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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 Criminal Identification Act is amended by | ||||||
5 | changing Section 5.2 as follows:
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6 | (20 ILCS 2630/5.2)
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7 | Sec. 5.2. Expungement and sealing. | ||||||
8 | (a) General Provisions. | ||||||
9 | (1) Definitions. In this Act, words and phrases have
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10 | the meanings set forth in this subsection, except when a
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11 | particular context clearly requires a different meaning. | ||||||
12 | (A) The following terms shall have the meanings | ||||||
13 | ascribed to them in the Unified Code of Corrections, | ||||||
14 | 730 ILCS 5/5-1-2 through 5/5-1-22: | ||||||
15 | (i) Business Offense (730 ILCS 5/5-1-2), | ||||||
16 | (ii) Charge (730 ILCS 5/5-1-3), | ||||||
17 | (iii) Court (730 ILCS 5/5-1-6), | ||||||
18 | (iv) Defendant (730 ILCS 5/5-1-7), | ||||||
19 | (v) Felony (730 ILCS 5/5-1-9), | ||||||
20 | (vi) Imprisonment (730 ILCS 5/5-1-10), | ||||||
21 | (vii) Judgment (730 ILCS 5/5-1-12), | ||||||
22 | (viii) Misdemeanor (730 ILCS 5/5-1-14), | ||||||
23 | (ix) Offense (730 ILCS 5/5-1-15), |
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1 | (x) Parole (730 ILCS 5/5-1-16), | ||||||
2 | (xi) Petty Offense (730 ILCS 5/5-1-17), | ||||||
3 | (xii) Probation (730 ILCS 5/5-1-18), | ||||||
4 | (xiii) Sentence (730 ILCS 5/5-1-19), | ||||||
5 | (xiv) Supervision (730 ILCS 5/5-1-21), and | ||||||
6 | (xv) Victim (730 ILCS 5/5-1-22). | ||||||
7 | (B) As used in this Section, "charge not initiated | ||||||
8 | by arrest" means a charge (as defined by 730 ILCS | ||||||
9 | 5/5-1-3) brought against a defendant where the | ||||||
10 | defendant is not arrested prior to or as a direct | ||||||
11 | result of the charge. | ||||||
12 | (C) "Conviction" means a judgment of conviction or | ||||||
13 | sentence entered upon a plea of guilty or upon a | ||||||
14 | verdict or finding of guilty of an offense, rendered by | ||||||
15 | a legally constituted jury or by a court of competent | ||||||
16 | jurisdiction authorized to try the case without a jury. | ||||||
17 | An order of supervision successfully completed by the | ||||||
18 | petitioner is not a conviction. An order of qualified | ||||||
19 | probation (as defined in subsection (a)(1)(J)) | ||||||
20 | successfully completed by the petitioner is not a | ||||||
21 | conviction. An order of supervision or an order of | ||||||
22 | qualified probation that is terminated | ||||||
23 | unsatisfactorily is a conviction, unless the | ||||||
24 | unsatisfactory termination is reversed, vacated, or | ||||||
25 | modified and the judgment of conviction, if any, is | ||||||
26 | reversed or vacated. |
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1 | (D) "Criminal offense" means a petty offense, | ||||||
2 | business offense, misdemeanor, felony, or municipal | ||||||
3 | ordinance violation (as defined in subsection | ||||||
4 | (a)(1)(H)). As used in this Section, a minor traffic | ||||||
5 | offense (as defined in subsection (a)(1)(G)) shall not | ||||||
6 | be considered a criminal offense. | ||||||
7 | (E) "Expunge" means to physically destroy the | ||||||
8 | records or return them to the petitioner and to | ||||||
9 | obliterate the petitioner's name from any official | ||||||
10 | index or public record, or both. Nothing in this Act | ||||||
11 | shall require the physical destruction of the circuit | ||||||
12 | court file, but such records relating to arrests or | ||||||
13 | charges, or both, ordered expunged shall be impounded | ||||||
14 | as required by subsections (d)(9)(A)(ii) and | ||||||
15 | (d)(9)(B)(ii). | ||||||
16 | (F) As used in this Section, "last sentence" means | ||||||
17 | the sentence, order of supervision, or order of | ||||||
18 | qualified probation (as defined by subsection | ||||||
19 | (a)(1)(J)), for a criminal offense (as defined by | ||||||
20 | subsection (a)(1)(D)) that terminates last in time in | ||||||
21 | any jurisdiction, regardless of whether the petitioner | ||||||
22 | has included the criminal offense for which the | ||||||
23 | sentence or order of supervision or qualified | ||||||
24 | probation was imposed in his or her petition. If | ||||||
25 | multiple sentences, orders of supervision, or orders | ||||||
26 | of qualified probation terminate on the same day and |
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1 | are last in time, they shall be collectively considered | ||||||
2 | the "last sentence" regardless of whether they were | ||||||
3 | ordered to run concurrently. | ||||||
4 | (G) "Minor traffic offense" means a petty offense, | ||||||
5 | business offense, or Class C misdemeanor under the | ||||||
6 | Illinois Vehicle Code or a similar provision of a | ||||||
7 | municipal or local ordinance. | ||||||
8 | (H) "Municipal ordinance violation" means an | ||||||
9 | offense defined by a municipal or local ordinance that | ||||||
10 | is criminal in nature and with which the petitioner was | ||||||
11 | charged or for which the petitioner was arrested and | ||||||
12 | released without charging. | ||||||
13 | (I) "Petitioner" means an adult or a minor | ||||||
14 | prosecuted as an
adult who has applied for relief under | ||||||
15 | this Section. | ||||||
16 | (J) "Qualified probation" means an order of | ||||||
17 | probation under Section 10 of the Cannabis Control Act, | ||||||
18 | Section 410 of the Illinois Controlled Substances Act, | ||||||
19 | Section 70 of the Methamphetamine Control and | ||||||
20 | Community Protection Act, Section 5-6-3.3 of the | ||||||
21 | Unified Code of Corrections, Section 12-4.3(b)(1) and | ||||||
22 | (2) of the Criminal Code of 1961 (as those provisions | ||||||
23 | existed before their deletion by Public Act 89-313), | ||||||
24 | Section 10-102 of the Illinois Alcoholism and Other | ||||||
25 | Drug Dependency Act, Section 40-10 of the Alcoholism | ||||||
26 | and Other Drug Abuse and Dependency Act, or Section 10 |
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1 | of the Steroid Control Act. For the purpose of this | ||||||
2 | Section, "successful completion" of an order of | ||||||
3 | qualified probation under Section 10-102 of the | ||||||
4 | Illinois Alcoholism and Other Drug Dependency Act and | ||||||
5 | Section 40-10 of the Alcoholism and Other Drug Abuse | ||||||
6 | and Dependency Act means that the probation was | ||||||
7 | terminated satisfactorily and the judgment of | ||||||
8 | conviction was vacated. | ||||||
9 | (K) "Seal" means to physically and electronically | ||||||
10 | maintain the records, unless the records would | ||||||
11 | otherwise be destroyed due to age, but to make the | ||||||
12 | records unavailable without a court order, subject to | ||||||
13 | the exceptions in Sections 12 and 13 of this Act. The | ||||||
14 | petitioner's name shall also be obliterated from the | ||||||
15 | official index required to be kept by the circuit court | ||||||
16 | clerk under Section 16 of the Clerks of Courts Act, but | ||||||
17 | any index issued by the circuit court clerk before the | ||||||
18 | entry of the order to seal shall not be affected. | ||||||
19 | (L) "Sexual offense committed against a minor" | ||||||
20 | includes but is
not limited to the offenses of indecent | ||||||
21 | solicitation of a child
or criminal sexual abuse when | ||||||
22 | the victim of such offense is
under 18 years of age. | ||||||
23 | (M) "Terminate" as it relates to a sentence or | ||||||
24 | order of supervision or qualified probation includes | ||||||
25 | either satisfactory or unsatisfactory termination of | ||||||
26 | the sentence, unless otherwise specified in this |
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1 | Section. | ||||||
2 | (2) Minor Traffic Offenses.
