State of Illinois
90th General Assembly
Legislation

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[ Engrossed ][ Enrolled ][ House Amendment 001 ]

90_HB0472

      730 ILCS 5/5-5-3          from Ch. 38, par. 1005-5-3
          Amends the Unified  Code  of  Corrections.  Adds  certain
      child  pornography  offenses  to list of offenses for which a
      period of probation, a  term  of  periodic  imprisonment,  or
      conditional   discharge   may   not   be  imposed.  Effective
      immediately.
                                                     LRB9002449RCks
                                               LRB9002449RCks
 1        AN ACT to  amend  the  Unified  Code  of  Corrections  by
 2    changing Section 5-5-3.
 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:
 5        Section 5. The Unified Code of Corrections is amended  by
 6    changing Section 5-5-3 as follows:
 7        (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
 8        (Text  of  Section  before  amendment  by P.A. 89-507 and
 9    89-688)
10        Sec. 5-5-3.  Disposition.
11        (a)  Every  person  convicted  of  an  offense  shall  be
12    sentenced as provided in this Section.
13        (b)  The   following   options   shall   be   appropriate
14    dispositions, alone or in combination, for all  felonies  and
15    misdemeanors other than those identified in subsection (c) of
16    this Section:
17             (1)  A period of probation.
18             (2)  A term of periodic imprisonment.
19             (3)  A term of conditional discharge.
20             (4)  A term of imprisonment.
21             (5)  An order directing the offender to clean up and
22        repair  the  damage,  if the offender was convicted under
23        paragraph (h) of Section 21-1 of  the  Criminal  Code  of
24        1961.
25             (6)  A fine.
26             (7)  An   order   directing  the  offender  to  make
27        restitution to the victim under  Section  5-5-6  of  this
28        Code.
29             (8)  A  sentence of participation in a county impact
30        incarceration program under Section 5-8-1.2 of this Code.
31        Whenever an individual is sentenced for an offense  based
                            -2-                LRB9002449RCks
 1    upon  an  arrest  for  a  violation  of Section 11-501 of the
 2    Illinois Vehicle Code, or a  similar  provision  of  a  local
 3    ordinance,   and   the   professional  evaluation  recommends
 4    remedial or rehabilitative treatment  or  education,  neither
 5    the treatment nor the education shall be the sole disposition
 6    and  either  or  both may be imposed only in conjunction with
 7    another disposition. The court shall monitor compliance  with
 8    any remedial education or treatment recommendations contained
 9    in  the professional evaluation.  Programs conducting alcohol
10    or other  drug  evaluation  or  remedial  education  must  be
11    licensed by the Department of Alcoholism and Substance Abuse.
12    However, if the individual is not a resident of Illinois, the
13    court  may  accept  an  alcohol  or  other drug evaluation or
14    remedial education program in the state of such  individual's
15    residence.   Programs  providing  treatment  must be licensed
16    under  existing  applicable  alcoholism  and  drug  treatment
17    licensure standards.
18        In addition to any other fine or penalty required by law,
19    any individual convicted of a violation of Section 11-501  of
20    the  Illinois  Vehicle  Code  or a similar provision of local
21    ordinance, whose  operation  of  a  motor  vehicle  while  in
22    violation  of  Section  11-501  or such ordinance proximately
23    caused an incident  resulting  in  an  appropriate  emergency
24    response,  shall  be required to make restitution to a public
25    agency for  the  costs  of  that  emergency  response.   Such
26    restitution  shall not exceed $500 per public agency for each
27    such emergency response.  For the purpose of this  paragraph,
28    emergency  response  shall  mean  any  incident  requiring  a
29    response  by: a police officer as defined under Section 1-162
30    of the Illinois Vehicle Code; a fireman carried on the  rolls
31    of  a regularly constituted fire department; and an ambulance
32    as defined  under  Section  4.05  of  the  Emergency  Medical
33    Services (EMS) Systems Act.
34        Neither   a  fine  nor  restitution  shall  be  the  sole
                            -3-                LRB9002449RCks
 1    disposition for a felony and either or both  may  be  imposed
 2    only in conjunction with another disposition.
 3        (c) (1)  When a defendant is found guilty of first degree
 4        murder   the   State   may  either  seek  a  sentence  of
 5        imprisonment under Section 5-8-1 of this Code,  or  where
 6        appropriate seek a sentence of death under Section 9-1 of
 7        the Criminal Code of 1961.
 8             (2)  A  period  of  probation,  a  term  of periodic
 9        imprisonment  or  conditional  discharge  shall  not   be
10        imposed  for  the  following  offenses.  The  court shall
11        sentence the offender to not less than the  minimum  term
12        of  imprisonment set forth in this Code for the following
13        offenses, and may order a fine or restitution or both  in
14        conjunction with such term of imprisonment:
15                  (A)  First   degree   murder  where  the  death
16             penalty is not imposed.
