People v. Tate, 2016 IL App (1st) 140598 (September). Episode 243 (Duration 2:43).
Aggravated robbery conviction is reversed after a bench trial and an SOJ violation.
A defendant has the absolute right to a substitution of judge upon the timely filing of a proper written motion for substitution. 725 ILCS 5/114-5(a).
An automatic substitution of judge must be granted if the defendant meets the following requirements:
(1) the motion is made within 10 days after defendant’s case is placed on the judge’s trial call,
(2) the motion names only one judge unless the defendant is charged with a Class X felony, in which case he may name two judges,
(3) the motion must be in writing, and
(4) the motion must allege the trial judge is so prejudiced against the defendant that the defendant cannot receive a fair trial.
Additionally, the motion must be made before the trial judge makes a substantive ruling in the case. The inquiry is to determine the earliest date on which defendant could be charged with knowledge of their judge assignment.
Even if the process for assigning defendant’s case did not adhere to the normal procedure described in the Rules of the Circuit Court of Cook County, the reviewing court nonetheless must determine whether defendant could be charged with notice of the assignment based on the proceedings that actually occurred.
At first, defendant was only told his courtroom number.
The reviewing court held that defendant did not have notice that Judge Kipperman had been assigned to his case. The court only mentioned the number of the courtroom for defendant’s next appearance but not the name of the judge who presided there.
Notwithstanding Castleberry, only the most “fundamental defects, i.e., lack of personal jurisdiction or lack of subject matter jurisdiction,” warrant declaring a judgment void.
Historically, courts in Illinois have held that, upon a timely filing of a proper written motion, a defendant has an absolute right to a substitution of judge and reversible error results if erroneously denied.
The reviewing court found that the improper denial of a defendant’s motion for a substitution of judge ranks among those types of “fundamental defects” most recently contemplated by our supreme court in Castleberry.
The reviewing court affirmed that when a motion for substitution of judge is improperly denied, all subsequent action by the trial judge, beyond transfer of the matter, is void.
Reversed and remanded for a new trial.