Orders of supervision or | ||||||
3 | convictions for minor traffic offenses shall not affect a | ||||||
4 | petitioner's eligibility to expunge or seal records | ||||||
5 | pursuant to this Section. | ||||||
6 | (3) Exclusions. Except as otherwise provided in | ||||||
7 | subsections (b)(5), (b)(6), (b)(8), (e), and (e-5) of this | ||||||
8 | Section, the court shall not order: | ||||||
9 | (A) the sealing or expungement of the records of | ||||||
10 | arrests or charges not initiated by arrest that result | ||||||
11 | in an order of supervision for or conviction of:
(i) | ||||||
12 | any sexual offense committed against a
minor; (ii) | ||||||
13 | Section 11-501 of the Illinois Vehicle Code or a | ||||||
14 | similar provision of a local ordinance; or (iii) | ||||||
15 | Section 11-503 of the Illinois Vehicle Code or a | ||||||
16 | similar provision of a local ordinance, unless the | ||||||
17 | arrest or charge is for a misdemeanor violation of | ||||||
18 | subsection (a) of Section 11-503 or a similar provision | ||||||
19 | of a local ordinance, that occurred prior to the | ||||||
20 | offender reaching the age of 25 years and the offender | ||||||
21 | has no other conviction for violating Section 11-501 or | ||||||
22 | 11-503 of the Illinois Vehicle Code or a similar | ||||||
23 | provision of a local ordinance. | ||||||
24 | (B) the sealing or expungement of records of minor | ||||||
25 | traffic offenses (as defined in subsection (a)(1)(G)), | ||||||
26 | unless the petitioner was arrested and released |
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1 | without charging. | ||||||
2 | (C) the sealing of the records of arrests or | ||||||
3 | charges not initiated by arrest which result in an | ||||||
4 | order of supervision, an order of qualified probation | ||||||
5 | (as defined in subsection (a)(1)(J)), or a conviction | ||||||
6 | for the following offenses: | ||||||
7 | (i) offenses included in Article 11 of the | ||||||
8 | Criminal Code of 1961 or the Criminal Code of 2012 | ||||||
9 | or a similar provision of a local ordinance, except | ||||||
10 | Section 11-14 of the Criminal Code of 1961 or the | ||||||
11 | Criminal Code of 2012, or a similar provision of a | ||||||
12 | local ordinance; | ||||||
13 | (ii) Section 11-1.50, 12-3.4, 12-15, 12-30, | ||||||
14 | 26-5, or 48-1 of the Criminal Code of 1961 or the | ||||||
15 | Criminal Code of 2012, or a similar provision of a | ||||||
16 | local ordinance; | ||||||
17 | (iii) offenses defined as "crimes of violence" | ||||||
18 | in Section 2 of the Crime Victims Compensation Act | ||||||
19 | or a similar provision of a local ordinance; | ||||||
20 | (iv) offenses which are Class A misdemeanors | ||||||
21 | under the Humane Care for Animals Act; or | ||||||
22 | (v) any offense or attempted offense that | ||||||
23 | would subject a person to registration under the | ||||||
24 | Sex Offender Registration Act. | ||||||
25 | (D) the sealing of the records of an arrest which | ||||||
26 | results in
the petitioner being charged with a felony |
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1 | offense or records of a charge not initiated by arrest | ||||||
2 | for a felony offense unless: | ||||||
3 | (i) the charge is amended to a misdemeanor and | ||||||
4 | is otherwise
eligible to be sealed pursuant to | ||||||
5 | subsection (c); | ||||||
6 | (ii) the charge is brought along with another | ||||||
7 | charge as a part of one case and the charge results | ||||||
8 | in acquittal, dismissal, or conviction when the | ||||||
9 | conviction was reversed or vacated, and another | ||||||
10 | charge brought in the same case results in a | ||||||
11 | disposition for a misdemeanor offense that is | ||||||
12 | eligible to be sealed pursuant to subsection (c) or | ||||||
13 | a disposition listed in paragraph (i), (iii), or | ||||||
14 | (iv) of this subsection; | ||||||
15 | (iii) the charge results in first offender | ||||||
16 | probation as set forth in subsection (c)(2)(E); | ||||||
17 | (iv) the charge is for a Class 4 felony offense | ||||||
18 | listed in subsection (c)(2)(F) or the charge is | ||||||
19 | amended to a Class 4 felony offense listed in | ||||||
20 | subsection (c)(2)(F). Records of arrests which | ||||||
21 | result in the petitioner being charged with a Class | ||||||
22 | 4 felony offense listed in subsection (c)(2)(F), | ||||||
23 | records of charges not initiated by arrest for | ||||||
24 | Class 4 felony offenses listed in subsection | ||||||
25 | (c)(2)(F), and records of charges amended to a | ||||||
26 | Class 4 felony offense listed in (c)(2)(F) may be |
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1 | sealed, regardless of the disposition, subject to | ||||||
2 | any waiting periods set forth in subsection | ||||||
3 | (c)(3); | ||||||
4 | (v) the charge results in acquittal, | ||||||
5 | dismissal, or the petitioner's release without | ||||||
6 | conviction; or | ||||||
7 | (vi) the charge results in a conviction, but | ||||||
8 | the conviction was reversed or vacated. | ||||||
9 | (b) Expungement. | ||||||
10 | (1) A petitioner may petition the circuit court to | ||||||
11 | expunge the
records of his or her arrests and charges not | ||||||
12 | initiated by arrest when: | ||||||
13 | (A) He or she has never been convicted of a | ||||||
14 | criminal offense; and | ||||||
15 | (B) Each arrest or charge not initiated by arrest
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16 | sought to be expunged resulted in:
(i) acquittal, | ||||||
17 | dismissal, or the petitioner's release without | ||||||
18 | charging, unless excluded by subsection (a)(3)(B);
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19 | (ii) a conviction which was vacated or reversed, unless | ||||||
20 | excluded by subsection (a)(3)(B);
(iii) an order of | ||||||
21 | supervision and such supervision was successfully | ||||||
22 | completed by the petitioner, unless excluded by | ||||||
23 | subsection (a)(3)(A) or (a)(3)(B); or
(iv) an order of | ||||||
24 | qualified probation (as defined in subsection | ||||||
25 | (a)(1)(J)) and such probation was successfully | ||||||
26 | completed by the petitioner. |
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1 | (2) Time frame for filing a petition to expunge. | ||||||
2 | (A) When the arrest or charge not initiated by | ||||||
3 | arrest sought to be expunged resulted in an acquittal, | ||||||
4 | dismissal, the petitioner's release without charging, | ||||||
5 | or the reversal or vacation of a conviction, there is | ||||||
6 | no waiting period to petition for the expungement of | ||||||
7 | such records. | ||||||
8 | (B) When the arrest or charge not initiated by | ||||||
9 | arrest
sought to be expunged resulted in an order of | ||||||
10 | supervision, successfully
completed by the petitioner, | ||||||
11 | the following time frames will apply: | ||||||
12 | (i) Those arrests or charges that resulted in | ||||||
13 | orders of
supervision under Section 3-707, 3-708, | ||||||
14 | 3-710, or 5-401.3 of the Illinois Vehicle Code or a | ||||||
15 | similar provision of a local ordinance, or under | ||||||
