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90_HB1359
730 ILCS 5/5-5-3 from Ch. 38, par. 1005-5-3
Amends the Unified Code of Corrections. Provides that a
defendant who is a member of an organized gang and who
commits a felony shall not receive probation, conditional
discharge, or periodic imprisonment. Effective immediately.
LRB9004432RCks
LRB9004432RCks
1 AN ACT to amend the Unified Code of Corrections by
2 changing Section 5-5-3.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Unified Code of Corrections is amended by
6 changing Section 5-5-3 as follows:
7 (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
8 (Text of Section before amendment by P.A. 89-507 and
9 89-688)
10 Sec. 5-5-3. Disposition.
11 (a) Every person convicted of an offense shall be
12 sentenced as provided in this Section.
13 (b) The following options shall be appropriate
14 dispositions, alone or in combination, for all felonies and
15 misdemeanors other than those identified in subsection (c) of
16 this Section:
17 (1) A period of probation.
18 (2) A term of periodic imprisonment.
19 (3) A term of conditional discharge.
20 (4) A term of imprisonment.
21 (5) An order directing the offender to clean up and
22 repair the damage, if the offender was convicted under
23 paragraph (h) of Section 21-1 of the Criminal Code of
24 1961.
25 (6) A fine.
26 (7) An order directing the offender to make
27 restitution to the victim under Section 5-5-6 of this
28 Code.
29 (8) A sentence of participation in a county impact
30 incarceration program under Section 5-8-1.2 of this Code.
31 Whenever an individual is sentenced for an offense based
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1 upon an arrest for a violation of Section 11-501 of the
2 Illinois Vehicle Code, or a similar provision of a local
3 ordinance, and the professional evaluation recommends
4 remedial or rehabilitative treatment or education, neither
5 the treatment nor the education shall be the sole disposition
6 and either or both may be imposed only in conjunction with
7 another disposition. The court shall monitor compliance with
8 any remedial education or treatment recommendations contained
9 in the professional evaluation. Programs conducting alcohol
10 or other drug evaluation or remedial education must be
11 licensed by the Department of Alcoholism and Substance Abuse.
12 However, if the individual is not a resident of Illinois, the
13 court may accept an alcohol or other drug evaluation or
14 remedial education program in the state of such individual's
15 residence. Programs providing treatment must be licensed
16 under existing applicable alcoholism and drug treatment
17 licensure standards.
18 In addition to any other fine or penalty required by law,
19 any individual convicted of a violation of Section 11-501 of
20 the Illinois Vehicle Code or a similar provision of local
21 ordinance, whose operation of a motor vehicle while in
22 violation of Section 11-501 or such ordinance proximately
23 caused an incident resulting in an appropriate emergency
24 response, shall be required to make restitution to a public
25 agency for the costs of that emergency response. Such
26 restitution shall not exceed $500 per public agency for each
27 such emergency response. For the purpose of this paragraph,
28 emergency response shall mean any incident requiring a
29 response by: a police officer as defined under Section 1-162
30 of the Illinois Vehicle Code; a fireman carried on the rolls
31 of a regularly constituted fire department; and an ambulance
32 as defined under Section 4.05 of the Emergency Medical
33 Services (EMS) Systems Act.
34 Neither a fine nor restitution shall be the sole
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1 disposition for a felony and either or both may be imposed
2 only in conjunction with another disposition.
3 (c) (1) When a defendant is found guilty of first degree
4 murder the State may either seek a sentence of
5 imprisonment under Section 5-8-1 of this Code, or where
6 appropriate seek a sentence of death under Section 9-1 of
7 the Criminal Code of 1961.
8 (2) A period of probation, a term of periodic
9 imprisonment or conditional discharge shall not be
10 imposed for the following offenses. The court shall
11 sentence the offender to not less than the minimum term
12 of imprisonment set forth in this Code for the following
13 offenses, and may order a fine or restitution or both in
14 conjunction with such term of imprisonment:
15 (A) First degree murder where the death
16 penalty is not imposed.
17 (B) Attempted first degree murder.
18 (C) A Class X felony.
19 (D) A violation of Section 401.1 or 407 of the
20 Illinois Controlled Substances Act, or a violation
21 of subdivision (c)(2) of Section 401 of that Act
22 which relates to more than 5 grams of a substance
23 containing cocaine or an analog thereof.
24 (E) A violation of Section 5.1 or 9 of the
25 Cannabis Control Act.
26 (F) A Class 2 or greater felony if the
27 offender had been convicted of a Class 2 or greater
28 felony within 10 years of the date on which he
29 committed the offense for which he is being
30 sentenced.
31 (G) Residential burglary.
32 (H) Criminal sexual assault, except as
33 otherwise provided in subsection (e) of this
34 Section.
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1 (I) Aggravated battery of a senior citizen.
2 (J) A forcible felony if the offense was
3 related to the activities of an organized gang.
4 (J-5) A felony committed by a member of an
5 organized gang.
6 Before July 1, 1994, for the purposes of this
7 paragraph, "organized gang" means an association of
8 5 or more persons, with an established hierarchy,
9 that encourages members of the association to
10 perpetrate crimes or provides support to the members
11 of the association who do commit crimes.
