delivered the opinion of the court:
Billiе Lee Elsholtz, the defendant, was charged with theft and possession of a stolen vehicle in an information filed in the circuit court of Du Page County. A hearing was held at the conclusion of which the trial court entered an order finding defendant unfit to stand trial. On defendant’s behalf, a timely notice of appeal from this order was filed on August 26, 1983. While the appeal was pending, in accordance with the relevant statutory provisions, the Department of Mental Health and Disabilities filed a report (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 17(e)), and the trial court held two hearings to reexamine defendant’s fitness at 90-day intervals (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 20). On February 9, 1984, аfter the second of these hearings, the trial court found defendant fit to stand trial. Defendant, on February 21, 1984, filеd a motion in this court to dismiss his appeal. On February 29, 1984, before this court ruled on defendant’s motion, the trial court, fully aware of the status of the pending appeal, held a bench trial and found defendant guilty of thеft but not guilty of possession of a stolen vehicle. This court dismissed the appeal on March 6, 1984. Defendаnt was sentenced to a three-year term of imprisonment on March 29, 1984. He has appealed arguing that, at the time of the bench trial, the trial court lacked jurisdiction to try him because of the pendеncy of the appeal. We agree.
The parties agree that the trial court had jurisdiction tо reexamine defendant’s fitness during the pendency of the appeal from the original finding of unfitness. It could not rationally be otherwise. In cases such as that at bar, where a defendant is expected to become fit with treatment, the statute provides for hearings to reexamine fitness at maximum intervals of 90 days. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 20(a).) In all but the most unusual cases, an appeal takes longer than 90 days. (See 87 Ill. 2d Rules 326 and 343(a).) It would be wholly unreasonable to construe the statute (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 16(e)) or the Supremе Court Rule (87 Ill. 2d R. 604(e)) providing for appeals from findings of unfitness to require a final resolution of the appeal before the trial court may determine whether a defendant has become fit since the original finding of unfitness. See In re Marriage of Petramale (1981),
According to the State, this should be dispositive of the issue raised. The State’s position is that trial сourt jurisdiction is all or none; the trial court either had it or lacked it. From this starting point, the State argues that the trial court had jurisdiction to reexamine defendant’s fitness and therefore had jurisdiction to try him after he was found to be fit. The State has cited no authority supportive of this simplistic all-or-none apprоach to jurisdiction, and the law is contrary to it.
The general rule is that the filing of a notice of apрeal divests the trial court of jurisdiction to enter any order involving a matter of substance and causеs the jurisdiction of the appellate court to attach instanter. (In re Marriage of Petramale (1981),
We turn now to the central question of the trial сourt’s jurisdiction to hold the trial. A defendant who is fit may be tried; one who is unfit may not be tried. (People v. Burson (1957),
An interesting case supportive of this conclusion is People v. McBride (1983),
Finally, we note that it would have been very easy to avoid the problem in this casе. The trial court knew about the pending appeal; about the motion to dismiss the appeal; and about the likely early ruling by this court on the motion. It is difficult to see why the short bench trial in this case was not delаyed briefly until after this court had ruled on the motion and issued its mandate so that there could be no question about the trial court’s jurisdiction.
The judgment of the circuit court of Du Page County is therefore reversed and the cause is remanded for new proceedings.
Reversed and remanded.
STROUSE and SCHNAKE, JJ., concur.