16 | Section 11-1.50, 12-3.2, or 12-15 of the Criminal | ||||||
17 | Code of 1961 or the Criminal Code of 2012, or a | ||||||
18 | similar provision of a local ordinance, shall not | ||||||
19 | be eligible for expungement until 5 years have | ||||||
20 | passed following the satisfactory termination of | ||||||
21 | the supervision. | ||||||
22 | (i-5) Those arrests or charges that resulted | ||||||
23 | in orders of supervision for a misdemeanor | ||||||
24 | violation of subsection (a) of Section 11-503 of | ||||||
25 | the Illinois Vehicle Code or a similar provision of | ||||||
26 | a local ordinance, that occurred prior to the |
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1 | offender reaching the age of 25 years and the | ||||||
2 | offender has no other conviction for violating | ||||||
3 | Section 11-501 or 11-503 of the Illinois Vehicle | ||||||
4 | Code or a similar provision of a local ordinance | ||||||
5 | shall not be eligible for expungement until the | ||||||
6 | petitioner has reached the age of 25 years. | ||||||
7 | (ii) Those arrests or charges that resulted in | ||||||
8 | orders
of supervision for any other offenses shall | ||||||
9 | not be
eligible for expungement until 2 years have | ||||||
10 | passed
following the satisfactory termination of | ||||||
11 | the supervision. | ||||||
12 | (C) When the arrest or charge not initiated by | ||||||
13 | arrest sought to
be expunged resulted in an order of | ||||||
14 | qualified probation, successfully
completed by the | ||||||
15 | petitioner, such records shall not be eligible for
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16 | expungement until 5 years have passed following the | ||||||
17 | satisfactory
termination of the probation. | ||||||
18 | (3) Those records maintained by the Department for
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19 | persons arrested prior to their 17th birthday shall be
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20 | expunged as provided in Section 5-915 of the Juvenile Court
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21 | Act of 1987. | ||||||
22 | (4) Whenever a person has been arrested for or | ||||||
23 | convicted of any
offense, in the name of a person whose | ||||||
24 | identity he or she has stolen or otherwise
come into | ||||||
25 | possession of, the aggrieved person from whom the identity
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26 | was stolen or otherwise obtained without authorization,
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1 | upon learning of the person having been arrested using his
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2 | or her identity, may, upon verified petition to the chief | ||||||
3 | judge of
the circuit wherein the arrest was made, have a | ||||||
4 | court order
entered nunc pro tunc by the Chief Judge to | ||||||
5 | correct the
arrest record, conviction record, if any, and | ||||||
6 | all official
records of the arresting authority, the | ||||||
7 | Department, other
criminal justice agencies, the | ||||||
8 | prosecutor, and the trial
court concerning such arrest, if | ||||||
9 | any, by removing his or her name
from all such records in | ||||||
10 | connection with the arrest and
conviction, if any, and by | ||||||
11 | inserting in the records the
name of the offender, if known | ||||||
12 | or ascertainable, in lieu of
the aggrieved's name. The | ||||||
13 | records of the circuit court clerk shall be sealed until | ||||||
14 | further order of
the court upon good cause shown and the | ||||||
15 | name of the
aggrieved person obliterated on the official | ||||||
16 | index
required to be kept by the circuit court clerk under
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17 | Section 16 of the Clerks of Courts Act, but the order shall
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18 | not affect any index issued by the circuit court clerk
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19 | before the entry of the order. Nothing in this Section
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20 | shall limit the Department of State Police or other
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21 | criminal justice agencies or prosecutors from listing
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22 | under an offender's name the false names he or she has
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23 | used. | ||||||
24 | (5) Whenever a person has been convicted of criminal
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25 | sexual assault, aggravated criminal sexual assault,
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26 | predatory criminal sexual assault of a child, criminal
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1 | sexual abuse, or aggravated criminal sexual abuse, the
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2 | victim of that offense may request that the State's
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3 | Attorney of the county in which the conviction occurred
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4 | file a verified petition with the presiding trial judge at
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5 | the petitioner's trial to have a court order entered to | ||||||
6 | seal
the records of the circuit court clerk in connection
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7 | with the proceedings of the trial court concerning that
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8 | offense. However, the records of the arresting authority
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9 | and the Department of State Police concerning the offense
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10 | shall not be sealed. The court, upon good cause shown,
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11 | shall make the records of the circuit court clerk in
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12 | connection with the proceedings of the trial court
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13 | concerning the offense available for public inspection. | ||||||
14 | (6) If a conviction has been set aside on direct review
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15 | or on collateral attack and the court determines by clear
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16 | and convincing evidence that the petitioner was factually
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17 | innocent of the charge, the court that finds the petitioner | ||||||
18 | factually innocent of the charge shall enter an
expungement | ||||||
19 | order for the conviction for which the petitioner has been | ||||||
20 | determined to be innocent as provided in subsection (b) of | ||||||
21 | Section
5-5-4 of the Unified Code of Corrections. | ||||||
22 | (7) Nothing in this Section shall prevent the | ||||||
23 | Department of
State Police from maintaining all records of | ||||||
24 | any person who
is admitted to probation upon terms and | ||||||
25 | conditions and who
fulfills those terms and conditions | ||||||
26 | pursuant to Section 10
of the Cannabis Control Act, Section |
