The recent First District Appellate Court case of People v. Edmond Tate, 2016 IL. App (1st) 140598, highlights the importance of filing a desired substitution of judge motion on a timely basis. In this decision, a conviction for aggravated robbery, along with a 28-year prison sentence, was overturned on appeal due to the improper denial of a properly filed substitution of judge motion.
The relevant statute, 725 ILCS 5/14-5(a), reads: “[w]ithin 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.”
A defendant has an absolute right to a new judge as long as the proper procedure has been followed. “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) (West 2010); People v. McDuffee, 187 Ill. 2d 481, 487-88 (1999). Tate at page 7. The Court in Tate further relies on the McDuffee decision. “Pursuant to the statute, a defendant must be granted an automatic substitution of judge 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. In addition, this court has held that the motion must be made before the trial judge makes a substantive ruling in the case. People v. Norcutt, 44 Ill. 2d 256, 262-63, 255 N.E.2d 442 (1970)” Tate page 7.
This case took a few procedural turns between arrest, indictment and courtroom assignments. Cook County practitioners are well accustomed to this. It should be noted that the trial attorney filed his motion for a substitution of judge in a timely fashion, made an oral argument for substitution, and made sure his objection to the denial of his motion was clear on the court record. The defense attorney was proven correct upon appeal. The conviction in this matter was reversed and the matter remanded for new trial.
For more information of motions for substitution of judge or any other criminal or traffic matter, please contact James R. Doerr of Lavelle Law at (847)705-7555.