that was for paired by a psychiatrist including that the defendant was fit for trial as well as the hearings the transcripts of the hearings between the date the defendant have been found unfit which was in august of two thousand and ten and then stipulated to the experts he inclusion or stipulated that the expert would have come in and testify consistently with his report three opinions issued from this court ultimately the conclusion was it was at least ambiguous what the stipulation had been to if it was indeed to the conclusion that was improper and thus the defendant had not received an adequate fitness restoration proceeding and retrospective business was warranted and inquiry so when the case went back in december of two thousand and fifteen at the first hearing said it's required at that time the trial court said this quite mad in fact misinterpreted what he had done and attempt to sort of clear up the record and said that the stipulation that he hadn't received was actually that the expert would testify consistently in the court found the defendant based on the contents of their report explaining what he had done in the original proceedings he said this corny saying that this court wanted him to go back and evaluate what those satisfied with the defendant's fitness back at the time of the original proceedings yet concerned later on during the trial which were also raised in the prior feel that this court disagreed that those warrants a further inquiry and the state  report and based on the party's current stipulation because again at the retrospective i finished receiving the stipulated to the report and that an expert would testify consistently concluded that in a different it was fit we have raised two thousand and eleven the court didn't do that this record makes no mention of the court reviewing those proceedings the court doesn't mention we just said that reviewed the report and then finding the defendant fit also  within the issue that trial court got to exercise its discretion in finding a defendant that based solely on the situation to the content of the court and that that too is its error so at this point i position as the defendant still has not had an adequate fitness restoration hearing the state doesn't dispute that this court's order in the prior appeal required the trial court to review the transcripts of those hearings and then exercise its discretion as you know court is required to exercise its discretion in determining restoration of fairness instead as to the transcripts to see it argues that first of all the fans invited the air i participated in the hearing and not objecting to the court's not considering those transcripts our response was that it wasn't an invited their defense counsel first of all seemed a little confused about what this court one i guess to the contrary to this court was the one who is confused correct and but what this court did then was order a prospective fitness hearing at which specific things were directed to be considered if this were the one of the trial courts to just clear things up this quote would have been within bounds to she were such a limited these specific things the report from february two thousand and eleven and it's transfers the record does not show the court consider those transcripts well if the state wasn't happy with this de were going to the country so that they didn't what i feel like happened here sort of falls in line with what justice mcdade was concerned about happening and a retrospective proceeding on and you know she was very clear toward the end of her opinion that and not attributing any the call behavior to anybody but to say that it's human nature in a circumstance like this to believing that the outcome was right you know the parties and the court believes the outcome was right of both the fitness that the point was that if they had believed that the verdict was appropriate then the sort of inclination of human interest fill in the blanks me and he doubts go away about whether or not the fitness restoration had been proper in this hearing two now whole bunch more time has passed which is always a concern with retrospect if it is because it is the passage of time because memories dall and things become less reliable so my recommendation to for their fitness proceedings but in the process vacate the trial verdict and depending on the outcome of further proceedings then is there a trial if he's fit yes are there no unfitness proceedings you know he's not that we go back through trying to restore to fitness if he can't be restored if innocent discharge here in those sorts of proceedings that's what i've asked for i mean the alternative done that on other occasions in other circumstances and would be perfectly appropriate to do in  obtain fitness within the year but then leader says he is fit on this is all within the same report and if the judge had taken a close look at it i think would have had concerns about for itself it conflicts obviously with the earlier report unfed it doesn't really talk about what was done to make him fit you know usually these reports talk about what went to fitness class to you know medication therapies whatever and there was within the report itself and so even if this quote were takes up the state's position which part of its argument is that those transcripts from material and didn't really matter to the outcome even if just considering the report was appropriate it what was required it was required to send back and look at these reports on the transfers the terms doesn't say anything about the transcripts but as we pointed out and transfers had not been submitted as part of the fitness hearing i don't know how we would know that they are you know that they were part of the pack mention there are those transcripts and i think that the reason for the truth is you know as i'm trying to put my arms around this that during those hearings there was some behavior that would suggest perhaps  i want to discuss a couple of points i mean i sort of start from where this course started with mr ryder to be not just a surprise in your question you know whether we would know if the court considered those transcripts whether they were submitted you know that court excluded any mention of the transcript the parties didn't mention the transcripts neither defense nor the state mccord to answer mention the transcript so we would know if the court  this hearing that is substantive and it's not just a matter of looking at things but analyzing and evaluating those things that are before it so it's not just a make a record type of reading and that that was ordered in the state also suggested both in their grief and you know regular today that those would not have made a difference those transcripts and arguably the areas they are very short so the fitness proceeding there are an equal number of pages sober talking about the way we were talking reports about fitness i think from the defendant's sort of persistent refusal to attend or participate in proceedings the court also could have gleaned from looking at those transcripts that it was several months between when the defendant the pendant was found on fit by the court and when he ultimately made it into the chats when and that opened up and part of the unfitness finding stating that he could be made fit within a year was he will need indecent treatment so the court would have looked at that and seen and there was that a significant period of time where he was not receiving in peace and treatment he was sitting in the jail well needing to get to the h s the court also looking at those would have noted it had little if no opportunity to personally intervening time period and part of the consideration in finding a defendant restored to fitness comes from the courts i want to believe to observe that individual sitting before it and it was very little opportunity for that to happen so consideration as transcripts and this court ordered that they be considered certainly in this court thought that that would be a significant component if it is restoration retrospective fitness restoration proceeding happened a meaningful fitness restoration proceeding and asked this court for the relief we've requested in terms of vacant conviction and search starting a meal with the fitness problem alternatively as  you know in the past one hour or as not i follow the directions of the supreme court's approach was to say yes that should be signed so