Article 104 - Fitness For Trial, To Plead Or To Be Sentenced - Illinois Statutes

      (725 ILCS 5/Art. 104 heading)ARTICLE 104. FITNESS FOR TRIAL, TO PLEAD OR TO BE SENTENCED

(725 ILCS 5/104‑10) (from Ch. 38, par. 104‑10)     Sec. 104‑10. Presumption of Fitness; Fitness Standard.) A defendant is presumed to be fit to stand trial or to plead, and be sentenced. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑11) (from Ch. 38, par. 104‑11)     Sec. 104‑11. Raising Issue; Burden; Fitness Motions.) (a) The issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bonafide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further.     (b) Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bonafide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination. However, no order entered pursuant to this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the defendant and make a report as provided in Section 104‑15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order.     (c) When a bonafide doubt of the defendant's fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry.     (d) Following a finding of unfitness, the court may hear and rule on any pretrial motion or motions if the defendant's presence is not essential to a fair determination of the issues. A motion may be reheard upon a showing that evidence is available which was not available, due to the defendant's unfitness, when the motion was first decided. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑12) (from Ch. 38, par. 104‑12)     Sec. 104‑12. Right to Jury.) The issue of the defendant's fitness may be determined in the first instance by the court or by a jury. The defense or the State may demand a jury or the court on its own motion may order a jury. However, when the issue is raised after trial has begun or after conviction but before sentencing, or when the issue is to be redetermined under Section 104‑20 or 104‑27, the issue shall be determined by the court. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑13) (from Ch. 38, par. 104‑13)     Sec. 104‑13. Fitness Examination.     (a) When the issue of fitness involves the defendant's mental condition, the court shall order an examination of the defendant by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. No physician, clinical psychologist or psychiatrist employed by the Department of Human Services shall be ordered to perform, in his official capacity, an examination under this Section.     (b) If the issue of fitness involves the defendant's physical condition, the court shall appoint one or more physicians and in addition, such other experts as it may deem appropriate to examine the defendant and to report to the court regarding the defendant's condition.     (c) An examination ordered under this Section shall be given at the place designated by the person who will conduct the examination, except that if the defendant is being held in custody, the examination shall take place at such location as the court directs. No examinations under this Section shall be ordered to take place at mental health or developmental disabilities facilities operated by the Department of Human Services. If the defendant fails to keep appointments without reasonable cause or if the person conducting the examination reports to the court that diagnosis requires hospitalization or extended observation, the court may order the defendant admitted to an appropriate facility for an examination, other than a screening examination, for not more than 7 days. The court may, upon a showing of good cause, grant an additional 7 days to complete the examination.     (d) Release on bail or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered.     (e) Upon request by the defense and if the defendant is indigent, the court may appoint, in addition to the expert or experts chosen pursuant to subsection (a) of this Section, a qualified expert selected by the defendant to examine him and to make a report as provided in Section 104‑15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order. (Source: P.A. 89‑507, eff. 7‑1‑97.)

