Full Text of HB7057 93rd General Assembly
HB7057sam002 93RD GENERAL ASSEMBLY
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Sen. Don Harmon
Filed: 4/27/2004
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LRB093 18519 RLC 49967 a |
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| AMENDMENT TO HOUSE BILL 7057
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| AMENDMENT NO. ______. Amend House Bill 7057, AS AMENDED, by | 3 |
| replacing the introductory clause of Section 5 with the | 4 |
| following:
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| "Section 5. The Sexually Violent Persons Commitment Act is | 6 |
| amended by changing Sections 25 and 30 as follows: | 7 |
| (725 ILCS 207/25)
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| Sec. 25. Rights of persons subject to petition.
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| (a) Any person who is the subject of a petition filed under
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| Section 15 of this Act shall be served with a copy of the
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| petition in accordance with the Civil Practice Law.
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| (b) The circuit court in which a petition under Section 15 | 13 |
| of
this Act is filed shall conduct all hearings under this Act. | 14 |
| The
court shall give the person who is the subject of the | 15 |
| petition
reasonable notice of the time and place of each such | 16 |
| hearing. The
court may designate additional persons to receive | 17 |
| these notices.
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| (c) Except as provided in paragraph (b)(1) of Section 65 | 19 |
| and Section 70 of
this Act,
at any hearing conducted under this | 20 |
| Act, the person who is the
subject of the petition has the | 21 |
| right to :
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| (1) To be present and to be represented by counsel. If | 23 |
| the person is
indigent, the court shall
appoint counsel.
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| (2) To remain silent.
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| (3) To present and cross-examine witnesses.
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| (4) To have the hearing recorded by a court reporter.
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| (d) The person who is the subject of the petition, the | 4 |
| person's
attorney, the Attorney General or the State's Attorney | 5 |
| may request
that a trial under Section 35 of this Act be to a | 6 |
| jury. A verdict
of a jury under this Act is not valid unless it | 7 |
| is unanimous.
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| (e) Whenever the person who is the subject of the petition | 9 |
| is
required to submit to an examination under this Act, he or | 10 |
| she may
retain experts or professional persons to perform an | 11 |
| examination.
The respondent's chosen evaluator must be | 12 |
| approved by the Sex
Offender Management Board and the | 13 |
| evaluation must be conducted in conformance
with the standards | 14 |
| developed under the Sex Offender Management Board
Act.
If the | 15 |
| person retains a qualified expert or professional person
of his | 16 |
| or her own choice to conduct an examination, the examiner
shall | 17 |
| have reasonable access to the person for the purpose of the
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| examination, as well as to the person's past and present | 19 |
| treatment
records and patient health care records. If the | 20 |
| person is
indigent, the court shall, upon the person's request, | 21 |
| appoint a
qualified and available expert or professional person | 22 |
| to perform
an examination. Upon the order of the circuit court, | 23 |
| the county
shall pay, as part of the costs of the action, the | 24 |
| costs of a
court-appointed expert or professional person to | 25 |
| perform an
examination and participate in the trial on behalf | 26 |
| of an indigent
person.
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| (Source: P.A. 93-616, eff. 1-1-04; revised 1-10-04.)
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| (725 ILCS 207/30)
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| Sec. 30. Detention; probable cause hearing; transfer for
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| examination.
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| (a) Upon the filing of a petition under Section 15 of this | 32 |
| Act,
the court shall review the petition to determine whether | 33 |
| to issue
an order for detention of the person who is the |
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| subject of the
petition. The person shall be detained only if | 2 |
| there is cause to
believe that the person is eligible for | 3 |
| commitment under subsection (f) of
Section
35 of this Act. A | 4 |
| person detained under this Section shall be
held in a facility | 5 |
| approved by the Department. If the person is
serving a sentence | 6 |
| of imprisonment, is in a Department of
Corrections correctional | 7 |
| facility or juvenile correctional
facility or is committed to | 8 |
| institutional care, and the court
orders detention under this | 9 |
| Section, the court shall order that
the person be transferred | 10 |
| to a detention facility approved by the
Department. A detention | 11 |
| order under this Section remains in
effect until the person is | 12 |
| discharged after a trial under Section
35 of this Act or until | 13 |
| the effective date of a commitment order
under Section 40 of | 14 |
| this Act, whichever is applicable.
