                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Sedlacek, 2013 IL App (5th) 120106




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                     TERRY J. SEDLACEK, Defendant-Appellee.



District & No.              Fifth District
                            Docket No. 5-12-0106


Filed                       March 28, 2013


Held                        The judgment affirming defendant’s motion for a summary determination
(Note: This syllabus        of his fitness to stand trial and limiting the State’s proposed examination
constitutes no part of      to the issue of defendant’s sanity at the time of his alleged offenses was
the opinion of the court    upheld, but the portion of the trial court’s order requiring that the
but has been prepared       examination be video-recorded pursuant to section 103-2.1 of the Code
by the Reporter of          of Criminal Procedure was reversed, since the examination will be
Decisions for the           performed in a mental health facility, not a “place of detention,” and the
convenience of the          cause was remanded for a discharge hearing pursuant to section 104-25
reader.)
                            of the Code.


Decision Under              Appeal from the Circuit Court of Madison County, No. 09-CF-540; the
Review                      Hon. Richard L. Tognarelli, Judge, presiding.



Judgment                    Affirmed in part and reversed in part; cause remanded.
Counsel on                 Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino,
Appeal                     Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.

                           John J. Rekowski, Public Defender, of Edwardsville (Ronald R. Slemer,
                           Assistant Public Defender, of counsel), and Curtis L. Blood, of
                           Collinsville, for appellee.


Panel                      JUSTICE WEXSTTEN delivered the judgment of the court, with
                           opinion.
                           Justices Welch and Goldenhersh concurred in the judgment and opinion.




                                             OPINION

¶1          The State appeals the trial court’s order entering summary judgment in favor of the
        defendant on the issue of his fitness to stand trial and granting the defendant’s request that
        the State record and limit the scope of its proposed evaluation of the defendant’s mental
        status. For the reasons that follow, we affirm in part and reverse in part.

¶2                                         BACKGROUND
¶3          In March 2009, the defendant, Terry J. Sedlacek, was arrested and charged with two
        counts of aggravated battery (720 ILCS 5/12-4(b)(1) (West 2008)) and two counts of first-
        degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). The record indicates that
        following his arrest, the defendant was transported to St. Louis University Hospital, where
        he received both medical and psychological treatment.
¶4          In July 2009, alleging that he suffered from schizophrenia, the defendant filed a motion
        to determine his fitness to stand trial pursuant to article 104 of the Code of Criminal
        Procedure of 1963 (article 104) (725 ILCS 5/art. 104 (West 2008)). The defendant’s motion
        requested that the court appoint an expert to examine him (see 725 ILCS 5/104-11(b), 104-
        13(a) (West 2008)) and that a fitness hearing follow the filing of the expert’s report (see 725
        ILCS 5/104-15, 104-16 (West 2008)). In a discovery answer, the defendant also advised the
        State that he might raise the affirmative defense of insanity (720 ILCS 5/6-2 (West 2008)).
¶5          In September 2009, the trial court appointed Dr. Robert Heilbronner to examine the
        defendant to determine his fitness to stand trial. See 725 ILCS 5/104-13(a) (West 2008). In
        October 2009, Dr. Heilbronner submitted two reports to the trial court, and the court ordered
        that the reports be placed under seal. See 725 ILCS 5/104-19 (West 2008). At a subsequent
        fitness hearing, the parties stipulated that if called to testify, Heilbronner would opine that