(725 ILCS 5/104‑14) (from Ch. 38, par. 104‑14)     Sec. 104‑14. Use of Statements Made During Examination or Treatment.) (a) Statements made by the defendant and information gathered in the course of any examination or treatment ordered under Section 104‑13, 104‑17 or 104‑20 shall not be admissible against the defendant unless he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case they shall be admissible only on the issue of whether he was insane, drugged, or intoxicated. The refusal of the defendant to cooperate in such examinations shall not preclude the raising of the aforesaid defenses but shall preclude the defendant from offering expert evidence or testimony tending to support such defenses if the expert evidence or testimony is based upon the expert's examination of the defendant.     (b) Except as provided in paragraph (a) of this Section, no statement made by the defendant in the course of any examination or treatment ordered under Section 104‑13, 104‑17 or 104‑20 which relates to the crime charged or to other criminal acts shall be disclosed by persons conducting the examination or the treatment, except to members of the examining or treating team, without the informed written consent of the defendant, who is competent at the time of giving such consent.     (c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him that he may refuse to cooperate with the person conducting the examination, but that his refusal may be admissible into evidence on the issue of his mental or physical condition. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑15) (from Ch. 38, par. 104‑15)     Sec. 104‑15. Report.) (a) The person or persons conducting an examination of the defendant, pursuant to paragraph (a) or (b) of Section 104‑13 shall submit a written report to the court, the State, and the defense within 30 days of the date of the order. 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.     (b) If the report indicates that the defendant is not fit to stand trial or to plead because of a disability, the report shall include an opinion as to the likelihood of the defendant attaining fitness within one year if provided with a course of treatment. If the person or persons preparing the report are unable to form such an opinion, the report shall state the reasons therefor. The report may include a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate.     (c) The report shall indicate what information, if any, contained therein may be harmful to the mental condition of the defendant if made known to him. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑16) (from Ch. 38, par. 104‑16)     Sec. 104‑16. Fitness Hearing.) (a) The court shall conduct a hearing to determine the issue of the defendant's fitness within 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it, subject to continuances allowed pursuant to Section 114‑4 of this Act.     (b) Subject to the rules of evidence, matters admissible on the issue of the defendant's fitness include, but are not limited to, the following:     (1) The defendant's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;     (2) The defendant's ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel;     (3) The defendant's social behavior and abilities; orientation as to time and place; recognition of persons, places and things; and performance of motor processes.     (c) The defendant has the right to be present at every hearing on the issue of his fitness. The defendant's presence may be waived only if there is filed with the court a certificate stating that the defendant is physically unable to be present and the reasons therefor. The certificate shall be signed by a licensed physician who, within 7 days, has examined the defendant.     (d) On the basis of the evidence before it, the court or jury shall determine whether the defendant is fit to stand trial or to plead. If it finds that the defendant is unfit, the court or the jury shall determine whether there is substantial probability that the defendant, if provided with a course of treatment, will attain fitness within one year. If the court or the jury finds that there is not a substantial probability, the court shall proceed as provided in Section 104‑23. If such probability is found or if the court or the jury is unable to determine whether a substantial probability exists, the court shall order the defendant to undergo treatment for the purpose of rendering him fit. In the event that a defendant is ordered to undergo treatment when there has been no determination as to the probability of his attaining fitness, the court shall conduct a hearing as soon as possible following the receipt of the report filed pursuant to paragraph (d) of Section 104‑17, unless the hearing is waived by the defense, and shall make a determination as to whether a substantial probability exists.     (e) An order finding the defendant unfit is a final order for purposes of appeal by the State or the defendant. (Source: P.A. 81‑1217.)

    (725 ILCS 5/104‑17)(from Ch. 38, par. 104‑17)
    Sec. 104‑17. Commitment for Treatment; Treatment Plan.
    (a) If the defendant is eligible to be or has been released on bail or on his own recognizance, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment plan.
    (b) If the defendant's disability is mental, the court may order him placed for treatment in the custody of the Department of Human Services, or the court may order him placed in the custody of any other appropriate public or private mental health facility or treatment program which has agreed to provide treatment to the defendant. If the defendant is placed in the custody of the Department of Human Services, the defendant shall be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary. During the period of time required to determine the appropriate placement the defendant shall remain in jail. If upon the completion of the placement process the Department of Human Services determines that the defendant is currently fit to stand trial, it shall immediately notify the court and shall submit a written report within 7 days. In that circumstance the placement shall be held pending a court hearing on the Department's report. Otherwise, upon completion of the placement process, the sheriff shall be notified and shall transport the defendant to the designated facility. The placement may be ordered either on an inpatient or an outpatient basis.
    (c) If the defendant's disability is physical, the court may order him placed under the supervision of the Department of Human Services which shall place and maintain the defendant in a suitable treatment facility or program, or the court may order him placed in an appropriate public or private facility or treatment program which has agreed to provide treatment to the defendant. The placement may be ordered either on an inpatient or an outpatient basis.
    (d) The clerk of the circuit court shall transmit to the Department, agency or institution, if any, to which the defendant is remanded for treatment, the following:
        (1) a certified copy of the order to undergo

treatment;

(2) the county and municipality in which the offense

was committed;

(3) the county and municipality in which the arrest

took place;

(4) a copy of the arrest report, criminal charges,

arrest record, jail record, and the report prepared under Section 104‑15; and

(5) all additional matters which the Court directs

the clerk to transmit.