17                  (B)  Attempted first degree murder.
18                  (C)  A Class X felony.
19                  (D)  A violation of Section 401.1 or 407 of the
20             Illinois Controlled Substances Act, or  a  violation
21             of  subdivision  (c)(2)  of  Section 401 of that Act
22             which relates to more than 5 grams  of  a  substance
23             containing cocaine or an analog thereof.
24                  (E)  A  violation  of  Section  5.1 or 9 of the
25             Cannabis Control Act.
26                  (F)  A  Class  2  or  greater  felony  if   the
27             offender  had been convicted of a Class 2 or greater
28             felony within 10 years  of  the  date  on  which  he
29             committed   the   offense  for  which  he  is  being
30             sentenced.
31                  (G)  Residential burglary.
32                  (H)  Criminal   sexual   assault,   except   as
33             otherwise  provided  in  subsection  (e)   of   this
34             Section.
                            -4-                LRB9002449RCks
 1                  (I)  Aggravated battery of a senior citizen.
 2                  (J)  A  forcible  felony  if  the  offense  was
 3             related to the activities of an organized gang.
 4                  Before  July  1, 1994, for the purposes of this
 5             paragraph, "organized gang" means an association  of
 6             5  or  more  persons, with an established hierarchy,
 7             that  encourages  members  of  the  association   to
 8             perpetrate crimes or provides support to the members
 9             of the association who do commit crimes.
10                  Beginning  July  1,  1994,  for the purposes of
11             this paragraph, "organized  gang"  has  the  meaning
12             ascribed  to  it  in  Section  10  of  the  Illinois
13             Streetgang Terrorism Omnibus Prevention Act.
14                  (K)  Vehicular hijacking.
15                  (L)  A  second or subsequent conviction for the
16             offense of hate crime when  the  underlying  offense
17             upon  which  the  hate  crime  is  based  is  felony
18             aggravated assault or felony mob action.
19                  (M)  A  second or subsequent conviction for the
20             offense of institutional vandalism if the damage  to
21             the property exceeds $300.
22                  (N)  A  Class  3  felony violation of paragraph
23             (1) of subsection (a) of Section 2  of  the  Firearm
24             Owners Identification Card Act.
25                  (O)  A  violation  of  Section  12-6.1  of  the
26             Criminal Code of 1961.
27                  (P)  A violation of paragraph (1), (4), (5), or
28             (7)  of  subsection  (a)  of  Section 11-20.1 of the
29             Criminal Code of 1961.
30             (3)  A minimum term of imprisonment of not less than
31        48 consecutive hours or 100 hours of community service as
32        may be determined by the court shall  be  imposed  for  a
33        second  or  subsequent violation committed within 5 years
34        of a previous violation of Section 11-501 of the Illinois
                            -5-                LRB9002449RCks
 1        Vehicle Code or a similar provision of a local ordinance.
 2             (4)  A minimum term of imprisonment of not less than
 3        7 consecutive days or 30 days of community service  shall
 4        be  imposed  for  a violation of paragraph (c) of Section
 5        6-303 of the Illinois Vehicle Code.
 6             (4.1)  A minimum term  of  30  consecutive  days  of
 7        imprisonment, 40 days of 24 hour periodic imprisonment or
 8        720  hours  of community service, as may be determined by
 9        the court, shall be imposed for a  violation  of  Section
10        11-501  of  the  Illinois Vehicle Code during a period in
11        which the defendant's driving privileges are  revoked  or
12        suspended,  where  the revocation or suspension was for a
13        violation of Section 11-501 or Section 11-501.1  of  that
14        Code.
15             (5)  The court may sentence an offender convicted of
16        a business offense or a petty offense or a corporation or
17        unincorporated association convicted of any offense to:
18                  (A)  a period of conditional discharge;
19                  (B)  a fine;
20                  (C)  make   restitution  to  the  victim  under
21             Section 5-5-6 of this Code.
22             (6)  In no case shall an offender be eligible for  a
23        disposition  of  probation or conditional discharge for a
24        Class 1 felony committed while he was serving a  term  of
25        probation or conditional discharge for a felony.
26             (7)  When   a   defendant  is  adjudged  a  habitual
27        criminal under Article 33B of the Criminal Code of  1961,
28        the  court  shall  sentence  the  defendant  to a term of
29        natural life imprisonment.
30             (8)  When a defendant, over the age of 21 years,  is
31        convicted  of  a  Class 1 or Class 2 felony, after having
32        twice been convicted of any  Class  2  or  greater  Class
33        felonies  in  Illinois,  and  such charges are separately
34        brought and tried and arise out of  different  series  of
                            -6-                LRB9002449RCks
 1        acts,  such  defendant  shall  be  sentenced as a Class X
 2        offender. This paragraph shall not apply unless  (1)  the
 3        first  felony  was  committed after the effective date of
 4        this amendatory Act of 1977; and (2)  the  second  felony
 5        was  committed after conviction on the first; and (3) the
 6        third  felony  was  committed  after  conviction  on  the
 7        second.