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| (b) Whenever a petition is filed under Section 15 of this | 16 |
| Act,
the court shall hold a hearing to determine whether there | 17 |
| is
probable cause to believe that the person named in the | 18 |
| petition is
a sexually violent person. If the person named in | 19 |
| the petition is
in custody, the court shall hold the probable | 20 |
| cause hearing within
72 hours after the petition is filed, | 21 |
| excluding Saturdays, Sundays
and legal holidays. The court may | 22 |
| grant a continuance of the probable cause
hearing for no more | 23 |
| than 7 additional days upon the motion of the respondent,
for | 24 |
| good cause. If the person named in the petition has been | 25 |
| released, is
on parole, is on mandatory supervised release, or | 26 |
| otherwise is not in
custody, the court shall hold the probable | 27 |
| cause hearing within a
reasonable time after the filing of the | 28 |
| petition.
At the probable cause hearing, the court shall admit | 29 |
| and consider all
relevant hearsay evidence.
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| (c) If the court determines after a hearing that there is
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| probable cause to believe that the person named in the petition | 32 |
| is
a sexually violent person, the court shall order that the | 33 |
| person
be taken into custody if he or she is not in custody and | 34 |
| shall
order the person to be transferred within a reasonable |
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| time to an
appropriate facility for an evaluation as to whether | 2 |
| the person is
a sexually violent person.
If the person who is | 3 |
| named in the petition refuses to speak to, communicate
with, or | 4 |
| otherwise fails to cooperate with the examining evaluator from | 5 |
| the
Department of Human Services or the Department of | 6 |
| Corrections, that person may
only introduce evidence and | 7 |
| testimony from any expert or professional person
who is | 8 |
| retained or court-appointed to conduct an examination of the | 9 |
| person
that results from a review of the records and may not | 10 |
| introduce evidence
resulting from an examination of the person.
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| Any evaluation conducted under this Section shall be by an | 12 |
| evaluator
approved by the Sex Offender Management Board and | 13 |
| conducted in conformance with
the standards developed under the | 14 |
| Sex Offender Management Board Act.
Notwithstanding the | 15 |
| provisions of Section 10 of
the
Mental Health and Developmental | 16 |
| Disabilities Confidentiality Act, all
evaluations conducted | 17 |
| pursuant to this Act and all Illinois Department of
Corrections | 18 |
| treatment records shall be admissible at all proceedings held
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| pursuant to this Act, including the probable cause hearing and | 20 |
| the trial.
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| If the court determines that probable
cause does not exist | 22 |
| to believe that the person is a sexually
violent person, the | 23 |
| court shall dismiss the petition.
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| (d) The Department shall promulgate rules that provide the
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| qualifications for persons conducting evaluations under | 26 |
| subsection
(c) of this Section.
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| (e) If the person named in the petition claims or appears | 28 |
| to be
indigent, the court shall, prior to the probable cause | 29 |
| hearing
under subsection (b) of this Section, appoint
counsel.
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| (Source: P.A. 92-415, eff. 8-17-01; 93-616, eff. 1-1-04.)
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| Section 10. The Unified Code of Corrections is amended by | 32 |
| changing Sections 5-3-1, 5-3-2, 5-6-3, and 5-6-3.1 as follows: |
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| (730 ILCS 5/5-3-1) (from Ch. 38, par. 1005-3-1)
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| Sec. 5-3-1. Presentence Investigation. A defendant shall | 3 |
| not
be sentenced for a felony before a written presentence | 4 |
| report
of investigation is presented to and considered by the | 5 |
| court.
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| However, other than for felony sex offenders being | 7 |
| considered for probation
in cases other than felony sex | 8 |
| offenses as defined in the Sex
Offender Management Board Act , | 9 |
| the court need not order a presentence report
of
investigation | 10 |
| where both parties agree to the imposition of
a specific | 11 |
| sentence, provided there is a finding made for the
record as to | 12 |
| the defendant's history of delinquency or criminality,
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| including any previous sentence to a term of probation, | 14 |
| periodic
imprisonment, conditional discharge, or imprisonment.