(e) Within 30 days of entry of an order to undergo treatment, the person supervising the defendant's treatment shall file with the court, the State, and the defense a report assessing the facility's or program's capacity to provide appropriate treatment for the defendant and indicating his opinion as to the probability of the defendant's attaining fitness within a period of one year from the date of the finding of unfitness. If the report indicates that there is a substantial probability that the defendant will attain fitness within the time period, the treatment supervisor shall also file a treatment plan which shall include:         (1) A diagnosis of the defendant's disability;         (2) A description of treatment goals with respect to

rendering the defendant fit, a specification of the proposed treatment modalities, and an estimated timetable for attainment of the goals;

(3) An identification of the person in charge of

supervising the defendant's treatment.

(Source: P.A. 95‑296, eff. 8‑20‑07; 96‑310, eff. 8‑11‑09.)

(725 ILCS 5/104‑18) (from Ch. 38, par. 104‑18)     Sec. 104‑18. Progress Reports.) (a) The treatment supervisor shall submit a written progress report to the court, the State, and the defense:     (1) At least 7 days prior to the date for any hearing on the issue of the defendant's fitness;     (2) Whenever he believes that the defendant has attained fitness;     (3) Whenever he believes that there is not a substantial probability that the defendant will attain fitness, with treatment, within one year from the date of the original finding of unfitness.     (b) The progress report shall contain:     (1) The clinical findings of the treatment supervisor and the facts upon which the findings are based;     (2) The opinion of the treatment supervisor as to whether the defendant has attained fitness or as to whether the defendant is making progress, under treatment, toward attaining fitness within one year from the date of the original finding of unfitness;     (3) If the defendant is receiving medication, information from the prescribing physician indicating the type, the dosage and the effect of the medication on the defendant's appearance, actions and demeanor. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑19) (from Ch. 38, par. 104‑19)     Sec. 104‑19. Records.) Any report filed of record with the court concerning diagnosis, treatment or treatment plans made pursuant to this Article shall not be placed in the defendant's court record but shall be maintained separately by the clerk of the court and shall be available only to the court or an appellate court, the State and the defense, a facility or program which is providing treatment to the defendant pursuant to an order of the court or such other persons as the court may direct. (Source: P.A. 81‑1217.)

    (725 ILCS 5/104‑20)(from Ch. 38, par. 104‑20)
    Sec. 104‑20. Ninety‑Day Hearings; Continuing Treatment.)
    (a) Upon entry or continuation of any order to undergo treatment, the court shall set a date for hearing to reexamine the issue of the defendant's fitness not more than 90 days thereafter. In addition, whenever the court receives a report from the supervisor of the defendant's treatment pursuant to subparagraph (2) or (3) of paragraph (a) of Section 104‑18, the court shall forthwith set the matter for a first hearing within 21 days unless good cause is demonstrated why the hearing cannot be held. On the date set or upon conclusion of the matter then pending before it, the court, sitting without a jury, shall conduct a hearing, unless waived by the defense, and shall determine:
        (1) Whether the defendant is fit to stand trial or to

plead; and if not,

(2) Whether the defendant is making progress under

treatment toward attainment of fitness within one year from the date of the original finding of unfitness.

(b) If the court finds the defendant to be fit pursuant to this Section, the court shall set the matter for trial; provided that if the defendant is in need of continued care or treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment of the defendant by the facility or program pending the conclusion of the criminal proceedings.     (c) If the court finds that the defendant is still unfit but that he is making progress toward attaining fitness, the court may continue or modify its original treatment order entered pursuant to Section 104‑17.     (d) If the court finds that the defendant is still unfit and that he is not making progress toward attaining fitness such that there is not a substantial probability that he will attain fitness within one year from the date of the original finding of unfitness, the court shall proceed pursuant to Section 104‑23. However, if the defendant is in need of continued care and treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment by the facility or program pending the conclusion of the criminal proceedings. (Source: P.A. 94‑191, eff. 7‑12‑05.)