12 Beginning July 1, 1994, for the purposes of
13 paragraphs (J) and (J-5) this paragraph, "organized
14 gang" has the meaning ascribed to it in Section 10
15 of the Illinois Streetgang Terrorism Omnibus
16 Prevention Act.
17 (K) Vehicular hijacking.
18 (L) A second or subsequent conviction for the
19 offense of hate crime when the underlying offense
20 upon which the hate crime is based is felony
21 aggravated assault or felony mob action.
22 (M) A second or subsequent conviction for the
23 offense of institutional vandalism if the damage to
24 the property exceeds $300.
25 (N) A Class 3 felony violation of paragraph
26 (1) of subsection (a) of Section 2 of the Firearm
27 Owners Identification Card Act.
28 (O) A violation of Section 12-6.1 of the
29 Criminal Code of 1961.
30 (3) A minimum term of imprisonment of not less than
31 48 consecutive hours or 100 hours of community service as
32 may be determined by the court shall be imposed for a
33 second or subsequent violation committed within 5 years
34 of a previous violation of Section 11-501 of the Illinois
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1 Vehicle Code or a similar provision of a local ordinance.
2 (4) A minimum term of imprisonment of not less than
3 7 consecutive days or 30 days of community service shall
4 be imposed for a violation of paragraph (c) of Section
5 6-303 of the Illinois Vehicle Code.
6 (4.1) A minimum term of 30 consecutive days of
7 imprisonment, 40 days of 24 hour periodic imprisonment or
8 720 hours of community service, as may be determined by
9 the court, shall be imposed for a violation of Section
10 11-501 of the Illinois Vehicle Code during a period in
11 which the defendant's driving privileges are revoked or
12 suspended, where the revocation or suspension was for a
13 violation of Section 11-501 or Section 11-501.1 of that
14 Code.
15 (5) The court may sentence an offender convicted of
16 a business offense or a petty offense or a corporation or
17 unincorporated association convicted of any offense to:
18 (A) a period of conditional discharge;
19 (B) a fine;
20 (C) make restitution to the victim under
21 Section 5-5-6 of this Code.
22 (6) In no case shall an offender be eligible for a
23 disposition of probation or conditional discharge for a
24 Class 1 felony committed while he was serving a term of
25 probation or conditional discharge for a felony.
26 (7) When a defendant is adjudged a habitual
27 criminal under Article 33B of the Criminal Code of 1961,
28 the court shall sentence the defendant to a term of
29 natural life imprisonment.
30 (8) When a defendant, over the age of 21 years, is
31 convicted of a Class 1 or Class 2 felony, after having
32 twice been convicted of any Class 2 or greater Class
33 felonies in Illinois, and such charges are separately
34 brought and tried and arise out of different series of
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1 acts, such defendant shall be sentenced as a Class X
2 offender. This paragraph shall not apply unless (1) the
3 first felony was committed after the effective date of
4 this amendatory Act of 1977; and (2) the second felony
5 was committed after conviction on the first; and (3) the
6 third felony was committed after conviction on the
7 second.
8 (9) A defendant convicted of a second or subsequent
9 offense of ritualized abuse of a child may be sentenced
10 to a term of natural life imprisonment.
11 (10) Beginning July 1, 1994, unless sentencing
12 under Section 33B-1 is applicable, a term of imprisonment
13 of not less than 15 years nor more than 50 years shall be
14 imposed on a defendant who violates Section 33A-2 of the
15 Criminal Code of 1961 with a firearm, when that person
16 has been convicted in any state or federal court of 3 or
17 more of the following offenses: treason, first degree
18 murder, second degree murder, aggravated criminal sexual
19 assault, criminal sexual assault, robbery, burglary,
20 arson, kidnaping, aggravated battery resulting in great
21 bodily harm or permanent disability or disfigurement, or
22 a violation of Section 401(a) of the Illinois Controlled
23 Substances Act, when the third offense was committed
24 after conviction on the second, the second offense was
25 committed after conviction on the first, and the
26 violation of Section 33A-2 of the Criminal Code of 1961
27 was committed after conviction on the third.
28 (11) Beginning July 1, 1994, a term of imprisonment
29 of not less than 10 years and not more than 30 years
30 shall be imposed on a defendant who violates Section
31 33A-2 with a Category I weapon where the offense was
32 committed in any school, or any conveyance owned, leased,
33 or contracted by a school to transport students to or
34 from school or a school related activity, on the real
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1 property comprising any school or public park, and where
2 the offense was related to the activities of an organized
3 gang. For the purposes of this paragraph (11),
4 "organized gang" has the meaning ascribed to it in
5 Section 10 of the Illinois Streetgang Terrorism Omnibus
6 Prevention Act.
7 (d) In any case in which a sentence originally imposed
8 is vacated, the case shall be remanded to the trial court.
