No. 3--01--0163
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2002
| THE PEOPLE OF THE STATE | ) | Appeal from the Circuit Court |
| OF ILLINOIS, | ) | of the 9th Judicial Circuit |
| ) | Fulton County, Illinois | |
| Plaintiff-Appellee, | ) | |
| ) | ||
| v. | ) | No. 00--CF--106 |
| ) | ||
| TONY D. CLEER, | ) | Honorable |
| ) | William Henderson | |
| Defendant-Appellant. | ) | Judge, Presiding |
JUSTICE HOLDRIDGE delivered the Opinion of the Court:
Following a bench trial, the defendant, Tony D. Cleer, wasfound guilty but mentally ill of three counts of aggravateddischarge of a firearm (720 ILCS 5/24--1.2 (West 2000)) andunlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(West 2000)). The trial court sentenced the defendant toconcurrent sentences of 20 years in prison for one count ofaggravated discharge of a firearm and 5 years for unlawfulpossession of a weapon. On appeal, the defendant argues that thetrial court did not conduct a proper fitness hearing (see 725ILCS 5/104--16 (West 2000)). We remand for a new fitness hearingand further proceedings consistent with this opinion.
The defendant was charged with three counts of aggravateddischarge of a firearm, one count of armed violence (720 ILCS5/33A--2 (West 2000)) and one count of unlawful possession of aweapon by a felon. Prior to trial, the defendant filed a motionrequesting a fitness evaluation and a hearing on the issue of hisfitness to stand trial. In the motion, defense counsel averredthat the defendant had been receiving psychiatric treatment for anumber of years and that he was currently taking medicationprescribed by a mental health expert. Counsel stated that thedefendant was not able to effectively communicate and assist inhis own defense, and that counsel believed there was a bona fidedoubt as to the defendant's fitness to stand trial. The Statedid not object to the motion. The trial court allowed thefitness evaluation and appointed psychiatrist Robert Chapman toexamine the defendant.
Dr. Chapman examined the defendant on November 17, 2000. Apsychological report was filed with the court in which the doctoropined that the defendant was fit. On December 12, 2000, thedefendant filed a motion to dismiss alleging a speedy trialviolation. At the hearing on the motion, the State indicatedthat the issue of the defendant's fitness was still unresolved. Defense counsel noted that Dr. Chapman found the defendant fit. Upon inquiry from the court, counsel conceded that the defendantwas fit to stand trial and withdrew the request for a furtherhearing on the matter. The court concluded that "the movant haswithdrawn his motion for a hearing on the issue of fitness. Theissue of fitness is resolved in favor of the defendant. He isfound fit to stand trial."
At trial, the defendant testified that on May 22, 2000, hehad an altercation with his wife. Later that day, he noticed apolice officer running from his barn to his house. Defendantwent inside his house to an upstairs room and loaded a shotgunand a handgun. He then pointed the handgun out the window andfired one shot through the trees. The defendant testified thatat the time of the shooting he was taking psychotropicmedications. He was not sure whether he took his medication onthe day in question. When he failed to take it, he would"completely flip." Officer Stevenson testified that he wasleaning inside his squad car. He heard a gun shot and noticeddust or debris flying over the top of the squad car.
The court acquitted the defendant of armed violence butfound him guilty but mentally ill on all other counts. Atsentencing, the trial court vacated the judgment of convictionfor two counts of aggravated discharge of a firearm. Thedefendant was sentenced on the remaining count of aggravateddischarge of a firearm and unlawful possession of a weapon by afelon.
The defendant argues that the trial court erred by failingto conduct a fitness hearing once a bona fide doubt as to hisfitness existed. The State contends that the defendant waivedhis claim because he withdrew his request for a fitness hearingand did not raise the issue in a posttrial motion. Although thewaiver rule generally applied under such circumstances, we notethat it is a rule of administrative convenience rather thanjurisdiction. People v. Farmer, 165 Ill. 2d 194, 650 N.E.2d 1006(1995). Accordingly, "the goals of obtaining a just result andmaintaining a sound body of precedent may sometimes overrideconsiderations of waiver." Farmer, 165 Ill. 2d at 200, 650N.E.2d at 1009. Here, we are convinced that the defendant'sclaim involves an issue of sufficient import to warrantoverriding the waiver rule. See People v. Contorno, 322 Ill.App. 3d 177, 750 N.E.2d 290 (2001).
On the merits, the due process clauses of the Illinois andUnited States Constitutions prohibit the prosecution of adefendant who is unfit for trial. Ill. Const. 1970, art. I,