dissenting:
The majority finds that the trial court did not abuse, its discretion in failing to conduct a hearing to determine whether defendant, Alvin Vernon, was fit to stand trial. Implicit in that finding is a determination that Vernon had a fair trial. Because I believe there was an abuse of the trial court’s discretion at an earlier stage in the fitness inquiry, I believe defendant should have a new trial and I respectfully dissent.
The relevant facts gleaned from the record before us show that trial had been set for February 19, 2002, and that at a pretrial hearing on February 5, 2002, defense counsel informed the court that Vernon had been hospitalized several times during the 1990s for psychiatric treatment. Counsel requested the appointment of a psychiatrist to examine the defendant. That same day, the court, without objection from the State,, appointed Dr. So Hee Lee to perform the evaluation. A new trial date of April 8, 2002, was set.
A second continuance was requested because, on April 9, the report had still not been submitted. It appears from the record that the trial proceeded on May 28, 2002, without either receipt or evaluation of the psychiatric report.
ANALYSIS
“When the circuit court in the proper exercise of its discretion orders a psychiatric examination of defendant, it undertakes a concomitant duty to ensure that the resultant report fulfills the [statutory] requirements ***. Otherwise, the purpose of the statute would be defeated and the substance of the examiner’s recommendations would not be amenable to independent judicial scrutiny.” People v. Harris, 113 Ill. App. 3d 663, 669, 447 N.E.2d 941 (1983). How much truer is this if no report is submitted at all?
The statutory requirements which the court has a duty to enforce are set out in section 104 — 15 (725 ILCS 5/104 — 15 (West 2002)) and they direct that the report shall be submitted “to the court, the State, and the defense within 30 days of the date of the order.” It is further required that “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.” (Emphasis added.) 725 ILCS 5/104 — 15 (West 2002).
As can be seen, the issue of defendant’s fitness to stand trial, once raised, cannot be allowed to simply languish unresolved. The court must secure the report that it has ordered and evaluate whether it raises a bona fide doubt of the defendant’s fitness to participate meaningfully in his defense. To require less creates a very real risk that defendant will be deprived of due process.
“Convicting a person who is unfit to stand trial violates due process. [Citations.] It follows, then, that a State must provide adequate procedures to protect defendant’s right not to be tried while unfit.” People v. Guttierez, 271 Ill. App. 3d 301, 304, 648 N.E.2d 928 (1995), appeal denied, 162 Ill. 2d 574, 652 N.E.2d 346 (1995). The State has fulfilled its obligation to provide the procedures, but enactment without enforcement is meaningless. The conviction of a person who is unfit to stand trial violates due process. This violation can occur where there is a “failure to observe procedures adequate to protect a defendant’s right not to be tried while unfit and it deprives him of his due process right to a fair trial.” (Emphasis added.) People v. Murphy, 72 Ill. 2d 421, 430, 381 N.E.2d 677 (1978).
For these reasons, I would find that defendant was deprived of a fair trial and I would vacate the conviction and remand for appropriate fitness proceedings and a new trial.