 8             (9)  A defendant convicted of a second or subsequent
 9        offense of ritualized abuse of a child may  be  sentenced
10        to a term of natural life imprisonment.
11             (10)  Beginning  July  1,  1994,  unless  sentencing
12        under Section 33B-1 is applicable, a term of imprisonment
13        of not less than 15 years nor more than 50 years shall be
14        imposed  on a defendant who violates Section 33A-2 of the
15        Criminal Code of 1961 with a firearm,  when  that  person
16        has  been convicted in any state or federal court of 3 or
17        more of the following  offenses:  treason,  first  degree
18        murder,  second degree murder, aggravated criminal sexual
19        assault,  criminal  sexual  assault,  robbery,  burglary,
20        arson, kidnaping, aggravated battery resulting  in  great
21        bodily  harm or permanent disability or disfigurement, or
22        a violation of Section 401(a) of the Illinois  Controlled
23        Substances  Act,  when  the  third  offense was committed
24        after conviction on the second, the  second  offense  was
25        committed   after   conviction  on  the  first,  and  the
26        violation of Section 33A-2 of the Criminal Code  of  1961
27        was committed after conviction on the third.
28             (11)  Beginning July 1, 1994, a term of imprisonment
29        of  not  less  than  10  years and not more than 30 years
30        shall be imposed on  a  defendant  who  violates  Section
31        33A-2  with  a  Category  I  weapon where the offense was
32        committed in any school, or any conveyance owned, leased,
33        or contracted by a school to  transport  students  to  or
34        from  school  or  a  school related activity, on the real
                            -7-                LRB9002449RCks
 1        property comprising any school or public park, and  where
 2        the offense was related to the activities of an organized
 3        gang.    For   the   purposes  of  this  paragraph  (11),
 4        "organized gang"  has  the  meaning  ascribed  to  it  in
 5        Section  10  of the Illinois Streetgang Terrorism Omnibus
 6        Prevention Act.
 7        (d)  In any case in which a sentence  originally  imposed
 8    is  vacated,  the  case shall be remanded to the trial court.
 9    The trial court shall hold a hearing under Section  5-4-1  of
10    the Unified Code of Corrections which may include evidence of
11    the  defendant's  life, moral character and occupation during
12    the time since the original sentence was passed.   The  trial
13    court  shall  then  impose  sentence upon the defendant.  The
14    trial court may impose any sentence  which  could  have  been
15    imposed at the original trial subject to Section 5-5-4 of the
16    Unified Code of Corrections.
17        (e)  In  cases  where  prosecution  for  criminal  sexual
18    assault  or  aggravated  criminal  sexual abuse under Section
19    12-13 or 12-16 of  the  Criminal  Code  of  1961  results  in
20    conviction  of  a  defendant  who  was a family member of the
21    victim at the time of the  commission  of  the  offense,  the
22    court shall consider the safety and welfare of the victim and
23    may impose a sentence of probation only where:
24             (1)  the   court  finds  (A)  or  (B)  or  both  are
25        appropriate:
26                  (A)  the defendant  is  willing  to  undergo  a
27             court  approved  counseling  program  for  a minimum
28             duration of 2 years; or
29                  (B)  the defendant is willing to participate in
30             a court approved plan including but not  limited  to
31             the defendant's:
32                       (i)  removal from the household;
33                       (ii)  restricted contact with the victim;
34                       (iii)  continued  financial support of the
                            -8-                LRB9002449RCks
 1                  family;
 2                       (iv)  restitution for  harm  done  to  the
 3                  victim; and
 4                       (v)  compliance  with  any  other measures
 5                  that the court may deem appropriate; and
 6             (2)  the court orders the defendant to pay  for  the
 7        victim's  counseling  services,  to  the  extent that the
 8        court finds, after considering the defendant's income and
 9        assets, that the  defendant  is  financially  capable  of
10        paying  for  such  services,  if  the victim was under 18
11        years of age at the time the offense  was  committed  and
12        requires counseling as a result of the offense.
13        Probation  may be revoked or modified pursuant to Section
14    5-6-4; except where the court determines at the hearing  that
15    the  defendant  violated  a condition of his or her probation
16    restricting contact with the victim or other  family  members
17    or  commits  another  offense with the victim or other family
18    members, the court shall revoke the defendant's probation and
19    impose a term of imprisonment.
20        For the purposes of this  Section,  "family  member"  and
21    "victim"  shall have the meanings ascribed to them in Section
22    12-12 of the Criminal Code of 1961.
