental, section 114-5(a) is to be construed liberally to promote rather than to defeat substitution. ( Walker, 119 Ill. 2d at 480-81.) "Once the motion is properly brought, the trial Judge loses all power and authority over the cause except to make the necessary orders to effectuate the change, and if a defendant's motion is improperly denied, all subsequent action of the trial court is void." Redisi, 188 Ill. App. 3d at 801.

We disagree with defendant that our decision in Redisi stands for the proposition that when a reviewing court has reversed and ordered that a cause be reassigned to a different Judge because the trial court erroneously denied the defendant's section 114-5(a) motion for automatic substitution of Judges, the defendant will be ...

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