9 The trial court shall hold a hearing under Section 5-4-1 of
10 the Unified Code of Corrections which may include evidence of
11 the defendant's life, moral character and occupation during
12 the time since the original sentence was passed. The trial
13 court shall then impose sentence upon the defendant. The
14 trial court may impose any sentence which could have been
15 imposed at the original trial subject to Section 5-5-4 of the
16 Unified Code of Corrections.
17 (e) In cases where prosecution for criminal sexual
18 assault or aggravated criminal sexual abuse under Section
19 12-13 or 12-16 of the Criminal Code of 1961 results in
20 conviction of a defendant who was a family member of the
21 victim at the time of the commission of the offense, the
22 court shall consider the safety and welfare of the victim and
23 may impose a sentence of probation only where:
24 (1) the court finds (A) or (B) or both are
25 appropriate:
26 (A) the defendant is willing to undergo a
27 court approved counseling program for a minimum
28 duration of 2 years; or
29 (B) the defendant is willing to participate in
30 a court approved plan including but not limited to
31 the defendant's:
32 (i) removal from the household;
33 (ii) restricted contact with the victim;
34 (iii) continued financial support of the
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1 family;
2 (iv) restitution for harm done to the
3 victim; and
4 (v) compliance with any other measures
5 that the court may deem appropriate; and
6 (2) the court orders the defendant to pay for the
7 victim's counseling services, to the extent that the
8 court finds, after considering the defendant's income and
9 assets, that the defendant is financially capable of
10 paying for such services, if the victim was under 18
11 years of age at the time the offense was committed and
12 requires counseling as a result of the offense.
13 Probation may be revoked or modified pursuant to Section
14 5-6-4; except where the court determines at the hearing that
15 the defendant violated a condition of his or her probation
16 restricting contact with the victim or other family members
17 or commits another offense with the victim or other family
18 members, the court shall revoke the defendant's probation and
19 impose a term of imprisonment.
20 For the purposes of this Section, "family member" and
21 "victim" shall have the meanings ascribed to them in Section
22 12-12 of the Criminal Code of 1961.
23 (f) This Article shall not deprive a court in other
24 proceedings to order a forfeiture of property, to suspend or
25 cancel a license, to remove a person from office, or to
26 impose any other civil penalty.
27 (g) Whenever a defendant is convicted of an offense
28 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
29 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
30 12-15 or 12-16 of the Criminal Code of 1961, the defendant
31 shall undergo medical testing to determine whether the
32 defendant has any sexually transmissible disease, including a
33 test for infection with human immunodeficiency virus (HIV) or
34 any other identified causative agent of acquired
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1 immunodeficiency syndrome (AIDS). Any such medical test
2 shall be performed only by appropriately licensed medical
3 practitioners and may include an analysis of any bodily
4 fluids as well as an examination of the defendant's person.
5 Except as otherwise provided by law, the results of such test
6 shall be kept strictly confidential by all medical personnel
7 involved in the testing and must be personally delivered in a
8 sealed envelope to the judge of the court in which the
9 conviction was entered for the judge's inspection in camera.
10 Acting in accordance with the best interests of the victim
11 and the public, the judge shall have the discretion to
12 determine to whom, if anyone, the results of the testing may
13 be revealed. The court shall notify the defendant of the test
14 results. The court shall also notify the victim if requested
15 by the victim, and if the victim is under the age of 15 and
16 if requested by the victim's parents or legal guardian, the
17 court shall notify the victim's parents or legal guardian of
18 the test results. The court shall provide information on the
19 availability of HIV testing and counseling at Department of
20 Public Health facilities to all parties to whom the results
21 of the testing are revealed and shall direct the State's
22 Attorney to provide the information to the victim when
23 possible. A State's Attorney may petition the court to obtain
24 the results of any HIV test administered under this Section,
25 and the court shall grant the disclosure if the State's
26 Attorney shows it is relevant in order to prosecute a charge
27 of criminal transmission of HIV under Section 12-16.2 of the
28 Criminal Code of 1961 against the defendant. The court shall
29 order that the cost of any such test shall be paid by the
30 county and may be taxed as costs against the convicted
31 defendant.
32 (g-5) When an inmate is tested for an airborne
33 communicable disease, as determined by the Illinois
34 Department of Public Health including but not limited to
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1 tuberculosis, the results of the test shall be personally
2 delivered by the warden or his or her designee in a sealed
3 envelope to the judge of the court in which the inmate must
4 appear for the judge's inspection in camera if requested by
5 the judge. Acting in accordance with the best interests of
6 those in the courtroom, the judge shall have the discretion
7 to determine what if any precautions need to be taken to
8 prevent transmission of the disease in the courtroom.
9 (h) Whenever a defendant is convicted of an offense
10 under Section 1 or 2 of the Hypodermic Syringes and Needles
11 Act, the defendant shall undergo medical testing to determine
12 whether the defendant has been exposed to human
13 immunodeficiency virus (HIV) or any other identified
14 causative agent of acquired immunodeficiency syndrome (AIDS).
15 Except as otherwise provided by law, the results of such test
16 shall be kept strictly confidential by all medical personnel
17 involved in the testing and must be personally delivered in a
18 sealed envelope to the judge of the court in which the
19 conviction was entered for the judge's inspection in camera.
