Sec. 104-16. Fitness Hearing.

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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.