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06/11/97 PEOPLE STATE ILLINOIS v. TIMOTHY HAYDEN

June 11, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
TIMOTHY HAYDEN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County. No. 90-CF-781. Honorable C. Glenn Stevens, Judge, Presiding.

The Honorable Justice Welch delivered the opinion of the court. Hopkins, J., and Chapman, J., concur.

The opinion of the court was delivered by: Welch

ORDER

This cause has been considered on the State's motion to publish and defendant's response thereto; and the court being advised in the premises:

IT IS THEREFORE ORDERED that the motion to publish shall be, and the same hereby is, GRANTED.

The Honorable Justice WELCH delivered the opinion of the court:

Following a much-publicized jury trial in the circuit court of St. Clair County, defendant Timothy Hayden was convicted of first-degree murder for the brutal stabbing death of his estranged wife Tracy and was sentenced to 55 years in the Department of Corrections. Defendant's posttrial motion was denied, and his conviction and sentence were affirmed on direct appeal to this court in an unpublished order filed December 14, 1993. People v. Hayden, No. 5-91-0560 (1993) (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).

On October 4, 1994, defendant, through his counsel, filed a petition for postconviction relief pursuant to section 122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1992)), citing numerous alleged instances of ineffective assistance of trial counsel and the ineffective assistance of appellate counsel. On February 14, 1995, defendant filed a supplemental petition for postconviction relief based on the failure to hold a hearing into his fitness to stand trial pursuant to section 104-21(a) of the Code of Criminal Procedure of 1963, which provides that a defendant who is being administered psychotropic medications is entitled to such a hearing (725 ILCS 5/104-21(a) (West 1992)). The supplemental petition alleges ineffective assistance of counsel in failing to request such a hearing, deprivation of defendant's constitutional right to due process, and ineffective assistance of appellate counsel for failing to raise the issue on direct appeal. The supplemental petition is supported by defendant's affidavit asserting that both before and during his trial he was being administered psychotropic medications, including Haldol. The petitions were docketed for further proceedings pursuant to section 122-2.1(b) of the Post-Conviction Hearing Act. 725 ILCS 5/122-2.1 (b) (West 1992).

Pursuant to section 122-5 of the Post-Conviction Hearing Act (725 ILCS 5/122-5 (West 1992)), the State filed an amended motion to dismiss both the original and supplemental petitions. A hearing was held on this motion on March 31, 1995. The report of proceedings of this hearing clearly reflects that both attorneys and the court understood that the hearing was only on the State's amended motion to dismiss and not on the merits of defendant's petitions. The State's amended motion to dismiss defendant's original and supplemental postconviction petitions was taken under advisement.

On January 30, 1996, the trial court entered an order directing that the parties submit within 28 days proposed written orders on the amended motion to dismiss. The proposed written orders were to "be in the alternative regarding questions of law and/or various factual issues which would require an evidentiary hearing." On the twenty-eighth day, defendant submitted to the trial court two proposed orders, one of which was adopted by the trial court. The State failed to submit any proposed order.

Accordingly, on February 28, 1996, the circuit court of St. Clair County entered an order denying the State's amended motion to dismiss defendant's postconviction petitions. The court found that defendant was taking psychotropic drugs at the time of and immediately prior to his trial, that this was revealed in open court prior to defendant's trial, that the failure of defendant's counsel to request a fitness hearing pursuant to section 104-21(a) of the Code of Criminal Procedure of 1963 deprived defendant of the effective assistance of counsel, and that the trial court's failure to order such a hearing was reversible error. Accordingly, the court granted defendant's supplemental petition for postconviction relief. The court did not address the issues raised in defendant's original postconviction petition. The trial court vacated defendant's conviction and ordered a new trial.

The State filed an amended motion to reconsider or vacate the court's order, arguing, inter alia, that the court had exceeded its authority not only in denying the State's amended motion to dismiss, but also in granting the defendant's supplemental petition without giving the State the opportunity to answer that petition, as provided in section 122-5 of the Post-Conviction Hearing Act (725 ILCS 5/122-5 (West 1992)). The State's motion was denied by order entered March 6, 1996. The State brings this appeal.

Section 122-5 of the Post-Conviction Hearing Act provides as follows:

"Within 30 days after the making of an order pursuant to subsection (b) of Section 122-2.1, or within such further time as the court may set, the State shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, the State must file an ...


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