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       to a reasonable degree of scientific certainty, the defendant suffers from schizophrenia and
       would have difficulties understanding and participating in the proceedings against him. The
       parties further stipulated that Heilbronner would testify that the defendant would be unable
       to assist his attorneys in the preparation of a defense and that it could not reliably be
       determined whether the defendant would attain fitness to stand trial within one year. On
       October 20, 2009, referencing the parties’ stipulations, the trial court entered an order finding
       the defendant unfit to stand trial and remanding him to the custody of the Department of
       Human Services (DHS) for treatment. See 725 ILCS 5/104-16(d), 104-17(b) (West 2008).
¶6          In December 2009, DHS submitted a report and treatment plan to the trial court pursuant
       to article 104. See 725 ILCS 5/104-17(e) (West 2008). Noting, inter alia, that the defendant
       had been “[r]eceiving psychiatric treatment since age 17,” the report advised that the
       defendant suffered from chronic schizophrenia. The report concluded, however, that the
       defendant would likely achieve fitness “within one year.” In a January 2010 progress report
       (see 725 ILCS 5/104-18 (West 2008)), DHS opined that the defendant was still unfit to stand
       trial but “may be restored to fitness within a year as statutorily allowed.”
¶7          In June 2010, DHS submitted two progress reports, one of which indicated that the
       defendant was fit to stand trial and one of which indicated he was not. In July 2010,
       referencing the conflicting June 2010 reports, the trial court entered an order stating that
       further proceedings would be stayed until it received a progress report indicating that the
       defendant had attained fitness.
¶8          On October 19, 2010, DHS submitted a progress report stating its opinion that “there
       [was] not a substantial probability that [the defendant would] attain fitness within a period
       of one year from the date of the original finding of unfitness.” The report further noted that
       the defendant’s “one[-]year term of being found unfit [had] expire[d] on October 20, 2010.”
¶9          On December 9, 2010, the State filed a request for a status hearing, asking that the trial
       court set the matter for a “first hearing” pursuant to section 104-20(a) of the Code of
       Criminal Procedure of 1963 (725 ILCS 5/104-20(a) (West 2008)). On December 28, 2010,
       DHS submitted a progress report concluding, “[The defendant] remains unfit to stand trial
       and is unlikely to attain fitness within the statutory time period.” The December 2010
       progress report further indicated that pursuant to section 104-20, the defendant’s cause
       should proceed to a discharge hearing. The record indicates that the trial court never held a
       “first hearing” as the State requested. It is undisputed that the defendant is still in DHS
       custody at its mental health facility in Alton.
¶ 10        In March 2011, DHS submitted a progress report advising that the defendant was still
       unfit to stand trial. The report further indicated that pursuant to section 104-20, the
       defendant’s cause should proceed to a discharge hearing. DHS reports concluding that the
       defendant remained unfit to stand trial were subsequently filed in July, September, and
       December 2011. Noting that the defendant’s “one[-]year term of being found unfit [had]
       expired on October 20, 2010,” those reports also stated the obvious conclusion that “there
       [was] not a substantial probability that he [would] attain fitness within a period of one year
       from the date of the original finding of unfitness.”
¶ 11        In April 2011, the State filed a motion requesting that the defendant be evaluated by its