20 Acting in accordance with the best interests of the public,
21 the judge shall have the discretion to determine to whom, if
22 anyone, the results of the testing may be revealed. The court
23 shall notify the defendant of a positive test showing an
24 infection with the human immunodeficiency virus (HIV). The
25 court shall provide information on the availability of HIV
26 testing and counseling at Department of Public Health
27 facilities to all parties to whom the results of the testing
28 are revealed and shall direct the State's Attorney to provide
29 the information to the victim when possible. A State's
30 Attorney may petition the court to obtain the results of any
31 HIV test administered under this Section, and the court
32 shall grant the disclosure if the State's Attorney shows it
33 is relevant in order to prosecute a charge of criminal
34 transmission of HIV under Section 12-16.2 of the Criminal
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1 Code of 1961 against the defendant. The court shall order
2 that the cost of any such test shall be paid by the county
3 and may be taxed as costs against the convicted defendant.
4 (i) All fines and penalties imposed under this Section
5 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
6 Vehicle Code, or a similar provision of a local ordinance,
7 and any violation of the Child Passenger Protection Act, or a
8 similar provision of a local ordinance, shall be collected
9 and disbursed by the circuit clerk as provided under Section
10 27.5 of the Clerks of Courts Act.
11 (j) In cases when prosecution for any violation of
12 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
13 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
14 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
15 12-16 of the Criminal Code of 1961, any violation of the
16 Illinois Controlled Substances Act, or any violation of the
17 Cannabis Control Act results in conviction, a disposition of
18 court supervision, or an order of probation granted under
19 Section 10 of the Cannabis Control Act or Section 410 of the
20 Illinois Controlled Substance Act of a defendant, the court
21 shall determine whether the defendant is employed by a
22 facility or center as defined under the Child Care Act of
23 1969, a public or private elementary or secondary school, or
24 otherwise works with children under 18 years of age on a
25 daily basis. When a defendant is so employed, the court
26 shall order the Clerk of the Court to send a copy of the
27 judgment of conviction or order of supervision or probation
28 to the defendant's employer by certified mail. If the
29 employer of the defendant is a school, the Clerk of the Court
30 shall direct the mailing of a copy of the judgment of
31 conviction or order of supervision or probation to the
32 appropriate regional superintendent of schools. The regional
33 superintendent of schools shall notify the State Board of
34 Education of any notification under this subsection.
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1 (k) A court may not impose a sentence or disposition for
2 a felony or misdemeanor that requires the defendant to be
3 implanted or injected with or to use any form of birth
4 control.
5 (l)(A) Except as provided in paragraph (C) of subsection
6 (l), whenever a defendant, who is an alien as defined by the
7 Immigration and Nationality Act, is convicted of any felony
8 or misdemeanor offense, the court after sentencing the
9 defendant may, upon motion of the State's Attorney, hold
10 sentence in abeyance and remand the defendant to the custody
11 of the Attorney General of the United States or his or her
12 designated agent to be deported when:
13 (1) a final order of deportation has been issued
14 against the defendant pursuant to proceedings under the
15 Immigration and Nationality Act, and
16 (2) the deportation of the defendant would not
17 deprecate the seriousness of the defendant's conduct and
18 would not be inconsistent with the ends of justice.
19 Otherwise, the defendant shall be sentenced as provided
20 in this Chapter V.
21 (B) If the defendant has already been sentenced for a
22 felony or misdemeanor offense, or has been placed on
23 probation under Section 10 of the Cannabis Control Act or
24 Section 410 of the Illinois Controlled Substances Act, the
25 court may, upon motion of the State's Attorney to suspend the
26 sentence imposed, commit the defendant to the custody of the
27 Attorney General of the United States or his or her
28 designated agent when:
29 (1) a final order of deportation has been issued
30 against the defendant pursuant to proceedings under the
31 Immigration and Nationality Act, and
32 (2) the deportation of the defendant would not
33 deprecate the seriousness of the defendant's conduct and
34 would not be inconsistent with the ends of justice.
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1 (C) This subsection (l) does not apply to offenders who
2 are subject to the provisions of paragraph (2) of subsection
3 (a) of Section 3-6-3.
4 (D) Upon motion of the State's Attorney, if a defendant
5 sentenced under this Section returns to the jurisdiction of
6 the United States, the defendant shall be recommitted to the
7 custody of the county from which he or she was sentenced.
8 Thereafter, the defendant shall be brought before the
9 sentencing court, which may impose any sentence that was
10 available under Section 5-5-3 at the time of initial
11 sentencing. In addition, the defendant shall not be eligible
12 for additional good conduct credit for meritorious service as
13 provided under Section 3-6-6.
14 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
15 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
16 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
17 eff. 5-29-96; 89-477, eff. 6-18-96; 89-545, eff. 7-25-96;
18 89-587, eff. 7-31-96; 89-627, eff. 1-1-97; revised 1-7-97.)
19 (Text of Section after amendment by P.A. 89-507 and
20 89-688)
21 Sec. 5-5-3. Disposition.
22 (a) Every person convicted of an offense shall be
23 sentenced as provided in this Section.
24 (b) The following options shall be appropriate
25 dispositions, alone or in combination, for all felonies and
26 misdemeanors other than those identified in subsection (c) of
27 this Section:
28 (1) A period of probation.
29 (2) A term of periodic imprisonment.
30 (3) A term of conditional discharge.
31 (4) A term of imprisonment.
32 (5) An order directing the offender to clean up and
33 repair the damage, if the offender was convicted under
34 paragraph (h) of Section 21-1 of the Criminal Code of
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1 1961.
2 (6) A fine.