(725 ILCS 5/104‑21) (from Ch. 38, par. 104‑21)     Sec. 104‑21. Medication.     (a) A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications.     (b) Whenever a defendant who is receiving medication under medical direction is transferred between a place of custody and a treatment facility or program, a written report from the prescribing physician shall accompany the defendant. The report shall state the type and dosage of the defendant's medication and the duration of the prescription. The chief officer of the place of custody or the treatment supervisor at the facility or program shall insure that such medication is provided according to the directions of the prescribing physician or until superseded by order of a physician who has examined the defendant. (Source: P.A. 89‑428, eff. 12‑13‑95; 89‑689, eff. 12‑31‑96.)

(725 ILCS 5/104‑22) (from Ch. 38, par. 104‑22)     Sec. 104‑22. Trial with special provisions and assistance.) (a) On motion of the defendant, the State or on the court's own motion, the court shall determine whether special provisions or assistance will render the defendant fit to stand trial as defined in Section 104‑10.     (b) Such special provisions or assistance may include but are not limited to:     (1) Appointment of qualified translators who shall simultaneously translate all testimony at trial into language understood by the defendant.     (2) Appointment of experts qualified to assist a defendant who because of a disability is unable to understand the proceedings or communicate with his or her attorney.     (c) The case may proceed to trial only if the court determines that such provisions or assistance compensate for a defendant's disabilities so as to render the defendant fit as defined in Section 104‑10. In such cases the court shall state for the record the following:     (1) The qualifications and experience of the experts or other persons appointed to provide special assistance to the defendant;     (2) The court's reasons for selecting or appointing the particular experts or other persons to provide the special assistance to the defendant;     (3) How the appointment of the particular expert or other persons will serve the goal of rendering the defendant fit in view of the appointee's qualifications and experience, taken in conjunction with the particular disabilities of the defendant; and     (4) Any other factors considered by the court in appointing that individual. (Source: P.A. 81‑1217.)

(725 ILCS 5/104‑23) (from Ch. 38, par. 104‑23)     Sec. 104‑23. Unfit defendants. Cases involving an unfit defendant who demands a discharge hearing or a defendant who cannot become fit to stand trial and for whom no special provisions or assistance can compensate for his disability and render him fit shall proceed in the following manner:     (a) Upon a determination that there is not a substantial probability that the defendant will attain fitness within one year from the original finding of unfitness, a defendant or the attorney for the defendant may move for a discharge hearing pursuant to the provisions of Section 104‑25. The discharge hearing shall be held within 120 days of the filing of a motion for a discharge hearing, unless the delay is occasioned by the defendant.     (b) If at any time the court determines that there is not a substantial probability that the defendant will become fit to stand trial or to plead within one year from the date of the original finding of unfitness, or if at the end of one year from that date the court finds the defendant still unfit and for whom no special provisions or assistance can compensate for his disabilities and render him fit, the State shall request the court:         (1) To set the matter for hearing pursuant to

Section 104‑25 unless a hearing has already been held pursuant to paragraph (a) of this Section; or

(2) To release the defendant from custody and to

dismiss with prejudice the charges against him; or

(3) To remand the defendant to the custody of the

Department of Human Services and order a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code, as now or hereafter amended. The Department of Human Services shall have 7 days from the date it receives the defendant to prepare and file the necessary petition and certificates that are required for commitment under the Mental Health and Developmental Disabilities Code. If the defendant is committed to the Department of Human Services pursuant to such hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the defendant, with the leave to reinstate. In such cases the Department of Human Services shall notify the court, the State's attorney and the defense attorney upon the discharge of the defendant. A former defendant so committed shall be treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge. A defendant who is not committed shall be remanded to the court having jurisdiction of the criminal matter for disposition pursuant to subparagraph (1) or (2) of paragraph (b) of this Section.

(c) If the defendant is restored to fitness and the original charges against him are reinstated, the speedy trial provisions of Section 103‑5 shall commence to run. (Source: P.A. 89‑439, eff. 6‑1‑96; 89‑507, eff. 7‑1‑97.)