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       retained expert, Dr. Mathew Markos, Cook County’s director of forensic services. The
       motion stated that the evaluation would be “for the purpose of assessing the defendant’s
       fitness to stand trial and assessing whether the defendant was not guilty by reason of
       insanity.” In May 2011, at a hearing on the motion, defense counsel stated that he did not
       object to the State’s proposed examination, but he asked that the trial court order that the
       exam be video-recorded pursuant to section 103-2.1 of the Code of Criminal Procedure of
       1963 (725 ILCS 5/103-2.1 (West 2008)). The State objected, arguing that section 103-2.1
       was inapplicable under the circumstances. Asserting, inter alia, that many mentally ill
       defendants are “minimally cooperative” with court-ordered psychological examinations in
       the first place, the State further argued that the presence of a camera or recording device
       might “intrude on the evaluation itself.” Citing section 103-2.1, the trial court ultimately
       ordered that Markos’s examination of the defendant be audio-recorded. The State
       subsequently filed a motion to reconsider, again maintaining that section 103-2.1 was
       inapplicable under the circumstances.
¶ 12        In November 2011, the State filed an amended motion asking the trial court to reconsider
       its order requiring that Markos’s proposed examination be recorded pursuant to section 103-
       2.1. The State’s motion asserted that Markos had advised that he would not examine the
       defendant if the examination had to be recorded, because “the presence or use of recording
       equipment [would] hinder his examination and prevent him from effectively examining the
       defendant.”
¶ 13        In January 2012, the defendant filed an objection to the State’s request that the trial court
       reconsider its section 103-2.1 ruling. The defendant also filed a motion asking the trial court
       for a summary determination regarding his fitness to stand trial. In his objection to the State’s
       motion to reconsider, the defendant asserted that pursuant to section 103-2.1, Markos’s
       proposed examination would be a “classic custodial interrogation.” See Miranda v. Arizona,
       384 U.S. 436 (1966). The defendant further contended that the State was not authorized to
       independently seek an opinion as to the defendant’s fitness to stand trial and that Markos’s
       proposed examination should thus be limited “to the sole issue of the defendant’s
       sanity/insanity at the time of the offense[s].” The defendant accordingly asked the court to
       enter an order limiting the scope of the examination. Citing section 2-1005 of the Code of
       Civil Procedure (735 ILCS 5/2-1005 (West 2010)), the defendant’s motion for summary
       determination requested that the trial court enter an order finding that he was unfit to stand
       trial and would “not obtain fitness within one year.” The motion asserted that “there was no
       genuine issue as to the facts.”
¶ 14        The cause subsequently proceeded to a joint hearing on the State’s amended motion to
       reconsider and the defendant’s motion for summary determination. In support of its motion
       asking the trial court to reconsider its order requiring that Markos’s proposed examination
       be recorded pursuant to section 103-2.1, the State argued, inter alia, that under the plain
       language of the statute, the examination would not constitute an “interrogation” in a “place
       of detention.” In response, defense counsel reiterated its position that the proposed
       examination was precisely the “type of interrogation” contemplated by section 103-2.1.
       Defense counsel further maintained that recording the examination would not require “a big
       invasive camera” and that it would be “no big deal to punch the button on a tape recorder”

                                                  -4-
       at the beginning of the exam.
¶ 15        With respect to the defendant’s request that the trial court limit Markos’s proposed
       examination to the issue of the defendant’s sanity at the time of the offense, the State argued
       that it should be given the opportunity to present evidence tending to dispute DHS’s
       determination that the defendant was unfit to stand trial. Defense counsel countered that the
       relevant statutes did not authorize the State to obtain an independent opinion regarding a
       defendant’s fitness.
¶ 16        In support of the defendant’s motion for summary determination, defense counsel argued
       that it was undisputed that the defendant was unfit to stand trial and would not likely “be
       restored to fitness within a year.” Defense counsel further argued that the rules of civil
       procedure were wholly applicable under the circumstances and that it was time to “proceed
       to a discharge hearing.” See 725 ILCS 5/104-25 (West 2008). In response, the State
       maintained that it would be inappropriate for the court to enter a summary judgment on the
       issue of the defendant’s fitness to stand trial.
¶ 17        In February 2012, after taking the matter under advisement, the trial court entered a
       written order denying the State’s motion to reconsider and granting the defendant’s motion
       for a summary determination that he was unfit to stand trial. The trial court further ordered
       that Markos’s proposed examination be “limited to exploring and rendering an opinion on
       the issue of the defendant’s sanity and/or mental illness at the time of the alleged offense[s].”
       The trial court’s order indicated that the cause would be set for a discharge hearing once
       defense counsel received a copy of Markos’s examination report. The State subsequently
       filed a timely notice of appeal. See Ill. S. Ct. R. 604(a)(1), (e) (eff. July 1, 2006); R. 606(b)
       (eff. Mar. 20, 2009).

¶ 18                                      DISCUSSION
¶ 19      The State argues that the trial court erred in (1) ordering that Dr. Markos’s proposed
       examination of the defendant be audio-recorded pursuant to section 103-2.1, (2) limiting the
       examination to the issue of the defendant’s sanity at the time of the alleged offenses, and (3)
       granting summary judgment on the question of the defendant’s fitness to stand trial. We will
       address each contention in turn.

