He argues the adjudication of competency was invalid because he could not waive a jury trial while under an incompetency judgment and his counsel could not do it for him. In support of his contention the defendant relies on the decision in People v. Johnson (1973), 15 Ill. App.3d 680, wherein the appellate court reversed a conviction for armed robbery on the ground that no valid restoration hearing adjudging the defendant competent to stand trial was held subsequent to a hearing adjudging him incompetent. The State argues the Johnson opinion is erroneous and urges us to disregard it.
This presumption continues until there has been a valid subsequent hearing adjudicating him fit. People v. Williams (1980), 92 Ill. App.3d 608, 612; People v. Johnson (1973), 15 Ill. App.3d 680, 685, 687, 304 N.E.2d 688; People v. McKinstray (1964), 30 Ill.2d 611, 617, 198 N.E.2d 829. • 1, 2 The defendant contends that the May 27, 1977, pretrial hearing accorded him was not a valid or sufficient fitness hearing.
Defendants submit that the appellate court's decisions are consistent with People v. Reeves (1952), 412 Ill. 555, and its progeny. See, e.g., People v. Johnson (1973), 15 Ill. App.3d 680. In People v. Reeves (1952), 412 Ill. 555, 560-61, in reversing a finding, based on a directed verdict, that defendant had been restored to sanity, the court said:
ial judge regarding defendant's present sanity or competence to stand trial, it becomes his duty to certify the defendant for a sanity hearing; the matter is jurisdictional and cannot be waived by defendant or his counsel’); Miller v. State, 498 S.W.2d 79 (Mo. App. 1973) (trial counsel held to be ineffective because he purported to waive a competency determination and allow the defendant to plead guilty); Demos v. Johnson, 835 F.2d 840 (11th Cir. 1988), cert. denied, 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed. 2d 229 (Ala. 1988) (despite defendant's statement that he was capable of assisting in his defense, the failure of the trial court ‘to grant a psychiatric examination or to make further inquiry into the accused's competence constituted a Pate violation and denied him a fair trial’ under federal and Alabama law); People v. Lowe, 109 A.D.2d 300, 491 N.Y.S.2d 529 (1985) (incompetent defendant cannot waive safeguards enacted to ensure that an incompetent person cannot be convicted); People v. Johnson, 15 Ill. App. 3d 680, 304 N.E.2d 688 (1973) (neither defendant nor trial counsel could waive defendant's right to jury trial in restoration hearing to determine the defendant's competency); Adams v. Wainwright, 764 F.2d 1356 (11th Cir.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed. 2d 805 (1986) ; (right to a competency hearing cannot [be] waived) )."Roy, 680 So.2d at 938–39.
" Reeves , 412 Ill. at 561, 107 N.E.2d 861.See also People v. Johnson , 15 Ill.App.3d 680, 686, 304 N.E.2d 688 (1973).¶ 32 III. CONCLUSION
of the trial judge regarding defendant's present sanity or competence to stand trial, it becomes his duty to certify the defendant for a sanity hearing; the matter is jurisdictional and cannot be waived by defendant or his counsel"); Miller v. State, 498 S.W.2d 79 (Mo.App. 1973) (trial counsel held to be ineffective because he purported to waive a competency determination and allow the defendant to plead guilty); Demos v. Johnson, 835 F.2d 840 (11th Cir.), cert. denied, 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed.2d 229 (Ala. 1988). (despite defendant's statement that he was capable of assisting in his defense, the failure of the trial court "to grant a psychiatric examination or to make further inquiry into the accused's competence constituted a Pate violation and denied him a fair trial" under federal and Alabama law); People v. Lowe, 109 A.D.2d 300, 491 N.Y.S.2d 529 (1985) (incompetent defendant cannot waive safeguards enacted to ensure that an incompetent person cannot be convicted); People v. Johnson, 15 Ill. App.3d 680, 304 N.E.2d 688 (1973) (neither defendant nor trial counsel could waive defendant's right to jury trial in restoration hearing to determine the defendant's competency); Adams v. Wainwright, 764 F.2d 1356 (11th Cir. 1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); (right to a competency hearing cannot waived).
• 2 A prior adjudication of unfitness raises the presumption that a defendant remains unfit and the presumption continues until there has been a valid hearing finding him fit. ( People v. Williams (1980), 92 Ill. App.3d 608, 612, 415 N.E.2d 1192.) This presumption continues until there has been a valid subsequent hearing adjudicating him fit. ( People v. Johnson (1973), 15 Ill. App.3d 680, 685, 687, 304 N.E.2d 688.) Given this presumption of unfitness, a finding of fitness may not be based on a stipulation to psychiatric conclusions. ( People v. Greene (1981), 102 Ill. App.3d 639, 643, 430 N.E.2d 219.)
" 412 Ill. 555, 560. Further, Illinois courts have held that an initial adjudication of unfitness creates a presumption that the defendant remains unfit which continues until there has been a valid subsequent hearing adjudicating him fit. ( People v. Greene (1981), 102 Ill. App.3d 639, 430 N.E.2d 219; People v. Williams (1980), 92 Ill. App.3d 608, 415 N.E.2d 1192; People v. Johnson (1973), 15 Ill. App.3d 680, 304 N.E.2d 688.) The procedural requirements of a restoration hearing are equally as stringent as those of an initial competency hearing and the trial record must affirmatively show the exercise of judicial discretion where a finding of fitness is made.
( People v. Lang (1975), 26 Ill. App.3d 648, 653, 325 N.E.2d 305; People v. Santoro (1973), 13 Ill. App.3d 426, 301 N.E.2d 175; People ex rel. Suddeth v. Rednour (1965), 33 Ill.2d 278, 285, 211 N.E.2d 281.) This presumption continues until there has been a valid subsequent hearing adjudicating him fit. ( People v. Johnson (1973), 15 Ill. App.3d 680, 685, 687, 304 N.E.2d 688; People v. McKinstray (1964), 30 Ill.2d 611, 617, 198 N.E.2d 829; People v. Reeves (1952), 412 Ill. 555, 560, 107 N.E.2d 861.) Although there is no longer a statutory right to a jury trial in a restoration hearing (Ill. Rev. Stat. 1975, ch. 38, par. 1005-5-2(b); People v. Manning (1979), 76 Ill.2d 235, 390 N.E.2d 903), all of the previously cited cases envision an adversarial hearing and have disapproved of verdicts of fitness based solely upon unsupported stipulations, agreements pleas made by the accused or his counsel. • 2 Here, the People argue that there was a judicial finding of fitness on November 9, 1978, but an examination of the transcript of the proceedings for that date does not support this argument.
Delay so occasioned cannot be relied on as error. See People v. Johnson (1973), 15 Ill. App.3d 680, 304 N.E.2d 688. After the denial of Brown's motion for reinstatement and back pay, he filed other prehearing motions which substantially contributed to the delay in initiating a hearing.