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1 | 410 of the Illinois
Controlled Substances Act, Section 70 | ||||||
2 | of the
Methamphetamine Control and Community Protection | ||||||
3 | Act,
Section 5-6-3.3 of the Unified Code of Corrections, | ||||||
4 | Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of | ||||||
5 | the Criminal Code of 1961 or the Criminal Code of 2012, | ||||||
6 | Section 10-102
of the Illinois Alcoholism and Other Drug | ||||||
7 | Dependency Act,
Section 40-10 of the Alcoholism and Other | ||||||
8 | Drug Abuse and
Dependency Act, or Section 10 of the Steroid | ||||||
9 | Control Act. | ||||||
10 | (8) If the petitioner has been granted a certificate of | ||||||
11 | innocence under Section 2-702 of the Code of Civil | ||||||
12 | Procedure, the court that grants the certificate of | ||||||
13 | innocence shall also enter an order expunging the | ||||||
14 | conviction for which the petitioner has been determined to | ||||||
15 | be innocent as provided in subsection (h) of Section 2-702 | ||||||
16 | of the Code of Civil Procedure. | ||||||
17 | (c) Sealing. | ||||||
18 | (1) Applicability. Notwithstanding any other provision | ||||||
19 | of this Act to the contrary, and cumulative with any rights | ||||||
20 | to expungement of criminal records, this subsection | ||||||
21 | authorizes the sealing of criminal records of adults and of | ||||||
22 | minors prosecuted as adults. | ||||||
23 | (2) Eligible Records. The following records may be | ||||||
24 | sealed: | ||||||
25 | (A) All arrests resulting in release without | ||||||
26 | charging; |
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1 | (B) Arrests or charges not initiated by arrest | ||||||
2 | resulting in acquittal, dismissal, or conviction when | ||||||
3 | the conviction was reversed or vacated, except as | ||||||
4 | excluded by subsection (a)(3)(B); | ||||||
5 | (C) Arrests or charges not initiated by arrest | ||||||
6 | resulting in orders of supervision successfully | ||||||
7 | completed by the petitioner, unless excluded by | ||||||
8 | subsection (a)(3); | ||||||
9 | (D) Arrests or charges not initiated by arrest | ||||||
10 | resulting in convictions unless excluded by subsection | ||||||
11 | (a)(3); | ||||||
12 | (E) Arrests or charges not initiated by arrest | ||||||
13 | resulting in orders of first offender probation under | ||||||
14 | Section 10 of the Cannabis Control Act, Section 410 of | ||||||
15 | the Illinois Controlled Substances Act, Section 70 of | ||||||
16 | the Methamphetamine Control and Community Protection | ||||||
17 | Act, or Section 5-6-3.3 of the Unified Code of | ||||||
18 | Corrections; and | ||||||
19 | (F) Arrests or charges not initiated by arrest | ||||||
20 | resulting in Class 4 felony convictions for the | ||||||
21 | following offenses: | ||||||
22 | (i) Section 11-14 of the Criminal Code of 1961 | ||||||
23 | or the Criminal Code of 2012; | ||||||
24 | (ii) Section 4 of the Cannabis Control Act; | ||||||
25 | (iii) Section 402 of the Illinois Controlled | ||||||
26 | Substances Act; |
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| |||||||
1 | (iv) the Methamphetamine Precursor Control | ||||||
2 | Act; and | ||||||
3 | (v) the Steroid Control Act. | ||||||
4 | (3) When Records Are Eligible to Be Sealed. Records | ||||||
5 | identified as eligible under subsection (c)(2) may be | ||||||
6 | sealed as follows: | ||||||
7 | (A) Records identified as eligible under | ||||||
8 | subsection (c)(2)(A) and (c)(2)(B) may be sealed at any | ||||||
9 | time. | ||||||
10 | (B) Records identified as eligible under | ||||||
11 | subsection (c)(2)(C) may be sealed
(i) 3 years after | ||||||
12 | the termination of petitioner's last sentence (as | ||||||
13 | defined in subsection (a)(1)(F)) if the petitioner has | ||||||
14 | never been convicted of a criminal offense (as defined | ||||||
15 | in subsection (a)(1)(D)); or
(ii) 4 years after the | ||||||
16 | termination of the petitioner's last sentence (as | ||||||
17 | defined in subsection (a)(1)(F)) if the petitioner has | ||||||
18 | ever been convicted of a criminal offense (as defined | ||||||
19 | in subsection (a)(1)(D)). | ||||||
20 | (C) Records identified as eligible under | ||||||
21 | subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be | ||||||
22 | sealed 4 years after the termination of the | ||||||
23 | petitioner's last sentence (as defined in subsection | ||||||
24 | (a)(1)(F)). | ||||||
25 | (D) Records identified in subsection | ||||||
26 | (a)(3)(A)(iii) may be sealed after the petitioner has |
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1 | reached the age of 25 years. | ||||||
2 | (4) Subsequent felony convictions. A person may not | ||||||
3 | have
subsequent felony conviction records sealed as | ||||||
4 | provided in this subsection
(c) if he or she is convicted | ||||||
5 | of any felony offense after the date of the
sealing of | ||||||
6 | prior felony convictions as provided in this subsection | ||||||
7 | (c). The court may, upon conviction for a subsequent felony | ||||||
8 | offense, order the unsealing of prior felony conviction | ||||||
9 | records previously ordered sealed by the court. | ||||||
10 | (5) Notice of eligibility for sealing. Upon entry of a | ||||||
11 | disposition for an eligible record under this subsection | ||||||
12 | (c), the petitioner shall be informed by the court of the | ||||||
13 | right to have the records sealed and the procedures for the | ||||||
14 | sealing of the records. | ||||||
15 | (d) Procedure. The following procedures apply to | ||||||
16 | expungement under subsections (b) and (e), and sealing under | ||||||
17 | subsections (c) and (e-5): | ||||||
18 | (1) Filing the petition. Upon becoming eligible to | ||||||
19 | petition for
the expungement or sealing of records under | ||||||
20 | this Section, the petitioner shall file a petition | ||||||
21 | requesting the expungement
or sealing of records with the | ||||||
22 | clerk of the court where the arrests occurred or the | ||||||
23 | charges were brought, or both. If arrests occurred or | ||||||
24 | charges were brought in multiple jurisdictions, a petition | ||||||
25 | must be filed in each such jurisdiction. The petitioner | ||||||
26 | shall pay the applicable fee, if not waived. |
| |||||||
| |||||||
1 | (2) Contents of petition. The petition shall be
| ||||||
2 | verified and shall contain the petitioner's name, date of
| ||||||
3 | birth, current address and, for each arrest or charge not | ||||||
4 | initiated by
arrest sought to be sealed or expunged, the | ||||||
5 | case number, the date of
arrest (if any), the identity of | ||||||
6 | the arresting authority, and such
other information as the | ||||||
7 | court may require. During the pendency
of the proceeding, | ||||||
8 | the petitioner shall promptly notify the
circuit court | ||||||
9 | clerk of any change of his or her address. If the | ||||||
10 | petitioner has received a certificate of eligibility for | ||||||
11 | sealing from the Prisoner Review Board under paragraph (10) | ||||||
12 | of subsection (a) of Section 3-3-2 of the Unified Code of | ||||||
13 | Corrections, the certificate shall be attached to the | ||||||