¶ 20                                        Section 103-2.1
¶ 21       The State argues that the trial court erred in ordering that Markos’s proposed examination
       be recorded pursuant to section 103-2.1, which the State has consistently maintained is
       inapplicable under the circumstances. In response, the defendant asserts, inter alia, that we
       have no jurisdiction to address the State’s complaint because the trial court’s order was not
       an order “suppressing evidence” for purposes of Illinois Supreme Court Rule 604(a)(1) (eff.
       July 1, 2006). We agree with the State.
               “Supreme Court Rule 604(a)(1) allows the State to obtain review of an ‘order or
           judgment the substantive effect of which results in *** suppressing evidence.’ [Citation.]
           ‘For the purposes of this aspect of Rule 604(a)(1), there is no substantive distinction


                                                 -5-
            between evidence that is “excluded” and evidence that is “suppressed.” ’ [Citation.]
            Thus, the pertinent question in determining whether jurisdiction exists under Rule
            604(a)(1) is whether the order, in fact, is one that suppresses or excludes evidence.”
            People v. Smith, 399 Ill. App. 3d 534, 537 (2010).
¶ 22        Where a defendant has given notice that he may assert the defense of insanity, the State
       is statutorily entitled to have an expert of its choice examine the defendant on the issue. 725
       ILCS 5/115-6 (West 2008). Here, the State has retained Dr. Markos to examine the defendant
       on the issue of insanity. Indicating that the presence of a recording device will interfere with
       the examination, however, Markos has advised that he will not conduct the exam if it has to
       be audio-recorded. Surreptitiously recording the examination would, of course, be illegal.
       See 720 ILCS 5/14-2(a) (West 2008). Under the circumstances, the substantive effect of the
       trial court’s section 103-2.1 ruling precludes the State from obtaining information that it
       might otherwise be entitled to use. “When an order prevents information from being
       presented to the fact finder, evidence is suppressed, and the State may appeal that order.”
       People v. Kruger, 327 Ill. App. 3d 839, 843 (2002). Moreover, in May 2012, when denying
       the defendant’s motion to dismiss the State’s appeal in the present case, we implicitly
       rejected the defendant’s argument that we are without jurisdiction to consider this issue. That
       ruling now stands as the law of the case (People v. Hopkins, 235 Ill. 2d 453, 469 (2009)), and
       we thus turn to the merits of the State’s argument.
¶ 23        Pursuant to section 103-2.1, statements made by a murder suspect during “a custodial
       interrogation at a police station or other place of detention shall be presumed to be
       inadmissible as evidence,” unless they are electronically recorded. 725 ILCS 5/103-2.1(b)
       (West 2008). The statute defines a “custodial interrogation” as “any interrogation during
       which (i) a reasonable person in the subject’s position would consider himself or herself to
       be in custody and (ii) *** a question is asked that is reasonably likely to elicit an
       incriminating response.” 725 ILCS 5/103-2.1(a) (West 2008). Section 103-2.1 thereby
       codifies “the common-law definition of custodial interrogation developed in Miranda and
       progeny.” People v. Harris, 2012 IL App (1st) 100678, ¶ 52. Section 103-2.1 defines “place
       of detention” as
            “a building or a police station that is a place of operation for a municipal police
            department or county sheriff department or other law enforcement agency, not a
            courthouse, that is owned or operated by a law enforcement agency at which persons are
            or may be held in detention in connection with criminal charges against those persons.”
            725 ILCS 5/103-2.1(a) (West 2008).
       The applicability of section 103-2.1 is an issue of statutory interpretation that is reviewed de
       novo. People v. Amigon, 239 Ill. 2d 71, 84 (2010).
¶ 24        Here, the trial court ordered that the State’s proposed examination take place at the Alton
       mental health facility, where the defendant is being held and treated. At the hearing on the
       State’s motion to reconsider, the parties stipulated that the Alton facility is not a “place of
       detention” as defined by section 103-2.1, and the trial court accepted the parties’ stipulation.
       Because the proposed examination will not be conducted in a “place of detention,” section
       103-2.1 is inapplicable, and we thus agree with the State that the trial court erred in ordering


                                                 -6-
       that the examination be recorded pursuant to section 103-2.1. We accordingly reverse that
       portion of the trial court’s order. That said, we need not address the State’s contention that
       a court-ordered psychological examination is not a “custodial interrogation” for purposes of
       section 103-2.1.

