Full Text of HB4080 98th General Assembly
HB4080sam001 98TH GENERAL ASSEMBLY | Sen. Donne E. Trotter Filed: 5/22/2014
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| 1 | | AMENDMENT TO HOUSE BILL 4080
| 2 | | AMENDMENT NO. ______. Amend House Bill 4080 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-702 as follows: | 6 | | (735 ILCS 5/2-702) | 7 | | Sec. 2-702. Petition for a certificate of innocence that | 8 | | the petitioner was innocent of all offenses for which he or she | 9 | | was incarcerated. | 10 | | (a) The General Assembly finds and declares that innocent | 11 | | persons who have been wrongly convicted of crimes in Illinois | 12 | | and subsequently imprisoned have been frustrated in seeking | 13 | | legal redress due to a variety of substantive and technical | 14 | | obstacles in the law and that such persons should have an | 15 | | available avenue to obtain a finding of innocence so that they | 16 | | may obtain relief through a petition in the Court of Claims. |
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| 1 | | The General Assembly further finds misleading the current legal | 2 | | nomenclature which compels an innocent person to seek a pardon | 3 | | for being wrongfully incarcerated. It is the intent of the | 4 | | General Assembly that the court, in exercising its discretion | 5 | | as permitted by law regarding the weight and admissibility of | 6 | | evidence submitted pursuant to this Section, shall, in the | 7 | | interest of justice, give due consideration to difficulties of | 8 | | proof caused by the passage of time, the death or | 9 | | unavailability of witnesses, the destruction of evidence or | 10 | | other factors not caused by such persons or those acting on | 11 | | their behalf. | 12 | | (b) Any person convicted and subsequently imprisoned for | 13 | | one or more felonies by the State of Illinois which he or she | 14 | | did not commit may, under the conditions hereinafter provided, | 15 | | file a petition for certificate of innocence in the circuit | 16 | | court of the county in which the person was convicted. The | 17 | | petition shall request a certificate of innocence finding that | 18 | | the petitioner was innocent of all offenses for which he or she | 19 | | was incarcerated. | 20 | | (c) In order to present the claim for certificate of | 21 | | innocence of an unjust conviction and imprisonment, the | 22 | | petitioner must attach to his or her petition documentation | 23 | | demonstrating that: | 24 | | (1) he or she has been convicted of one or more | 25 | | felonies by the State of Illinois and subsequently | 26 | | sentenced to a term of imprisonment, and has served all or |
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| 1 | | any part of the sentence; and | 2 | | (2) his or her judgment of conviction was reversed or | 3 | | vacated, and the indictment or information dismissed or, if | 4 | | a new trial was ordered, either he or she was found not | 5 | | guilty at the new trial or he or she was not retried and | 6 | | the indictment or information dismissed; or the statute, or | 7 | | application thereof, on which the indictment or | 8 | | information was based violated the Constitution of the | 9 | | United States or the State of Illinois; and | 10 | | (3) his or her claim is not time barred by the | 11 | | provisions of subsection (i) of this Section. | 12 | | (d) The petition shall state facts in sufficient detail to | 13 | | permit the court to find that the petitioner is likely to | 14 | | succeed at trial in proving that the petitioner is innocent of | 15 | | the offenses charged in the indictment or information or his or | 16 | | her acts or omissions charged in the indictment or information | 17 | | did not constitute a felony or misdemeanor against the State of | 18 | | Illinois, and the petitioner did not by his or her own conduct | 19 | | voluntarily cause or bring about his or her conviction. The | 20 | | petition shall be verified by the petitioner. | 21 | | (e) A copy of the petition shall be served on the Attorney | 22 | | General and the State's Attorney of the county where the | 23 | | conviction was had. The Attorney General and the State's | 24 | | Attorney of the county where the conviction was had shall have | 25 | | the right to intervene as parties. | 26 | | (f) In any hearing seeking a certificate of innocence, the |
