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03/20/95 PEOPLE STATE ILLINOIS v. PORFIRIO

March 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PORFIRIO GUTTIEREZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL TOOMIN, JUDGE PRESIDING.

As Corrected May 2, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

This State, as it must, provides adequate procedures to protect a defendant's right not to be tried while unfit. In this first degree murder case, those procedures were ignored. For that reason, we reverse the defendant's conviction and remand for a new trial.

PROCEEDINGS BEFORE TRIAL

The defendant was charged with first degree murder and aggravated battery. For reasons that are not clear, the trial judge ordered a Behavior Clinic Examination of the defendant. That examination is authorized by section 104-13(a) (725 ILCS 5/104-13(a)) of the Code of Criminal Procedure of 1963 "when the issue of fitness involves the defendant's mental condition."

Section 104-15(a) governs the contents of the report. According to that section, "the report shall include:

(1) A diagnosis and an explanation as to how it was reached and the facts upon which it is based;

(2) A description of the defendant's mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs the defendant's ability to understand the nature and purpose of the proceedings against him or to assist in his defense, or both."

Two reports were filed by Dr. Thampy. The first, dated January 25, 1991, said, in full:

"Pursuant to Your Honor's Order, the undersigned psychiatrist examined the above defendant on January 22, 1991.

Based on the above examination, it is my opinion that this defendant is mentally FIT to stand trial. He understands the nature of the charge, the purpose of the proceedings, and is able to cooperate with counsel in his own defense.

No opinion regarding sanity. Medical records have been requested." (Emphasis in original.)

Apparently, the records arrived. On February 19, 1991, Dr. Thampy filed a report that said, in full:

"Pursuant to Your Honor's Order, the undersigned psychiatrist examined the above defendant on February 19, 1991.

Based on the above examination, it is my opinion that this previously adjudicated incompetent defendant is now MENTALLY FIT FOR TRIAL, WITH MEDICATION. He understands the nature of the charge pending against him, the purpose of the proceedings, and is able to cooperate with counsel in his own defense.

It is my opinion that this defendant was legally SANE at the time of the alleged offense. He was able to appreciate the criminality of his act and was able to conform his conduct to the requirements of the law." (Emphasis in original.)

The case was called on March 18, 1991. The trial judge noted receipt of the report. He said: "We have a report from the Psychiatric Institute indicating that the defendant has been ...


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