¶ 25                                       Insanity v. Fitness
¶ 26       The State argues that the trial court erred in limiting its proposed examination to the issue
       of the defendant’s sanity at the time of the alleged offenses. Asserting that it “is not required
       to accept the conclusions of DHS,” the State maintains that Markos should also be permitted
       to examine the defendant for the purpose of determining his fitness to stand trial. The
       defendant counters that the State is not statutorily authorized to seek a second opinion as to
       his fitness and that we should accordingly reject the State’s contention as the trial court did
       below. “The issue before us is one of statutory construction, and thus our review is de novo.”
       People v. Tidwell, 236 Ill. 2d 150, 156 (2010).
¶ 27       Article 104 “sets out a comprehensive scheme for criminal defendants found unfit to
       stand trial” (People v. McBrien, 144 Ill. App. 3d 489, 491-92 (1986)), and its provisions
       govern the procedures applicable to such defendants (In re Evelyn S., 337 Ill. App. 3d 1096,
       1103 (2003)). Article 104, section 104-13, subsection (a), specifically provides, “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.” 725 ILCS 5/104-13(a) (West 2008). Section 104-13
       further provides that at the defendant’s request, the trial court may, in its discretion, appoint
       “in addition to the expert or experts chosen pursuant to subsection (a) of this [s]ection, a
       qualified expert selected by the defendant to examine him.” 725 ILCS 5/104-13(e) (West
       2008); see also 725 ILCS 5/104-11(b) (West 2008). As the defendant observes, however,
       article 104 does not authorize the State to select an expert to independently examine a
       defendant regarding his fitness to stand trial. We recognize, as previously noted, that the
       State is entitled to have an expert of its choice examine a defendant who has given notice that
       he may assert the defense of insanity (see 725 ILCS 5/115-6 (West 2008)), but “fitness and
       insanity raise different inquiries” (People v. Burton, 184 Ill. 2d 1, 26 (1998)), and “there are
       significant differences between a claim of unfitness to stand trial and a plea of insanity”
       (People v. Clay, 361 Ill. App. 3d 310, 324 (2005)). “Fitness addresses a defendant’s ability
       to function and participate in court proceedings,” while “insanity involves whether a
       defendant, because of a mental disease or defect, lacks substantial capacity either to
       appreciate the criminality of his conduct or to conform his conduct to the requirements of the
       law.” Burton, 184 Ill. 2d at 26. A finding that a defendant is unfit to stand trial is not “proof
       of insanity at the time of the offense.” People v. Manns, 373 Ill. App. 3d 232, 240 (2007).
¶ 28       “The cardinal rule of statutory interpretation is to ascertain and give effect to the
       legislative intent, and the best indication of the legislative intent is the language used in the
       statute.” Bigelow Group, Inc. v. Rickert, 377 Ill. App. 3d 165, 169 (2007). Article 104 does
       not provide for a fitness examination by a State-chosen expert, and “[w]e cannot read words
       into a statute that are not there.” Chicago Tribune Co. v. Board of Education of the City of


                                                 -7-
       Chicago, 332 Ill. App. 3d 60, 67 (2002). The State suggests that it should be given the
       opportunity to challenge DHS’s findings that the defendant remains unfit to stand trial, but
       as the defendant candidly puts it, the State’s “gripe is with the legislature.” We also note that
       article 104 implicates due process concerns that do not apply to the State. See People v. Rink,
       97 Ill. 2d 533, 543-44 (1983); People v. Christy, 206 Ill. App. 3d 361, 367 (1990).
¶ 29        As a matter of statutory construction, we conclude that article 104 does not provide for
       a fitness examination by an expert chosen by the State. The trial court thus properly limited
       Markos’s proposed examination to the issue of the defendant’s sanity at the time of the
       alleged offenses, and we accordingly affirm that portion of the trial court’s order.

