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| 1 | AN ACT concerning criminal law.
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| 2 | Be it enacted by the People of the State of Illinois, | ||||||
| 3 | represented in the General Assembly:
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| 4 | Section 5. The Unified Code of Corrections is amended by | ||||||
| 5 | changing Section 5-5-4 as follows:
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| 6 | (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
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| 7 | Sec. 5-5-4. Resentences.
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| 8 | (a) Where a conviction or sentence has been set aside on | ||||||
| 9 | direct review
or on collateral attack, the court shall not | ||||||
| 10 | impose a new sentence for the same
offense or for a different | ||||||
| 11 | offense based on the same conduct which is more
severe than the | ||||||
| 12 | prior sentence less the portion of the prior sentence
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| 13 | previously satisfied unless the more severe sentence is based | ||||||
| 14 | upon conduct
on the part of the defendant occurring after the | ||||||
| 15 | original sentencing.
If a sentence is vacated on appeal or on | ||||||
| 16 | collateral attack due to the
failure of the trier of fact at | ||||||
| 17 | trial to determine beyond a reasonable doubt
the existence of a | ||||||
| 18 | fact (other than a prior conviction) necessary to increase
the
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| 19 | punishment for the offense beyond the statutory maximum | ||||||
| 20 | otherwise applicable,
either the defendant may be re-sentenced | ||||||
| 21 | to a term within the range otherwise
provided or, if the State | ||||||
| 22 | files notice of its intention to again seek the
extended | ||||||
| 23 | sentence, the defendant shall be afforded a new trial.
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| 1 | (b) If a conviction or sentence has been set aside on | ||||||
| 2 | direct review or on
collateral attack and
the court determines | ||||||
| 3 | by clear and convincing evidence that the defendant was
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| 4 | factually innocent of the
charge, the court shall enter an | ||||||
| 5 | order expunging the record of arrest from the
official records | ||||||
| 6 | of the
arresting authority and order that the records of the | ||||||
| 7 | clerk of the circuit
court and Department of
State Police be | ||||||
| 8 | sealed until further order of the court upon good cause shown
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| 9 | or as otherwise provided
herein, and the name of the defendant | ||||||
| 10 | obliterated from the official index
requested to be kept by the
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| 11 | circuit court clerk under Section 16 of the Clerks of Courts | ||||||
| 12 | Act in connection
with the arrest and
conviction for the | ||||||
| 13 | offense but the order shall not affect any index issued by
the | ||||||
| 14 | circuit court clerk before the entry of the order.
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| 15 | All records sealed by the Department of State Police may be
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| 16 | disseminated by the Department only as required by law or to | ||||||
| 17 | the arresting
authority, the State's Attorney, the court upon a | ||||||
| 18 | later arrest for the same or
similar offense, or for the | ||||||
| 19 | purpose of sentencing for any subsequent felony.
Upon | ||||||
| 20 | conviction for any subsequent offense, the Department of | ||||||
| 21 | Corrections shall
have access to all sealed records of the | ||||||
| 22 | Department
pertaining to that individual.
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| 23 | Upon entry of the order of expungement, the clerk of the | ||||||
| 24 | circuit court shall
promptly mail a copy of the order to the | ||||||
| 25 | person whose records were expunged and
sealed.
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| 26 | (c) If a conviction has been vacated as a result of a claim | ||||||
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| 1 | of actual innocence based on newly discovered evidence made | ||||||
| 2 | under Section 122-1 of the Code of Criminal Procedure of 1963 | ||||||
| 3 | or Section 2-1401 of the Code of Civil Procedure, and the | ||||||
| 4 | provisions of paragraphs (1) and (2) of subsection (g) of | ||||||
| 5 | Section 2-702 of the Code of Civil Procedure are otherwise | ||||||
| 6 | satisfied, the court shall enter an order for a certificate of | ||||||
| 7 | innocence. | ||||||
| 8 | (Source: P.A. 93-210, eff. 7-18-03.)
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