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| 1 | | court may take judicial notice of prior sworn testimony or | 2 | | evidence admitted in the criminal proceedings related to the | 3 | | convictions which resulted in the alleged wrongful | 4 | | incarceration, if the petitioner was either represented by | 5 | | counsel at such prior proceedings or the right to counsel was | 6 | | knowingly waived. | 7 | | (g) In order to obtain a certificate of innocence the | 8 | | petitioner must prove by a preponderance of evidence that: | 9 | | (1) the petitioner was convicted of one or more | 10 | | felonies by the State of Illinois and subsequently | 11 | | sentenced to a term of imprisonment, and has served all or | 12 | | any part of the sentence; | 13 | | (2)(A) the judgment of conviction was reversed or | 14 | | vacated, and the indictment or information dismissed or, if | 15 | | a new trial was ordered, either the petitioner was found | 16 | | not guilty at the new trial or the petitioner was not | 17 | | retried and the indictment or information dismissed; or (B) | 18 | | the statute, or application thereof, on which the | 19 | | indictment or information was based violated the | 20 | | Constitution of the United States or the State of Illinois; | 21 | | (3) the petitioner is innocent of the offenses charged | 22 | | in the indictment or information or his or her acts or | 23 | | omissions charged in the indictment or information did not | 24 | | constitute a felony or misdemeanor against the State; and | 25 | | (4) the petitioner did not , by his or her own conduct ,
| 26 | | voluntarily cause or bring about his or her conviction. A |
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| 1 | | person does not voluntarily cause or bring about his or her | 2 | | conviction by submitting a false admission or confession | 3 | | obtained through coercion, force, or intimidation. A | 4 | | person does voluntarily cause or bring about his or her | 5 | | conviction when the person submits a false admission or | 6 | | confession as an intentional attempt to manipulate or | 7 | | mislead the court or law enforcement for the benefit of the | 8 | | person or for the benefit of a third party. | 9 | | (h) If the court finds that the petitioner is entitled to a
| 10 | | judgment, it shall enter a certificate of innocence finding | 11 | | that
the petitioner was innocent of all offenses for which he | 12 | | or she was incarcerated. Upon entry of the certificate of | 13 | | innocence or pardon from the Governor stating that such pardon | 14 | | was issued on the ground of innocence of the crime for which he | 15 | | or she was imprisoned, (1) the clerk of the court shall | 16 | | transmit a copy of the certificate of innocence to the clerk of | 17 | | the Court of Claims, together with the claimant's current | 18 | | address; and (2) the court shall enter an order expunging the | 19 | | record of arrest from the
official records of the
arresting | 20 | | authority and order that the records of the clerk of the | 21 | | circuit
court and Department of
State Police 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 |
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| 1 | | offense but the order shall not affect any index issued by
the | 2 | | circuit court clerk before the entry of the order. The court | 3 | | shall enter the expungement order regardless of whether the | 4 | | petitioner has prior criminal convictions. | 5 | | All records sealed by the Department of State Police may be
| 6 | | disseminated by the Department only as required by law or to | 7 | | the arresting
authority, the State's Attorney, the court upon a | 8 | | later arrest for the same or
similar offense, or for the | 9 | | purpose of sentencing for any subsequent felony.
Upon | 10 | | conviction for any subsequent offense, the Department of | 11 | | Corrections shall
have access to all sealed records of the | 12 | | Department
pertaining to that individual. | 13 | | Upon entry of the order of expungement, the clerk of the | 14 | | circuit court shall
promptly mail a copy of the order to the | 15 | | person whose records were expunged and
sealed. | 16 | | (i) Any person seeking a certificate of innocence under | 17 | | this
Section based on the dismissal of an indictment or | 18 | | information
or acquittal that occurred before the effective | 19 | | date of this
amendatory Act of the 95th General Assembly shall | 20 | | file his or
her petition within 2 years after the effective | 21 | | date of this
amendatory Act of the 95th General Assembly. Any | 22 | | person seeking
a certificate of innocence under this Section | 23 | | based on the
dismissal of an indictment or information or | 24 | | acquittal that
occurred on or after the effective date of this | 25 | | amendatory Act
of the 95th General Assembly shall file his or | 26 | | her petition
within 2 years after the dismissal. |
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| 1 | | (j) The decision to grant or deny a certificate of | 2 | | innocence shall be binding only with respect to claims filed in | 3 | | the Court of Claims and shall not have a res judicata effect on | 4 | | any other proceedings.
| 5 | | (Source: P.A. 98-133, eff. 1-1-14.)".
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