¶ 30                                      Summary Judgment
¶ 31        When granting the defendant’s motion for a summary determination as to his fitness to
       stand trial, the court determined that the defendant was unfit, that no special provisions could
       compensate for his disability, and that there was not a reasonable probability that he would
       attain fitness within one year. The trial court then indicated that in light of these findings, the
       matter would be set for a discharge hearing once defense counsel received a copy of
       Markos’s examination report. On appeal, the State argues that the trial court acted without
       authority when entering summary judgment on the issue of the defendant’s fitness to stand
       trial. We disagree and conclude that the summary judgment was essentially a clarification
       as to the status of the case and that the clarification properly triggered further proceedings
       pursuant to article 104.
¶ 32        As previously indicated, the trial court originally found the defendant unfit to stand trial
       on October 20, 2009. Because on the evidence before it, the trial court was unable to
       determine whether there was a substantial probability that the defendant would attain fitness
       to stand trial within one year of that date, the court remanded him to DHS custody for
       treatment. See 725 ILCS 5/104-16(d), 104-17(b) (West 2008). Thereafter, DHS submitted
       a treatment plan and numerous progress reports (see 725 ILCS 5/104-17(e), 104-18 (West
       2008)), and from December 2009 to June 2010, when the conflicting reports arose, it
       appeared that the defendant would attain fitness within one year from the date of the original
       finding of unfitness, i.e., by October 20, 2010. On October 19, 2010, however, DHS
       submitted a progress report opining that there was not a substantial probability that the
       defendant would attain fitness by that date. Additionally, in reports filed in December 2010
       and March, July, September, and December 2011, DHS concluded that the defendant
       remained unfit to stand trial. Those reports also noted that the defendant’s “one[-]year term
       of being found unfit [had] expired on October 20, 2010.”
¶ 33        Pursuant to section 104-20, a defendant ordered to undergo treatment for the purpose of
       rendering him fit to stand trial is entitled to a status hearing every 90 days. 725 ILCS 5/104-
       20(a) (West 2008); In re Evelyn S., 337 Ill. App. 3d at 1104. At a 90-day hearing, if the trial
       court finds that a defendant is still unfit to stand trial, the court must determine “[w]hether
       the defendant is making progress under treatment toward attainment of fitness within one
       year from the date of the original finding of unfitness.” 725 ILCS 5/104-20(a) (West 2008).
       Whenever the trial court receives a report from DHS stating that there is not a substantial


                                                  -8-
       probability that he will attain fitness “within one year from the date of the original finding
       of unfitness,” a defendant ordered to undergo treatment is also entitled to a “first hearing.”
       725 ILCS 5/104-18(a)(3), 104-20(a) (West 2008). At either hearing, if the trial court
       determines that there is not a substantial probability that the defendant will attain fitness
       within one year from the date of the original finding of unfitness, “the court shall proceed
       pursuant to [s]ection 104-23.” 725 ILCS 5/104-20(d) (West 2008). Pursuant to section 104-
       23, upon a determination that there is not a substantial probability that the defendant will
       attain fitness within one year from the date of the original finding of unfitness, the defendant
       may move for a discharge hearing pursuant to section 104-25. 725 ILCS 5/104-23(a) (West
       2008). Moreover, pursuant to section 104-23, “any time” the trial court finds that there is not
       a substantial probability that the defendant will attain fitness 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,” the State “shall request” that the court either set the matter for a
       discharge hearing pursuant to section 104-25, release the defendant and dismiss the charges
       against him, or remand him to DHS custody for civil commitment proceedings. 725 ILCS
       5/104-23(a), (b) (West 2008). “Significantly, only if the State sustains its burden of proof at
       the discharge hearing may a defendant be remanded for a period of treatment longer than the
       one-year period from the finding of unfitness [provided] for in section 104-23.” McBrien,
       144 Ill. App. 3d at 493.
¶ 34        As a matter of statutory construction, it is clear that article 104 envisions that once it is
       determined that it is unlikely that an unfit defendant will attain fitness within one year after
       initially being found unfit, the cause must proceed to a discharge hearing. One of article
       104’s “primary objectives” is to ensure that a defendant deemed unfit to stand trial “will not
       be indeterminately institutionalized,” and “[t]he principal vehicle for achieving this objective
       is a ‘discharge hearing.’ ” Id. at 492.
¶ 35        Here, on October 20, 2009, the trial court made its original finding that the defendant was
       unfit to stand trial, and the defendant was remanded to DHS custody for treatment. The
       record indicates that in the year that followed, no 90-day hearings were held, and no action
       was taken on DHS’s October 19, 2010, progress report indicating that the defendant would
       not be fit to stand trial by October 20, 2010. In December 2010, the State filed its motion
       requesting a “first hearing” pursuant to section 104-20(a), but it does not appear that the
       requested hearing was ever held. Moreover, it does not appear that any action was ever taken
       on the subsequent DHS reports reiterating that the defendant’s “one[-]year term of being
       found unfit [had] expired on October 20, 2010,” or on the DHS report admonishing that
       pursuant to section 104-20, the defendant’s cause should proceed to a discharge hearing.
¶ 36        A motion for summary judgment should only be granted where the moving party
       demonstrates that there is no genuine issue of material fact and that it is “entitled to judgment
       as a matter of law.” Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). “Our
       review of an order granting summary judgment is de novo.” Id. at 424.
¶ 37        Here, when the trial court granted the defendant’s motion for a summary determination,
       over 27 months had passed since the defendant had originally been found unfit to stand trial;
       the defendant had not been restored to fitness during his initial one-year treatment term, and
       he remained unfit. As previously noted, article 104 envisions that once it is determined that

