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Docket No. 96869-Agenda 9-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT HANSON, Appellee.

Opinion filed September 23, 2004.
 

JUSTICE KILBRIDE delivered the opinion of the court:

In this case, the primary issue we are asked to decide is whetherthe grant of a defense motion for a psychological examination, withoutmore, creates a sufficient inference that the trial court found bona fidedoubt of defendant's fitness to stand trial to require a remand for aretrospective fitness hearing. We hold that it does not.

BACKGROUND

In 2001, defendant Robert Hanson was indicted on charges ofaggravated battery (720 ILCS 5/12-4(b)(6) (West 2000)) andresisting a peace officer (720 ILCS 5/31-1(a) (West 2000)). Defensecounsel filed a written pretrial motion, citing section 13(a) of the Codeof Criminal Procedure of 1963 (Code) (725 ILCS 5/104-13(a) (West2000)), and requesting that defendant be examined "by an expert todetermine the Defendant's fitness to stand trial, as well as her [sic]mental condition at the time of the alleged offense." The motion alsonoted counsel's feeling that a bona fide doubt existed concerningdefendant's ability to understand the nature and purpose of theproceedings and to assist in his own defense. The State did not object,and the trial court granted the motion, changing the previouslyscheduled trial date to a date for the fitness hearing. Due to schedulingdifficulties with the appointed psychiatrist, the date for the fitnesshearing was changed twice. After completion of the examination,defense counsel informed the court that defendant had been found fitand withdrew the motion. The expert's report was not admitted intothe record. The trial court proceeded with a bench trial and founddefendant guilty of both charges, sentencing him to concurrent termsof five years in prison for aggravated battery and 364 days in jail forresisting a peace officer.

On appeal, the appellate court, with one justice dissenting, foundplain error, concluding that, pursuant to People v. Cleer, 328 Ill. App.3d 428 (2002), the grant of a fitness examination implicitlydemonstrated the trial judge's bona fide doubt concerning defendant'sfitness for trial. No. 3-02-0463 (unpublished order under SupremeCourt Rule 23). The majority held that because bona fide doubt waspresent, the trial court was obliged to hold a fitness hearing, even afterthe defense withdrew its motion. According to the court, since nofitness hearing was held in this case, defendant's due process rightshad been violated, and the appellate court remanded the cause for aretrospective fitness hearing. The dissenting justice maintained thatthere was no due process violation because the mere appointment ofan examining expert did not demonstrate the trial court's belief therewas bona fide doubt about defendant's fitness. Indeed, the dissentreasoned, because the expert had found defendant fit, the trial courtcould have properly declined to hold a hearing, particularly after thedefense motion was withdrawn. See People v. Kalwa, 306 Ill. App. 3d601, 603 (1999). This court allowed the State's timely petition forleave to appeal. 177 Ill. 2d R. 315(a).

ANALYSIS

The sole issue before this court is whether the appellate courterred by holding that the grant of defendant's request for a fitnessexamination implicitly signaled the trial court's belief that there wasa bona fide doubt as to defendant's fitness, necessitating a fitnesshearing. While defendant did not raise this issue in a posttrial motion,our waiver rule is a limitation on the parties and not on this court.People v. Donoho, 204 Ill. 2d 159, 169 (2003). Here, we will decidethe issue on its merits because it implicates defendant's substantialright in obtaining due process of law. See U.S. Const., amends. VI,XIV; Ill. Const. 1970, art. I,