3 (7) An order directing the offender to make
4 restitution to the victim under Section 5-5-6 of this
5 Code.
6 (8) A sentence of participation in a county impact
7 incarceration program under Section 5-8-1.2 of this Code.
8 Whenever an individual is sentenced for an offense based
9 upon an arrest for a violation of Section 11-501 of the
10 Illinois Vehicle Code, or a similar provision of a local
11 ordinance, and the professional evaluation recommends
12 remedial or rehabilitative treatment or education, neither
13 the treatment nor the education shall be the sole disposition
14 and either or both may be imposed only in conjunction with
15 another disposition. The court shall monitor compliance with
16 any remedial education or treatment recommendations contained
17 in the professional evaluation. Programs conducting alcohol
18 or other drug evaluation or remedial education must be
19 licensed by the Department of Human Services. However, if
20 the individual is not a resident of Illinois, the court may
21 accept an alcohol or other drug evaluation or remedial
22 education program in the state of such individual's
23 residence. Programs providing treatment must be licensed
24 under existing applicable alcoholism and drug treatment
25 licensure standards.
26 In addition to any other fine or penalty required by law,
27 any individual convicted of a violation of Section 11-501 of
28 the Illinois Vehicle Code or a similar provision of local
29 ordinance, whose operation of a motor vehicle while in
30 violation of Section 11-501 or such ordinance proximately
31 caused an incident resulting in an appropriate emergency
32 response, shall be required to make restitution to a public
33 agency for the costs of that emergency response. Such
34 restitution shall not exceed $500 per public agency for each
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1 such emergency response. For the purpose of this paragraph,
2 emergency response shall mean any incident requiring a
3 response by: a police officer as defined under Section 1-162
4 of the Illinois Vehicle Code; a fireman carried on the rolls
5 of a regularly constituted fire department; and an ambulance
6 as defined under Section 4.05 of the Emergency Medical
7 Services (EMS) Systems Act.
8 Neither a fine nor restitution shall be the sole
9 disposition for a felony and either or both may be imposed
10 only in conjunction with another disposition.
11 (c) (1) When a defendant is found guilty of first degree
12 murder the State may either seek a sentence of
13 imprisonment under Section 5-8-1 of this Code, or where
14 appropriate seek a sentence of death under Section 9-1 of
15 the Criminal Code of 1961.
16 (2) A period of probation, a term of periodic
17 imprisonment or conditional discharge shall not be
18 imposed for the following offenses. The court shall
19 sentence the offender to not less than the minimum term
20 of imprisonment set forth in this Code for the following
21 offenses, and may order a fine or restitution or both in
22 conjunction with such term of imprisonment:
23 (A) First degree murder where the death
24 penalty is not imposed.
25 (B) Attempted first degree murder.
26 (C) A Class X felony.
27 (D) A violation of Section 401.1 or 407 of the
28 Illinois Controlled Substances Act, or a violation
29 of subdivision (c)(2) of Section 401 of that Act
30 which relates to more than 5 grams of a substance
31 containing cocaine or an analog thereof.
32 (E) A violation of Section 5.1 or 9 of the
33 Cannabis Control Act.
34 (F) A Class 2 or greater felony if the
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1 offender had been convicted of a Class 2 or greater
2 felony within 10 years of the date on which he
3 committed the offense for which he is being
4 sentenced.
5 (G) Residential burglary.
6 (H) Criminal sexual assault, except as
7 otherwise provided in subsection (e) of this
8 Section.
9 (I) Aggravated battery of a senior citizen.
10 (J) A forcible felony if the offense was
11 related to the activities of an organized gang.
12 (J-5) A felony committed by a member of an
13 organized gang.
14 Before July 1, 1994, for the purposes of this
15 paragraph, "organized gang" means an association of
16 5 or more persons, with an established hierarchy,
17 that encourages members of the association to
18 perpetrate crimes or provides support to the members
19 of the association who do commit crimes.
20 Beginning July 1, 1994, for the purposes of
21 paragraphs (J) and (J-5) this paragraph, "organized
22 gang" has the meaning ascribed to it in Section 10
23 of the Illinois Streetgang Terrorism Omnibus
24 Prevention Act.
25 (K) Vehicular hijacking.
26 (L) A second or subsequent conviction for the
27 offense of hate crime when the underlying offense
28 upon which the hate crime is based is felony
29 aggravated assault or felony mob action.
30 (M) A second or subsequent conviction for the
31 offense of institutional vandalism if the damage to
32 the property exceeds $300.
33 (N) A Class 3 felony violation of paragraph
34 (1) of subsection (a) of Section 2 of the Firearm
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1 Owners Identification Card Act.
2 (O) A violation of Section 12-6.1 of the
3 Criminal Code of 1961.
4 (3) A minimum term of imprisonment of not less than
5 48 consecutive hours or 100 hours of community service as
6 may be determined by the court shall be imposed for a
7 second or subsequent violation committed within 5 years
8 of a previous violation of Section 11-501 of the Illinois
9 Vehicle Code or a similar provision of a local ordinance.
10 (4) A minimum term of imprisonment of not less than
11 7 consecutive days or 30 days of community service shall
12 be imposed for a violation of paragraph (c) of Section
13 6-303 of the Illinois Vehicle Code.