                                                  -9-
       a defendant is unfit and that there is not a reasonable probability that he will attain fitness
       within one year of the original finding of unfitness, the cause should proceed to a discharge
       hearing. Under the circumstances, whether we view the defendant’s request that the trial
       court rule on the matter as a motion for summary judgment brought pursuant to section 2-
       1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), as a motion to clarify
       the status of the fitness proceedings, or as a late motion requesting one of the numerous
       hearings that he was entitled to pursuant to section 104-20, the trial court did not err in
       entering a summary determination on the issue of the defendant’s fitness and ordering that
       the cause be set for a discharge hearing once defense counsel receives a copy of Dr. Markos’s
       examination report. Although lengthy delays in article 104 proceedings are frowned upon
       (see People v. Lavold, 262 Ill. App. 3d 984, 991 (1994)), and awaiting the receipt of
       Markos’s report will undoubtedly cause further delay, a defendant is entitled to assert the
       defense of insanity at a discharge hearing (see Manns, 373 Ill. App. 3d at 239-42), and the
       State is entitled to challenge that defense (see People v. Knuckles, 226 Ill. App. 3d 714, 720
       (1992), aff’d, 165 Ill. 2d 125 (1995)).
¶ 38       We lastly note that at a discharge hearing, if a defendant charged with first-degree murder
       is neither acquitted nor found not guilty by reason of insanity, the maximum extended
       treatment period that a trial court can impose is five years beyond the initial one-year
       treatment term. 725 ILCS 5/104-25(d)(2) (West 2008); Rink, 97 Ill. 2d at 538. However,
       “[t]he date of the trial court’s supervisory jurisdiction over the defendant begins to run from
       the date of the original finding of defendant’s unfitness.” Lavold, 262 Ill. App. 3d at 990.
       “The extended period for treatment would then begin or relate back to one year from the
       original finding of unfitness.” Id. Here, the defendant can thus be remanded to DHS custody
       for further treatment until October 19, 2015, at which time the trial court must determine
       whether he is subject to involuntary commitment. See id.; 725 ILCS 5/104-25(g) (West
       2008).

¶ 39                                      CONCLUSION
¶ 40       For the foregoing reasons, we affirm the trial court’s judgment granting the defendant’s
       motion for a summary determination as to his fitness to stand trial, and we further affirm the
       court’s judgment limiting the State’s proposed examination to the issue of the defendant’s
       sanity at the time of the alleged offenses. Given that the examination will be performed at
       the Alton mental health facility, however, it need not be recorded pursuant to section 103-
       2.1. We accordingly reverse that portion of the trial court’s order. The defendant’s cause is
       hereby remanded for a discharge hearing pursuant to section 104-25 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/104-25 (West 2008)). The hearing should be held as soon
       as possible following the receipt of Dr. Markos’s report.

¶ 41      Affirmed in part and reversed in part; cause remanded.




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