14 | petition. | ||||||
15 | (3) Drug test. The petitioner must attach to the | ||||||
16 | petition proof that the petitioner has passed a test taken | ||||||
17 | within 30 days before the filing of the petition showing | ||||||
18 | the absence within his or her body of all illegal | ||||||
19 | substances as defined by the Illinois Controlled | ||||||
20 | Substances Act, the Methamphetamine Control and Community | ||||||
21 | Protection Act, and the Cannabis Control Act if he or she | ||||||
22 | is petitioning to seal felony records pursuant to clause | ||||||
23 | (c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is | ||||||
24 | petitioning to expunge felony records of a qualified | ||||||
25 | probation pursuant to clause (b)(1)(B)(iv). | ||||||
26 | (4) Service of petition. The circuit court clerk shall |
| |||||||
| |||||||
1 | promptly
serve a copy of the petition on the State's | ||||||
2 | Attorney or
prosecutor charged with the duty of prosecuting | ||||||
3 | the
offense, the Department of State Police, the arresting
| ||||||
4 | agency and the chief legal officer of the unit of local
| ||||||
5 | government effecting the arrest. | ||||||
6 | (5) Objections. | ||||||
7 | (A) Any party entitled to notice of the petition | ||||||
8 | may file an objection to the petition. All objections | ||||||
9 | shall be in writing, shall be filed with the circuit | ||||||
10 | court clerk, and shall state with specificity the basis | ||||||
11 | of the objection. | ||||||
12 | (B) Objections to a petition to expunge or seal | ||||||
13 | must be filed within 60 days of the date of service of | ||||||
14 | the petition. | ||||||
15 | (6) Entry of order. | ||||||
16 | (A) The Chief Judge of the circuit wherein the | ||||||
17 | charge was brought, any judge of that circuit | ||||||
18 | designated by the Chief Judge, or in counties of less | ||||||
19 | than 3,000,000 inhabitants, the presiding trial judge | ||||||
20 | at the petitioner's trial, if any, shall rule on the | ||||||
21 | petition to expunge or seal as set forth in this | ||||||
22 | subsection (d)(6). | ||||||
23 | (B) Unless the State's Attorney or prosecutor, the | ||||||
24 | Department of
State Police, the arresting agency, or | ||||||
25 | the chief legal officer
files an objection to the | ||||||
26 | petition to expunge or seal within 60 days from the |
| |||||||
| |||||||
1 | date of service of the petition, the court shall enter | ||||||
2 | an order granting or denying the petition. | ||||||
3 | (7) Hearings. If an objection is filed, the court shall | ||||||
4 | set a date for a hearing and notify the petitioner and all | ||||||
5 | parties entitled to notice of the petition of the hearing | ||||||
6 | date at least 30 days prior to the hearing, and shall hear | ||||||
7 | evidence on whether the petition should or should not be | ||||||
8 | granted, and shall grant or deny the petition to expunge or | ||||||
9 | seal the records based on the evidence presented at the | ||||||
10 | hearing. | ||||||
11 | (8) Service of order. After entering an order to | ||||||
12 | expunge or
seal records, the court must provide copies of | ||||||
13 | the order to the
Department, in a form and manner | ||||||
14 | prescribed by the Department,
to the petitioner, to the | ||||||
15 | State's Attorney or prosecutor
charged with the duty of | ||||||
16 | prosecuting the offense, to the
arresting agency, to the | ||||||
17 | chief legal officer of the unit of
local government | ||||||
18 | effecting the arrest, and to such other
criminal justice | ||||||
19 | agencies as may be ordered by the court. | ||||||
20 | (9) Effect of order. | ||||||
21 | (A) Upon entry of an order to expunge records | ||||||
22 | pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: | ||||||
23 | (i) the records shall be expunged (as defined | ||||||
24 | in subsection (a)(1)(E)) by the arresting agency, | ||||||
25 | the Department, and any other agency as ordered by | ||||||
26 | the court, within 60 days of the date of service of |
| |||||||
| |||||||
1 | the order, unless a motion to vacate, modify, or | ||||||
2 | reconsider the order is filed pursuant to | ||||||
3 | paragraph (12) of subsection (d) of this Section; | ||||||
4 | (ii) the records of the circuit court clerk | ||||||
5 | shall be impounded until further order of the court | ||||||
6 | upon good cause shown and the name of the | ||||||
7 | petitioner obliterated on the official index | ||||||
8 | required to be kept by the circuit court clerk | ||||||
9 | under Section 16 of the Clerks of Courts Act, but | ||||||
10 | the order shall not affect any index issued by the | ||||||
11 | circuit court clerk before the entry of the order; | ||||||
12 | and | ||||||
13 | (iii) in response to an inquiry for expunged | ||||||
14 | records, the court, the Department, or the agency | ||||||
15 | receiving such inquiry, shall reply as it does in | ||||||
16 | response to inquiries when no records ever | ||||||
17 | existed. | ||||||
18 | (B) Upon entry of an order to expunge records | ||||||
19 | pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: | ||||||
20 | (i) the records shall be expunged (as defined | ||||||
21 | in subsection (a)(1)(E)) by the arresting agency | ||||||
22 | and any other agency as ordered by the court, | ||||||
23 | within 60 days of the date of service of the order, | ||||||
24 | unless a motion to vacate, modify, or reconsider | ||||||
25 | the order is filed pursuant to paragraph (12) of | ||||||
26 | subsection (d) of this Section; |
| |||||||
| |||||||
1 | (ii) the records of the circuit court clerk | ||||||
2 | shall be impounded until further order of the court | ||||||
3 | upon good cause shown and the name of the | ||||||
4 | petitioner obliterated on the official index | ||||||
5 | required to be kept by the circuit court clerk | ||||||
6 | under Section 16 of the Clerks of Courts Act, but | ||||||
7 | the order shall not affect any index issued by the | ||||||
8 | circuit court clerk before the entry of the order; | ||||||
9 | (iii) the records shall be impounded by the
| ||||||
10 | Department within 60 days of the date of service of | ||||||
11 | the order as ordered by the court, unless a motion | ||||||
12 | to vacate, modify, or reconsider the order is filed | ||||||
13 | pursuant to paragraph (12) of subsection (d) of | ||||||
14 | this Section; | ||||||
15 | (iv) records impounded by the Department may | ||||||
16 | be disseminated by the Department only as required | ||||||
17 | by law or to the arresting authority, the State's | ||||||
18 | Attorney, and the court upon a later arrest for the | ||||||
19 | same or a similar offense or for the purpose of | ||||||
20 | sentencing for any subsequent felony, and to the | ||||||
21 | Department of Corrections upon conviction for any | ||||||
22 | offense; and | ||||||
23 | (v) in response to an inquiry for such records | ||||||
24 | from anyone not authorized by law to access such | ||||||
25 | records the court, the Department, or the agency | ||||||
26 | receiving such inquiry shall reply as it does in |
| |||||||
| |||||||
1 | response to inquiries when no records ever | ||||||
