SB2191sam001 97TH GENERAL ASSEMBLY

Sen. Toi W. Hutchinson

Filed: 3/15/2011

09700SB2191sam001 LRB097 07823 AJO 53126 a

AMENDMENT TO SENATE BILL 2191

AMENDMENT NO. ______. Amend Senate Bill 2191 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Civil Procedure is amended by changing Section 2-1401 as follows:

(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)

Sec. 2-1401. Relief from judgments.

(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. Writs of error coram nobis and coram vobis, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered. Except as provided in Section 6 of the Illinois Parentage Act of 1984, there shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.

(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.

(c) Except as provided in Section 20b of the Adoption Act and Section 2-32 of the Juvenile Court Act of 1987 or in a petition based upon Section 116-3 of the Code of Criminal Procedure of 1963, the petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.

(d) The filing of a petition under this Section does not affect the order or judgment, or suspend its operation.

(e) Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order or judgment pursuant to the provisions of this Section does not affect the right, title or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition, nor affect any right of any person not a party to the original action under any certificate of sale issued before the filing of the petition, pursuant to a sale based on the order or judgment.

(f) Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.

(g) A petition under this Section may be filed at any time after the entry of judgment, if the judgment is a conviction where the arresting charge was under Section 11-14 (prostitution) or Section 11-14.2 (first offender; felony prostitution) of the Criminal Code of 1961 or a similar local ordinance and the defendant's participation in the offense was a result of having been a "trafficking victim" under Section 10-9 (involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services) of the Criminal Code of 1961 or a "victim of a severe form of trafficking" under the federal Trafficking Victims Protection Act (U.S.C., Title 22, Chapter 78, Section 7102 (13)), provided that:

(1) A petition under this subsection (g) shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such motion, or for other reasons consistent with the purpose of this subsection (g).

(2) A petition under this subsection (g) must be supported by an affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.

(3) Official documentation of the defendant's status as a "trafficking victim" or a "victim of a severe form of trafficking" from a federal, state, or local government agency shall create a presumption that the defendant's participation in the offense was a result of having been a "trafficking victim" or a "victim of a severe form of trafficking", but shall not be required for granting a petition under this subsection (g).

(4) "Official documentation" includes, but is not limited to, a police report, court record, or affidavit generated from a federal, state, or local government agency.

(5) To be entitled to relief under this subsection (g), the petition must affirmatively set forth specific factual allegations supporting each of the following elements: (i) the existence of a meritorious defense or claim; (ii) due diligence in presenting this defense or claim; and (iii) due diligence in filing the petition for relief.

If the court grants a petition under this subsection (g), it must vacate the judgment and dismiss the accusatory instrument, and may take such additional action as is appropriate in the circumstances.

(Source: P.A. 95-331, eff. 8-21-07.)".