(725 ILCS 5/104‑24) (from Ch. 38, par. 104‑24)     Sec. 104‑24. Time Credit. Time spent in custody pursuant to orders issued under Section 104‑17 or 104‑20 or pursuant to a commitment to the Department of Human Services following a finding of unfitness or incompetency under prior law, shall be credited against any sentence imposed on the defendant in the pending criminal case or in any other case arising out of the same conduct. (Source: P.A. 89‑507, eff. 7‑1‑97.)

    (725 ILCS 5/104‑25)(from Ch. 38, par. 104‑25)
    Sec. 104‑25. Discharge hearing.
    (a) As provided for in paragraph (a) of Section 104‑23 and subparagraph (1) of paragraph (b) of Section 104‑23 a hearing to determine the sufficiency of the evidence shall be held. Such hearing shall be conducted by the court without a jury. The State and the defendant may introduce evidence relevant to the question of defendant's guilt of the crime charged.
    The court may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents.
    (b) If the evidence does not prove the defendant guilty beyond a reasonable doubt, the court shall enter a judgment of acquittal; however nothing herein shall prevent the State from requesting the court to commit the defendant to the Department of Human Services under the provisions of the Mental Health and Developmental Disabilities Code.
    (c) If the defendant is found not guilty by reason of insanity, the court shall enter a judgment of acquittal and the proceedings after acquittal by reason of insanity under Section 5‑2‑4 of the Unified Code of Corrections shall apply.
    (d) If the discharge hearing does not result in an acquittal of the charge the defendant may be remanded for further treatment and the one year time limit set forth in Section 104‑23 shall be extended as follows:
        (1) If the most serious charge upon which the State

sustained its burden of proof was a Class 1 or Class X felony, the treatment period may be extended up to a maximum treatment period of 2 years; if a Class 2, 3, or 4 felony, the treatment period may be extended up to a maximum of 15 months;

(2) If the State sustained its burden of proof on a

charge of first degree murder, the treatment period may be extended up to a maximum treatment period of 5 years.

(e) Transcripts of testimony taken at a discharge hearing may be admitted in evidence at a subsequent trial of the case, subject to the rules of evidence, if the witness who gave such testimony is legally unavailable at the time of the subsequent trial.     (f) If the court fails to enter an order of acquittal the defendant may appeal from such judgment in the same manner provided for an appeal from a conviction in a criminal case.     (g) At the expiration of an extended period of treatment ordered pursuant to this Section:         (1) Upon a finding that the defendant is fit or can

be rendered fit consistent with Section 104‑22, the court may proceed with trial.

(2) If the defendant continues to be unfit to stand

trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Human Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding. During this period of commitment, the original court having jurisdiction over the defendant shall hold hearings under clause (i) of this paragraph (2). However, if the defendant is remanded to the Department of Human Services, the defendant shall be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary.

If the defendant does not have a current treatment

plan, then within 3 days of admission under this subdivision (g)(2), a treatment plan shall be prepared for each defendant and entered into his or her record. The plan shall include (i) an assessment of the defendant's treatment needs, (ii) a description of the services recommended for treatment, (iii) Illinois Forms by Issue Illinois Court Forms > Garnishment Illinois Emancipation Forms Illinois Family Forms Illinois Guardianship Forms Illinois Name Change Forms Illinois Tax Forms Illinois Law Illinois State Laws     > Illinois Child Support     > Illinois Gun Law     > Illinois Statutes Illinois Tax     > Illinois State Tax Illinois Court     > Escobedo v. Illinois     > Munn v. Illinois Illinois Labor Laws     > Illinois Unemployment     > Minimum Wage in Illinois Illinois Agencies     > Better Business Bureau Illinois     > Illinois Board of Education     > Illinois Department of Corrections     > Illinois Department of Human Services     > Illinois Department of Insurance     > Illinois Department of Natural Resources     > Illinois Department of Professional Regulation     > Illinois Department of Public Health     > Illinois Department of Revenue     > Illinois Department of Transportation     > Illinois DMV     > Illinois Secretary of State     > Illinois State Police Illinois Court Map Disclaimer All information on our site are collected from Internet. Please contact us if any information is a violation of your rights, we will remove them from our site. You can send email to: [e-mail]. Copyright © 2010-2022 Laws-info.com | All rights reserved. Tips