14 (4.1) A minimum term of 30 consecutive days of
15 imprisonment, 40 days of 24 hour periodic imprisonment or
16 720 hours of community service, as may be determined by
17 the court, shall be imposed for a violation of Section
18 11-501 of the Illinois Vehicle Code during a period in
19 which the defendant's driving privileges are revoked or
20 suspended, where the revocation or suspension was for a
21 violation of Section 11-501 or Section 11-501.1 of that
22 Code.
23 (5) The court may sentence an offender convicted of
24 a business offense or a petty offense or a corporation or
25 unincorporated association convicted of any offense to:
26 (A) a period of conditional discharge;
27 (B) a fine;
28 (C) make restitution to the victim under
29 Section 5-5-6 of this Code.
30 (6) In no case shall an offender be eligible for a
31 disposition of probation or conditional discharge for a
32 Class 1 felony committed while he was serving a term of
33 probation or conditional discharge for a felony.
34 (7) When a defendant is adjudged a habitual
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1 criminal under Article 33B of the Criminal Code of 1961,
2 the court shall sentence the defendant to a term of
3 natural life imprisonment.
4 (8) When a defendant, over the age of 21 years, is
5 convicted of a Class 1 or Class 2 felony, after having
6 twice been convicted of any Class 2 or greater Class
7 felonies in Illinois, and such charges are separately
8 brought and tried and arise out of different series of
9 acts, such defendant shall be sentenced as a Class X
10 offender. This paragraph shall not apply unless (1) the
11 first felony was committed after the effective date of
12 this amendatory Act of 1977; and (2) the second felony
13 was committed after conviction on the first; and (3) the
14 third felony was committed after conviction on the
15 second.
16 (9) A defendant convicted of a second or subsequent
17 offense of ritualized abuse of a child may be sentenced
18 to a term of natural life imprisonment.
19 (10) Beginning July 1, 1994, unless sentencing
20 under Section 33B-1 is applicable, a term of imprisonment
21 of not less than 15 years nor more than 50 years shall be
22 imposed on a defendant who violates Section 33A-2 of the
23 Criminal Code of 1961 with a firearm, when that person
24 has been convicted in any state or federal court of 3 or
25 more of the following offenses: treason, first degree
26 murder, second degree murder, aggravated criminal sexual
27 assault, criminal sexual assault, robbery, burglary,
28 arson, kidnaping, aggravated battery resulting in great
29 bodily harm or permanent disability or disfigurement, or
30 a violation of Section 401(a) of the Illinois Controlled
31 Substances Act, when the third offense was committed
32 after conviction on the second, the second offense was
33 committed after conviction on the first, and the
34 violation of Section 33A-2 of the Criminal Code of 1961
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1 was committed after conviction on the third.
2 (11) Beginning July 1, 1994, a term of imprisonment
3 of not less than 10 years and not more than 30 years
4 shall be imposed on a defendant who violates Section
5 33A-2 with a Category I weapon where the offense was
6 committed in any school, or any conveyance owned, leased,
7 or contracted by a school to transport students to or
8 from school or a school related activity, on the real
9 property comprising any school or public park, and where
10 the offense was related to the activities of an organized
11 gang. For the purposes of this paragraph (11),
12 "organized gang" has the meaning ascribed to it in
13 Section 10 of the Illinois Streetgang Terrorism Omnibus
14 Prevention Act.
15 (d) In any case in which a sentence originally imposed
16 is vacated, the case shall be remanded to the trial court.
17 The trial court shall hold a hearing under Section 5-4-1 of
18 the Unified Code of Corrections which may include evidence of
19 the defendant's life, moral character and occupation during
20 the time since the original sentence was passed. The trial
21 court shall then impose sentence upon the defendant. The
22 trial court may impose any sentence which could have been
23 imposed at the original trial subject to Section 5-5-4 of the
24 Unified Code of Corrections.
25 (e) In cases where prosecution for criminal sexual
26 assault or aggravated criminal sexual abuse under Section
27 12-13 or 12-16 of the Criminal Code of 1961 results in
28 conviction of a defendant who was a family member of the
29 victim at the time of the commission of the offense, the
30 court shall consider the safety and welfare of the victim and
31 may impose a sentence of probation only where:
32 (1) the court finds (A) or (B) or both are
33 appropriate:
34 (A) the defendant is willing to undergo a
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1 court approved counseling program for a minimum
2 duration of 2 years; or
3 (B) the defendant is willing to participate in
4 a court approved plan including but not limited to
5 the defendant's:
6 (i) removal from the household;
7 (ii) restricted contact with the victim;
8 (iii) continued financial support of the
9 family;
10 (iv) restitution for harm done to the
11 victim; and
12 (v) compliance with any other measures
13 that the court may deem appropriate; and
14 (2) the court orders the defendant to pay for the
15 victim's counseling services, to the extent that the
16 court finds, after considering the defendant's income and
17 assets, that the defendant is financially capable of
18 paying for such services, if the victim was under 18
19 years of age at the time the offense was committed and
20 requires counseling as a result of the offense.
21 Probation may be revoked or modified pursuant to Section
22 5-6-4; except where the court determines at the hearing that
23 the defendant violated a condition of his or her probation
24 restricting contact with the victim or other family members
25 or commits another offense with the victim or other family
26 members, the court shall revoke the defendant's probation and
27 impose a term of imprisonment.