2 | existed. | ||||||
3 | (C) Upon entry of an order to seal records under | ||||||
4 | subsection
(c), the arresting agency, any other agency | ||||||
5 | as ordered by the court, the Department, and the court | ||||||
6 | shall seal the records (as defined in subsection | ||||||
7 | (a)(1)(K)). In response to an inquiry for such records | ||||||
8 | from anyone not authorized by law to access such | ||||||
9 | records the court, the Department, or the agency | ||||||
10 | receiving such inquiry shall reply as it does in | ||||||
11 | response to inquiries when no records ever existed. | ||||||
12 | (10) Fees. The Department may charge the petitioner a | ||||||
13 | fee equivalent to the cost of processing any order to | ||||||
14 | expunge or seal records. Notwithstanding any provision of | ||||||
15 | the Clerks of Courts Act to the contrary, the circuit court | ||||||
16 | clerk may charge a fee equivalent to the cost associated | ||||||
17 | with the sealing or expungement of records by the circuit | ||||||
18 | court clerk. From the total filing fee collected for the | ||||||
19 | petition to seal or expunge, the circuit court clerk shall | ||||||
20 | deposit $10 into the Circuit Court Clerk Operation and | ||||||
21 | Administrative Fund, to be used to offset the costs | ||||||
22 | incurred by the circuit court clerk in performing the | ||||||
23 | additional duties required to serve the petition to seal or | ||||||
24 | expunge on all parties. The circuit court clerk shall | ||||||
25 | collect and forward the Department of State Police portion | ||||||
26 | of the fee to the Department and it shall be deposited in |
| |||||||
| |||||||
1 | the State Police Services Fund. | ||||||
2 | (11) Final Order. No court order issued under the | ||||||
3 | expungement or sealing provisions of this Section shall | ||||||
4 | become final for purposes of appeal until 30 days after | ||||||
5 | service of the order on the petitioner and all parties | ||||||
6 | entitled to notice of the petition. | ||||||
7 | (12) Motion to Vacate, Modify, or Reconsider. The | ||||||
8 | petitioner or any party entitled to notice may file a | ||||||
9 | motion to vacate, modify, or reconsider the order granting | ||||||
10 | or denying the petition to expunge or seal within 60 days | ||||||
11 | of service of the order. | ||||||
12 | (e) Whenever a person who has been convicted of an offense | ||||||
13 | is granted
a pardon by the Governor which specifically | ||||||
14 | authorizes expungement, he or she may,
upon verified petition | ||||||
15 | to the Chief Judge of the circuit where the person had
been | ||||||
16 | convicted, any judge of the circuit designated by the Chief | ||||||
17 | Judge, or in
counties of less than 3,000,000 inhabitants, the | ||||||
18 | presiding trial judge at the
defendant's trial, have a court | ||||||
19 | order entered expunging the record of
arrest from the official | ||||||
20 | records of the arresting authority and order that the
records | ||||||
21 | of the circuit court clerk and the Department be sealed until
| ||||||
22 | further order of the court upon good cause shown or as | ||||||
23 | otherwise provided
herein, and the name of the defendant | ||||||
24 | obliterated from the official index
requested to be kept by the | ||||||
25 | circuit court clerk under Section 16 of the Clerks
of Courts | ||||||
26 | Act in connection with the arrest and conviction for the |
| |||||||
| |||||||
1 | offense for
which he or she had been pardoned but the order | ||||||
2 | shall not affect any index issued by
the circuit court clerk | ||||||
3 | before the entry of the order. All records sealed by
the | ||||||
4 | Department may be disseminated by the Department only to the | ||||||
5 | arresting authority, the State's Attorney, and the court upon a | ||||||
6 | later
arrest for the same or similar offense or for the purpose | ||||||
7 | of sentencing for any
subsequent felony. Upon conviction for | ||||||
8 | any subsequent offense, the Department
of Corrections shall | ||||||
9 | have access to all sealed records of the Department
pertaining | ||||||
10 | to that individual. Upon entry of the order of expungement, the
| ||||||
11 | circuit court clerk shall promptly mail a copy of the order to | ||||||
12 | the
person who was pardoned. | ||||||
13 | (e-5) Whenever a person who has been convicted of an | ||||||
14 | offense is granted a certificate of eligibility for sealing by | ||||||
15 | the Prisoner Review Board which specifically authorizes | ||||||
16 | sealing, he or she may, upon verified petition to the Chief | ||||||
17 | Judge of the circuit where the person had been convicted, any | ||||||
18 | judge of the circuit designated by the Chief Judge, or in | ||||||
19 | counties of less than 3,000,000 inhabitants, the presiding | ||||||
20 | trial judge at the petitioner's trial, have a court order | ||||||
21 | entered sealing the record of arrest from the official records | ||||||
22 | of the arresting authority and order that the records of the | ||||||
23 | circuit court clerk and the Department be sealed until further | ||||||
24 | order of the court upon good cause shown or as otherwise | ||||||
25 | provided herein, and the name of the petitioner obliterated | ||||||
26 | from the official index requested to be kept by the circuit |
| |||||||
| |||||||
1 | court clerk under Section 16 of the Clerks of Courts Act in | ||||||
2 | connection with the arrest and conviction for the offense for | ||||||
3 | which he or she had been granted the certificate but the order | ||||||
4 | shall not affect any index issued by the circuit court clerk | ||||||
5 | before the entry of the order. All records sealed by the | ||||||
6 | Department may be disseminated by the Department only as | ||||||
7 | required by this Act or to the arresting authority, a law | ||||||
8 | enforcement agency, the State's Attorney, and the court upon a | ||||||
9 | later arrest for the same or similar offense or for the purpose | ||||||
10 | of sentencing for any subsequent felony. Upon conviction for | ||||||
11 | any subsequent offense, the Department of Corrections shall | ||||||
12 | have access to all sealed records of the Department pertaining | ||||||
13 | to that individual. Upon entry of the order of sealing, the | ||||||
14 | circuit court clerk shall promptly mail a copy of the order to | ||||||
15 | the person who was granted the certificate of eligibility for | ||||||
16 | sealing. | ||||||
17 | (f) Subject to available funding, the Illinois Department
| ||||||
18 | of Corrections shall conduct a study of the impact of sealing,
| ||||||
19 | especially on employment and recidivism rates, utilizing a
| ||||||
20 | random sample of those who apply for the sealing of their
| ||||||
21 | criminal records under Public Act 93-211. At the request of the
| ||||||
22 | Illinois Department of Corrections, records of the Illinois
| ||||||
23 | Department of Employment Security shall be utilized as
| ||||||
24 | appropriate to assist in the study. The study shall not
| ||||||
25 | disclose any data in a manner that would allow the
| ||||||
26 | identification of any particular individual or employing unit.
