specially concurring:
This court decided People v. Brandon, 162 Ill.. 2d 450 (1994), fewer than four years ago and has been running from it ever since. The bright-line rule announced by that case and mandated by law has been replaced by a regime of exceptions and special circumstances. Everything, it seems, has become sui generis. Stare decisis means nothing. People v. Burgess, 176 Ill. 2d 289, 324 (1997) (Harrison, J., dissenting).
In the case before us today, the circuit court did exactly what my colleagues allowed the circuit court in Burgess to get away with. It exceeded the terms of our limited remand and conducted what amounted to a retrospective fitness hearing. Although the trial judge denied that he was “conducting a fitness hearing regarding the Defendant’s fitness to stand trial at the time he entered his plea,” his characterization is immaterial. What matters is what the judge actually did, not what he said, and what the judge did here was ignore our directions on remand and convene a hearing that was in every meaningful way identical to a retrospective fitness hearing. The majority’s suggestion that this was something other than a retrospective fitness hearing is as disingenuous as its pretense that Brandon has not been overruled.
In Burgess, 176 Ill. 2d at 302-04, this court abandoned its view that retrospective hearings were always improper. In that case we held that a defendant who has been denied his right to a fitness hearing under section 104 — 21(a) of the Code of Criminal Procedure of 1963 is not automatically entitled to a new trial under Brandon and its progeny if evidence subsequently presented to the court establishes that the defendant did not, in fact, suffer any impairment as a result of his ingestion of psychotropic medication.
Shortly after Burgess was decided, this court held that the rule announced in that case was subject to an important exception. In People v. Neal, 179 Ill. 2d 541 (1997), we stated that if more than a year has elapsed since the original trial and sentencing, a retrospective fitness determination is not normally adequate to protect the defendant’s due process rights. Unless exceptional circumstances exist where it can still be shown that the psychotropic medication could not possibly have had any effect on the defendant’s fitness, a defendant who failed to receive the hearing mandated by section 104 — 21(a) at the time of his original trial and sentencing is entitled to a new trial.
Resolution of the case before us today should involve nothing more than a straightforward application of these principles. Because more than a year has passed since defendant was convicted and sentenced, and because this is not a case where we can say that the medication could not possibly have had any effect on defendant’s fitness, a retrospective fitness determination could not adequately protect his due process rights. That being so, the initial failure to provide defendant with the statutorily mandated fitness hearing at the time of his trial necessitates that his conviction and sentence be vacated and that the cause be remanded for a new trial.
For these reasons, and no others, I concur in the majority’s judgment.