28 For the purposes of this Section, "family member" and
29 "victim" shall have the meanings ascribed to them in Section
30 12-12 of the Criminal Code of 1961.
31 (f) This Article shall not deprive a court in other
32 proceedings to order a forfeiture of property, to suspend or
33 cancel a license, to remove a person from office, or to
34 impose any other civil penalty.
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1 (g) Whenever a defendant is convicted of an offense
2 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
3 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
4 12-15 or 12-16 of the Criminal Code of 1961, the defendant
5 shall undergo medical testing to determine whether the
6 defendant has any sexually transmissible disease, including a
7 test for infection with human immunodeficiency virus (HIV) or
8 any other identified causative agent of acquired
9 immunodeficiency syndrome (AIDS). Any such medical test
10 shall be performed only by appropriately licensed medical
11 practitioners and may include an analysis of any bodily
12 fluids as well as an examination of the defendant's person.
13 Except as otherwise provided by law, the results of such test
14 shall be kept strictly confidential by all medical personnel
15 involved in the testing and must be personally delivered in a
16 sealed envelope to the judge of the court in which the
17 conviction was entered for the judge's inspection in camera.
18 Acting in accordance with the best interests of the victim
19 and the public, the judge shall have the discretion to
20 determine to whom, if anyone, the results of the testing may
21 be revealed. The court shall notify the defendant of the test
22 results. The court shall also notify the victim if requested
23 by the victim, and if the victim is under the age of 15 and
24 if requested by the victim's parents or legal guardian, the
25 court shall notify the victim's parents or legal guardian of
26 the test results. The court shall provide information on the
27 availability of HIV testing and counseling at Department of
28 Public Health facilities to all parties to whom the results
29 of the testing are revealed and shall direct the State's
30 Attorney to provide the information to the victim when
31 possible. A State's Attorney may petition the court to obtain
32 the results of any HIV test administered under this Section,
33 and the court shall grant the disclosure if the State's
34 Attorney shows it is relevant in order to prosecute a charge
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1 of criminal transmission of HIV under Section 12-16.2 of the
2 Criminal Code of 1961 against the defendant. The court shall
3 order that the cost of any such test shall be paid by the
4 county and may be taxed as costs against the convicted
5 defendant.
6 (g-5) When an inmate is tested for an airborne
7 communicable disease, as determined by the Illinois
8 Department of Public Health including but not limited to
9 tuberculosis, the results of the test shall be personally
10 delivered by the warden or his or her designee in a sealed
11 envelope to the judge of the court in which the inmate must
12 appear for the judge's inspection in camera if requested by
13 the judge. Acting in accordance with the best interests of
14 those in the courtroom, the judge shall have the discretion
15 to determine what if any precautions need to be taken to
16 prevent transmission of the disease in the courtroom.
17 (h) Whenever a defendant is convicted of an offense
18 under Section 1 or 2 of the Hypodermic Syringes and Needles
19 Act, the defendant shall undergo medical testing to determine
20 whether the defendant has been exposed to human
21 immunodeficiency virus (HIV) or any other identified
22 causative agent of acquired immunodeficiency syndrome (AIDS).
23 Except as otherwise provided by law, the results of such test
24 shall be kept strictly confidential by all medical personnel
25 involved in the testing and must be personally delivered in a
26 sealed envelope to the judge of the court in which the
27 conviction was entered for the judge's inspection in camera.
28 Acting in accordance with the best interests of the public,
29 the judge shall have the discretion to determine to whom, if
30 anyone, the results of the testing may be revealed. The court
31 shall notify the defendant of a positive test showing an
32 infection with the human immunodeficiency virus (HIV). The
33 court shall provide information on the availability of HIV
34 testing and counseling at Department of Public Health
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1 facilities to all parties to whom the results of the testing
2 are revealed and shall direct the State's Attorney to provide
3 the information to the victim when possible. A State's
4 Attorney may petition the court to obtain the results of any
5 HIV test administered under this Section, and the court
6 shall grant the disclosure if the State's Attorney shows it
7 is relevant in order to prosecute a charge of criminal
8 transmission of HIV under Section 12-16.2 of the Criminal
9 Code of 1961 against the defendant. The court shall order
10 that the cost of any such test shall be paid by the county
11 and may be taxed as costs against the convicted defendant.
12 (i) All fines and penalties imposed under this Section
13 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
14 Vehicle Code, or a similar provision of a local ordinance,
15 and any violation of the Child Passenger Protection Act, or a
16 similar provision of a local ordinance, shall be collected
17 and disbursed by the circuit clerk as provided under Section
18 27.5 of the Clerks of Courts Act.