|
| |||||||
| |||||||
1 | The study shall be made available to the General Assembly no
| ||||||
2 | later than September 1, 2010.
| ||||||
3 | (Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10; | ||||||
4 | 96-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff. | ||||||
5 | 7-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443, | ||||||
6 | eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13; | ||||||
7 | 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff. | ||||||
8 | 1-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.) | ||||||
9 | Section 10. The Unified Code of Corrections is amended by | ||||||
10 | changing Section 5-5-4 as follows:
| ||||||
11 | (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
| ||||||
12 | Sec. 5-5-4. Resentences.
| ||||||
13 | (a) Where a conviction or sentence has been set aside on | ||||||
14 | direct review
or on collateral attack, the court shall not | ||||||
15 | impose a new sentence for the same
offense or for a different | ||||||
16 | offense based on the same conduct which is more
severe than the | ||||||
17 | prior sentence less the portion of the prior sentence
| ||||||
18 | previously satisfied unless the more severe sentence is based | ||||||
19 | upon conduct
on the part of the defendant occurring after the | ||||||
20 | original sentencing.
If a sentence is vacated on appeal or on | ||||||
21 | collateral attack due to the
failure of the trier of fact at | ||||||
22 | trial to determine beyond a reasonable doubt
the existence of a | ||||||
23 | fact (other than a prior conviction) necessary to increase
the
| ||||||
24 | punishment for the offense beyond the statutory maximum |
| |||||||
| |||||||
1 | otherwise applicable,
either the defendant may be re-sentenced | ||||||
2 | to a term within the range otherwise
provided or, if the State | ||||||
3 | files notice of its intention to again seek the
extended | ||||||
4 | sentence, the defendant shall be afforded a new trial.
| ||||||
5 | (b) If a conviction or sentence has been set aside on | ||||||
6 | direct review or on
collateral attack and
the court determines | ||||||
7 | by clear and convincing evidence that the defendant was
| ||||||
8 | factually innocent of the
charge, the court shall enter an | ||||||
9 | order expunging the record of arrest from the
official records | ||||||
10 | of the
arresting authority and order that the records of the | ||||||
11 | clerk of the circuit
court and Department of
State Police be | ||||||
12 | sealed until further order of the court upon good cause shown
| ||||||
13 | or as otherwise provided
herein, and the name of the defendant | ||||||
14 | obliterated from the official index
requested to be kept by the
| ||||||
15 | circuit court clerk under Section 16 of the Clerks of Courts | ||||||
16 | Act in connection
with the arrest and
conviction for the | ||||||
17 | offense but the order shall not affect any index issued by
the | ||||||
18 | circuit court clerk before the entry of the order. The court | ||||||
19 | shall enter the expungement order regardless of whether the | ||||||
20 | defendant has prior criminal convictions.
| ||||||
21 | All records sealed by the Department of State Police may be
| ||||||
22 | disseminated by the Department only as required by law or to | ||||||
23 | the arresting
authority, the State's Attorney, the court upon a | ||||||
24 | later arrest for the same or
similar offense, or for the | ||||||
25 | purpose of sentencing for any subsequent felony.
Upon | ||||||
26 | conviction for any subsequent offense, the Department of |
| |||||||
| |||||||
1 | Corrections shall
have access to all sealed records of the | ||||||
2 | Department
pertaining to that individual.
| ||||||
3 | Upon entry of the order of expungement, the clerk of the | ||||||
4 | circuit court shall
promptly mail a copy of the order to the | ||||||
5 | person whose records were expunged and
sealed. | ||||||
6 | (c) If a conviction has been vacated as a result of a claim | ||||||
7 | of actual innocence based on newly discovered evidence made | ||||||
8 | under Section 122-1 of the Code of Criminal Procedure of 1963 | ||||||
9 | or Section 2-1401 of the Code of Civil Procedure, and the | ||||||
10 | provisions of paragraphs (1) and (2) of subsection (g) of | ||||||
11 | Section 2-702 of the Code of Civil Procedure are otherwise | ||||||
12 | satisfied, the court shall enter an order for a certificate of | ||||||
13 | innocence and an order expunging the conviction for which the | ||||||
14 | petitioner has been determined to be innocent as provided in | ||||||
15 | subsection (h) of Section 2-702 of the Code of Civil Procedure.
| ||||||
16 | (Source: P.A. 93-210, eff. 7-18-03.)
| ||||||
17 | Section 15. The Code of Civil Procedure is amended by | ||||||
18 | changing Section 2-702 as follows: | ||||||
19 | (735 ILCS 5/2-702) | ||||||
20 | Sec. 2-702. Petition for a certificate of innocence that | ||||||
21 | the petitioner was innocent of all offenses for which he or she | ||||||
22 | was incarcerated. | ||||||
23 | (a) The General Assembly finds and declares that innocent | ||||||
24 | persons who have been wrongly convicted of crimes in Illinois |
| |||||||
| |||||||
1 | and subsequently imprisoned have been frustrated in seeking | ||||||
2 | legal redress due to a variety of substantive and technical | ||||||
3 | obstacles in the law and that such persons should have an | ||||||
4 | available avenue to obtain a finding of innocence so that they | ||||||
5 | may obtain relief through a petition in the Court of Claims. | ||||||
6 | The General Assembly further finds misleading the current legal | ||||||
7 | nomenclature which compels an innocent person to seek a pardon | ||||||
8 | for being wrongfully incarcerated. It is the intent of the | ||||||
9 | General Assembly that the court, in exercising its discretion | ||||||
10 | as permitted by law regarding the weight and admissibility of | ||||||
11 | evidence submitted pursuant to this Section, shall, in the | ||||||
12 | interest of justice, give due consideration to difficulties of | ||||||
13 | proof caused by the passage of time, the death or | ||||||
14 | unavailability of witnesses, the destruction of evidence or | ||||||
15 | other factors not caused by such persons or those acting on | ||||||
16 | their behalf. | ||||||
17 | (b) Any person convicted and subsequently imprisoned for | ||||||
18 | one or more felonies by the State of Illinois which he or she | ||||||
19 | did not commit may, under the conditions hereinafter provided, | ||||||
20 | file a petition for certificate of innocence in the circuit | ||||||
21 | court of the county in which the person was convicted. The | ||||||
22 | petition shall request a certificate of innocence finding that | ||||||
23 | the petitioner was innocent of all offenses for which he or she | ||||||
24 | was incarcerated. | ||||||
25 | (c) In order to present the claim for certificate of | ||||||
26 | innocence of an unjust conviction and imprisonment, the |
| |||||||
| |||||||
1 | petitioner must attach to his or her petition documentation | ||||||
2 | demonstrating that: | ||||||
3 | (1) he or she has been convicted of one or more | ||||||
4 | felonies by the State of Illinois and subsequently | ||||||
5 | sentenced to a term of imprisonment, and has served all or | ||||||