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| The court may order a presentence investigation of any | 16 |
| defendant.
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| (Source: P.A. 93-616, eff. 1-1-04.)
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| (730 ILCS 5/5-3-2) (from Ch. 38, par. 1005-3-2)
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| Sec. 5-3-2. Presentence Report.
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| (a) In felony cases, the presentence
report shall set | 21 |
| forth:
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| (1) the defendant's history of delinquency or | 23 |
| criminality,
physical and mental history and condition, | 24 |
| family situation and
background, economic status, | 25 |
| education, occupation and personal habits;
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| (2) information about special resources within the | 27 |
| community
which might be available to assist the | 28 |
| defendant's rehabilitation,
including treatment centers, | 29 |
| residential facilities, vocational
training services, | 30 |
| correctional manpower programs, employment
opportunities, | 31 |
| special educational programs, alcohol and drug
abuse | 32 |
| programming, psychiatric and marriage counseling, and | 33 |
| other
programs and facilities which could aid the |
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| defendant's successful
reintegration into society;
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| (3) the effect the offense committed has had upon the | 3 |
| victim or
victims thereof, and any compensatory benefit | 4 |
| that various
sentencing alternatives would confer on such | 5 |
| victim or victims;
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| (4) information concerning the defendant's status | 7 |
| since arrest,
including his record if released on his own | 8 |
| recognizance, or the
defendant's achievement record if | 9 |
| released on a conditional
pre-trial supervision program;
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| (5) when appropriate, a plan, based upon the personal, | 11 |
| economic
and social adjustment needs of the defendant, | 12 |
| utilizing public and
private community resources as an | 13 |
| alternative to institutional
sentencing;
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| (6) any other matters that the investigatory officer | 15 |
| deems
relevant or the court directs to be included; and
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| (7) information concerning defendant's eligibility for | 17 |
| a sentence to a
county impact incarceration program under | 18 |
| Section 5-8-1.2 of this Code.
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| (b) The investigation shall include a physical and mental
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| examination of the defendant when so ordered by the court. If
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| the court determines that such an examination should be made, | 22 |
| it
shall issue an order that the defendant submit to | 23 |
| examination at
such time and place as designated by the court | 24 |
| and that such
examination be conducted by a physician, | 25 |
| psychologist or
psychiatrist designated by the court. Such an | 26 |
| examination may
be conducted in a court clinic if so ordered by | 27 |
| the court. The
cost of such examination shall be paid by the | 28 |
| county in which
the trial is held.
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| (b-5) In cases involving felony sex offenses in which the | 30 |
| offender is being considered for probation or any felony | 31 |
| offense that is
sexually motivated as defined in the Sex | 32 |
| Offender Management Board Act in which the offender is being | 33 |
| considered for probation , the
investigation shall include a sex | 34 |
| offender evaluation by an evaluator approved
by the Board and |
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| conducted in conformance with the standards developed under
the | 2 |
| Sex Offender Management Board Act.
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| (c) In misdemeanor, business offense or petty offense | 4 |
| cases, except as
specified in subsection (d) of this Section, | 5 |
| when a presentence report has
been ordered by the court, such | 6 |
| presentence report shall contain
information on the | 7 |
| defendant's history of delinquency or criminality and
shall | 8 |
| further contain only those matters listed in any of paragraphs | 9 |
| (1)
through (6) of subsection (a) or in subsection (b) of this | 10 |
| Section as are
specified by the court in its order for the | 11 |
| report.
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| (d) In cases under Section 12-15 and Section 12-30 of the | 13 |
| Criminal
Code of 1961, as amended, the presentence report shall | 14 |
| set forth
information about alcohol, drug abuse, psychiatric, | 15 |
| and marriage counseling
or other treatment programs and | 16 |
| facilities, information on the defendant's
history of | 17 |
| delinquency or criminality, and shall contain those additional
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| matters listed in any of paragraphs (1) through (6) of | 19 |
| subsection (a) or in
subsection (b) of this Section as are | 20 |
| specified by the court.
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| (e) Nothing in this Section shall cause the defendant to be
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| held without bail or to have his bail revoked for the purpose
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| of preparing the presentence report or making an examination.
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| (Source: P.A. 93-616, eff. 1-1-04.)".
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