19 (j) In cases when prosecution for any violation of
20 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
21 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
22 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
23 12-16 of the Criminal Code of 1961, any violation of the
24 Illinois Controlled Substances Act, or any violation of the
25 Cannabis Control Act results in conviction, a disposition of
26 court supervision, or an order of probation granted under
27 Section 10 of the Cannabis Control Act or Section 410 of the
28 Illinois Controlled Substance Act of a defendant, the court
29 shall determine whether the defendant is employed by a
30 facility or center as defined under the Child Care Act of
31 1969, a public or private elementary or secondary school, or
32 otherwise works with children under 18 years of age on a
33 daily basis. When a defendant is so employed, the court
34 shall order the Clerk of the Court to send a copy of the
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1 judgment of conviction or order of supervision or probation
2 to the defendant's employer by certified mail. If the
3 employer of the defendant is a school, the Clerk of the Court
4 shall direct the mailing of a copy of the judgment of
5 conviction or order of supervision or probation to the
6 appropriate regional superintendent of schools. The regional
7 superintendent of schools shall notify the State Board of
8 Education of any notification under this subsection.
9 (j-5) A defendant at least 17 years of age who is
10 convicted of a felony and who has not been previously
11 convicted of a misdemeanor or felony and who is sentenced to
12 a term of imprisonment in the Illinois Department of
13 Corrections shall as a condition of his or her sentence be
14 required by the court to attend educational courses designed
15 to prepare the defendant for a high school diploma and to
16 work toward a high school diploma or to work toward passing
17 the high school level Test of General Educational Development
18 (GED) or to work toward completing a vocational training
19 program offered by the Department of Corrections. If a
20 defendant fails to complete the educational training required
21 by his or her sentence during the term of incarceration, the
22 Prisoner Review Board shall, as a condition of mandatory
23 supervised release, require the defendant, at his or her own
24 expense, to pursue a course of study toward a high school
25 diploma or passage of the GED test. The Prisoner Review
26 Board shall revoke the mandatory supervised release of a
27 defendant who wilfully fails to comply with this subsection
28 (j-5) upon his or her release from confinement in a penal
29 institution while serving a mandatory supervised release
30 term; however, the inability of the defendant after making a
31 good faith effort to obtain financial aid or pay for the
32 educational training shall not be deemed a wilful failure to
33 comply. The Prisoner Review Board shall recommit the
34 defendant whose mandatory supervised release term has been
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1 revoked under this subsection (j-5) as provided in Section
2 3-3-9. This subsection (j-5) does not apply to a defendant
3 who has a high school diploma or has successfully passed the
4 GED test. This subsection (j-5) does not apply to a defendant
5 who is determined by the court to be developmentally disabled
6 or otherwise mentally incapable of completing the educational
7 or vocational program.
8 (k) A court may not impose a sentence or disposition for
9 a felony or misdemeanor that requires the defendant to be
10 implanted or injected with or to use any form of birth
11 control.
12 (l)(A) Except as provided in paragraph (C) of subsection
13 (l), whenever a defendant, who is an alien as defined by the
14 Immigration and Nationality Act, is convicted of any felony
15 or misdemeanor offense, the court after sentencing the
16 defendant may, upon motion of the State's Attorney, hold
17 sentence in abeyance and remand the defendant to the custody
18 of the Attorney General of the United States or his or her
19 designated agent to be deported when:
20 (1) a final order of deportation has been issued
21 against the defendant pursuant to proceedings under the
22 Immigration and Nationality Act, and
23 (2) the deportation of the defendant would not
24 deprecate the seriousness of the defendant's conduct and
25 would not be inconsistent with the ends of justice.
26 Otherwise, the defendant shall be sentenced as provided
27 in this Chapter V.
28 (B) If the defendant has already been sentenced for a
29 felony or misdemeanor offense, or has been placed on
30 probation under Section 10 of the Cannabis Control Act or
31 Section 410 of the Illinois Controlled Substances Act, the
32 court may, upon motion of the State's Attorney to suspend the
33 sentence imposed, commit the defendant to the custody of the
34 Attorney General of the United States or his or her
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1 designated agent when:
2 (1) a final order of deportation has been issued
3 against the defendant pursuant to proceedings under the
4 Immigration and Nationality Act, and
5 (2) the deportation of the defendant would not
6 deprecate the seriousness of the defendant's conduct and
7 would not be inconsistent with the ends of justice.
8 (C) This subsection (l) does not apply to offenders who
9 are subject to the provisions of paragraph (2) of subsection
10 (a) of Section 3-6-3.
11 (D) Upon motion of the State's Attorney, if a defendant
12 sentenced under this Section returns to the jurisdiction of
13 the United States, the defendant shall be recommitted to the
14 custody of the county from which he or she was sentenced.
15 Thereafter, the defendant shall be brought before the
16 sentencing court, which may impose any sentence that was
17 available under Section 5-5-3 at the time of initial
18 sentencing. In addition, the defendant shall not be eligible
19 for additional good conduct credit for meritorious service as
20 provided under Section 3-6-6.
21 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
22 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
23 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
24 eff. 5-29-96; 89-477, eff. 6-18-96; 89-507, eff. 7-1-97;
25 89-545, eff. 7-25-96; 89-587, eff. 7-31-96; 89-627, eff.
26 1-1-97; 89-688, eff. 6-1-97; revised 1-7-97.)
27 Section 95. No acceleration or delay. Where this Act
28 makes changes in a statute that is represented in this Act by
29 text that is not yet or no longer in effect (for example, a
30 Section represented by multiple versions), the use of that
31 text does not accelerate or delay the taking effect of (i)
32 the changes made by this Act or (ii) provisions derived from
33 any other Public Act.
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1 Section 99. Effective date. This Act takes effect upon
2 becoming law.