6 | any part of the sentence; and | ||||||
7 | (2) his or her judgment of conviction was reversed or | ||||||
8 | vacated, and the indictment or information dismissed or, if | ||||||
9 | a new trial was ordered, either he or she was found not | ||||||
10 | guilty at the new trial or he or she was not retried and | ||||||
11 | the indictment or information dismissed; or the statute, or | ||||||
12 | application thereof, on which the indictment or | ||||||
13 | information was based violated the Constitution of the | ||||||
14 | United States or the State of Illinois; and | ||||||
15 | (3) his or her claim is not time barred by the | ||||||
16 | provisions of subsection (i) of this Section. | ||||||
17 | (d) The petition shall state facts in sufficient detail to | ||||||
18 | permit the court to find that the petitioner is likely to | ||||||
19 | succeed at trial in proving that the petitioner is innocent of | ||||||
20 | the offenses charged in the indictment or information or his or | ||||||
21 | her acts or omissions charged in the indictment or information | ||||||
22 | did not constitute a felony or misdemeanor against the State of | ||||||
23 | Illinois, and the petitioner did not by his or her own conduct | ||||||
24 | voluntarily cause or bring about his or her conviction. The | ||||||
25 | petition shall be verified by the petitioner. | ||||||
26 | (e) A copy of the petition shall be served on the Attorney |
| |||||||
| |||||||
1 | General and the State's Attorney of the county where the | ||||||
2 | conviction was had. The Attorney General and the State's | ||||||
3 | Attorney of the county where the conviction was had shall have | ||||||
4 | the right to intervene as parties. | ||||||
5 | (f) In any hearing seeking a certificate of innocence, the | ||||||
6 | court may take judicial notice of prior sworn testimony or | ||||||
7 | evidence admitted in the criminal proceedings related to the | ||||||
8 | convictions which resulted in the alleged wrongful | ||||||
9 | incarceration, if the petitioner was either represented by | ||||||
10 | counsel at such prior proceedings or the right to counsel was | ||||||
11 | knowingly waived. | ||||||
12 | (g) In order to obtain a certificate of innocence the | ||||||
13 | petitioner must prove by a preponderance of evidence that: | ||||||
14 | (1) the petitioner was convicted of one or more | ||||||
15 | felonies by the State of Illinois and subsequently | ||||||
16 | sentenced to a term of imprisonment, and has served all or | ||||||
17 | any part of the sentence; | ||||||
18 | (2)(A) the judgment of conviction was reversed or | ||||||
19 | vacated, and the indictment or information dismissed or, if | ||||||
20 | a new trial was ordered, either the petitioner was found | ||||||
21 | not guilty at the new trial or the petitioner was not | ||||||
22 | retried and the indictment or information dismissed; or (B) | ||||||
23 | the statute, or application thereof, on which the | ||||||
24 | indictment or information was based violated the | ||||||
25 | Constitution of the United States or the State of Illinois; | ||||||
26 | (3) the petitioner is innocent of the offenses charged |
| |||||||
| |||||||
1 | in the indictment or information or his or her acts or | ||||||
2 | omissions charged in the indictment or information did not | ||||||
3 | constitute a felony or misdemeanor against the State; and | ||||||
4 | (4) the petitioner did not by his or her own conduct
| ||||||
5 | voluntarily cause or bring about his or her conviction. | ||||||
6 | (h) If the court finds that the petitioner is entitled to a
| ||||||
7 | judgment, it shall enter a certificate of innocence finding | ||||||
8 | that
the petitioner was innocent of all offenses for which he | ||||||
9 | or she was incarcerated. Upon entry of the certificate of | ||||||
10 | innocence or pardon from the Governor stating that such pardon | ||||||
11 | was issued on the ground of innocence of the crime for which he | ||||||
12 | or she was imprisoned, (1) the clerk of the court shall | ||||||
13 | transmit a copy of the certificate of innocence to the clerk of | ||||||
14 | the Court of Claims, together with the claimant's current | ||||||
15 | address; and (2) the court shall enter an order expunging or | ||||||
16 | sealing the record of arrest from the
official records of the
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17 | arresting authority and order that the records of the clerk of | ||||||
18 | the circuit
court and Department of
State Police be sealed | ||||||
19 | until further order of the court upon good cause shown
or as | ||||||
20 | otherwise provided
herein, and the name of the defendant | ||||||
21 | obliterated from the official index
requested to be kept by the
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22 | circuit court clerk under Section 16 of the Clerks of Courts | ||||||
23 | Act in connection
with the arrest and
conviction for the | ||||||
24 | offense but the order shall not affect any index issued by
the | ||||||
25 | circuit court clerk before the entry of the order. The court | ||||||
26 | shall enter the expungement order regardless of whether the |
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1 | petitioner has prior criminal convictions. | ||||||
2 | All records sealed by the Department of State Police may be
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3 | disseminated by the Department only as required by law or to | ||||||
4 | the arresting
authority, the State's Attorney, the court upon a | ||||||
5 | later arrest for the same or
similar offense, or for the | ||||||
6 | purpose of sentencing for any subsequent felony.
Upon | ||||||
7 | conviction for any subsequent offense, the Department of | ||||||
8 | Corrections shall
have access to all sealed records of the | ||||||
9 | Department
pertaining to that individual. | ||||||
10 | Upon entry of the order of expungement, the clerk of the | ||||||
11 | circuit court shall
promptly mail a copy of the order to the | ||||||
12 | person whose records were expunged and
sealed. | ||||||
13 | (i) Any person seeking a certificate of innocence under | ||||||
14 | this
Section based on the dismissal of an indictment or | ||||||
15 | information
or acquittal that occurred before the effective | ||||||
16 | date of this
amendatory Act of the 95th General Assembly shall | ||||||
17 | file his or
her petition within 2 years after the effective | ||||||
18 | date of this
amendatory Act of the 95th General Assembly. Any | ||||||
19 | person seeking
a certificate of innocence under this Section | ||||||
20 | based on the
dismissal of an indictment or information or | ||||||
21 | acquittal that
occurred on or after the effective date of this | ||||||
22 | amendatory Act
of the 95th General Assembly shall file his or | ||||||
23 | her petition
within 2 years after the dismissal. | ||||||
24 | (j) The decision to grant or deny a certificate of | ||||||
25 | innocence shall be binding only with respect to claims filed in | ||||||
26 | the Court of Claims and shall not have a res judicata effect on |
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1 | any other proceedings.
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2 | (Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11 .)
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