23        (f)  This Article shall not  deprive  a  court  in  other
24    proceedings  to order a forfeiture of property, to suspend or
25    cancel a license, to remove  a  person  from  office,  or  to
26    impose any other civil penalty.
27        (g)  Whenever  a  defendant  is  convicted  of an offense
28    under Sections 11-14, 11-15, 11-15.1,  11-16,  11-17,  11-18,
29    11-18.1,  11-19,  11-19.1,  11-19.2,  12-13,  12-14, 12-14.1,
30    12-15 or 12-16 of the Criminal Code of  1961,  the  defendant
31    shall  undergo  medical  testing  to  determine  whether  the
32    defendant has any sexually transmissible disease, including a
33    test for infection with human immunodeficiency virus (HIV) or
34    any    other   identified   causative   agent   of   acquired
                            -9-                LRB9002449RCks
 1    immunodeficiency syndrome  (AIDS).   Any  such  medical  test
 2    shall  be  performed  only  by appropriately licensed medical
 3    practitioners and may  include  an  analysis  of  any  bodily
 4    fluids  as  well as an examination of the defendant's person.
 5    Except as otherwise provided by law, the results of such test
 6    shall be kept strictly confidential by all medical  personnel
 7    involved in the testing and must be personally delivered in a
 8    sealed  envelope  to  the  judge  of  the  court in which the
 9    conviction was entered for the judge's inspection in  camera.
10    Acting  in  accordance  with the best interests of the victim
11    and the public,  the  judge  shall  have  the  discretion  to
12    determine  to whom, if anyone, the results of the testing may
13    be revealed. The court shall notify the defendant of the test
14    results.  The court shall also notify the victim if requested
15    by the victim, and if the victim is under the age of  15  and
16    if  requested  by the victim's parents or legal guardian, the
17    court shall notify the victim's parents or legal guardian  of
18    the test results.  The court shall provide information on the
19    availability  of  HIV testing and counseling at Department of
20    Public Health facilities to all parties to whom  the  results
21    of  the  testing  are  revealed  and shall direct the State's
22    Attorney to  provide  the  information  to  the  victim  when
23    possible. A State's Attorney may petition the court to obtain
24    the  results of any HIV test administered under this Section,
25    and the court shall  grant  the  disclosure  if  the  State's
26    Attorney  shows it is relevant in order to prosecute a charge
27    of criminal transmission of HIV under Section 12-16.2 of  the
28    Criminal Code of 1961 against the defendant.  The court shall
29    order  that  the  cost  of any such test shall be paid by the
30    county and may  be  taxed  as  costs  against  the  convicted
31    defendant.
32        (g-5)  When   an   inmate   is  tested  for  an  airborne
33    communicable  disease,  as   determined   by   the   Illinois
34    Department  of  Public  Health  including  but not limited to
                            -10-               LRB9002449RCks
 1    tuberculosis, the results of the  test  shall  be  personally
 2    delivered  by  the  warden or his or her designee in a sealed
 3    envelope to the judge of the court in which the  inmate  must
 4    appear  for  the judge's inspection in camera if requested by
 5    the judge.  Acting in accordance with the best  interests  of
 6    those  in  the courtroom, the judge shall have the discretion
 7    to determine what if any precautions  need  to  be  taken  to
 8    prevent transmission of the disease in the courtroom.
 9        (h)  Whenever  a  defendant  is  convicted  of an offense
10    under Section 1 or 2 of the Hypodermic Syringes  and  Needles
11    Act, the defendant shall undergo medical testing to determine
12    whether   the   defendant   has   been   exposed   to   human
13    immunodeficiency   virus   (HIV)   or  any  other  identified
14    causative agent of acquired immunodeficiency syndrome (AIDS).
15    Except as otherwise provided by law, the results of such test
16    shall be kept strictly confidential by all medical  personnel
17    involved in the testing and must be personally delivered in a
18    sealed  envelope  to  the  judge  of  the  court in which the
19    conviction was entered for the judge's inspection in  camera.
20    Acting  in  accordance with the best interests of the public,
21    the judge shall have the discretion to determine to whom,  if
22    anyone, the results of the testing may be revealed. The court
23    shall  notify  the  defendant  of  a positive test showing an
24    infection with the human immunodeficiency  virus  (HIV).  The
25    court  shall  provide  information on the availability of HIV
26    testing  and  counseling  at  Department  of  Public   Health
27    facilities  to all parties to whom the results of the testing
28    are revealed and shall direct the State's Attorney to provide
29    the information  to  the  victim  when  possible.  A  State's
30    Attorney  may petition the court to obtain the results of any
31    HIV test administered under  this   Section,  and  the  court
32    shall  grant  the disclosure if the State's Attorney shows it
33    is relevant in  order  to  prosecute  a  charge  of  criminal
34    transmission  of  HIV  under  Section 12-16.2 of the Criminal
                            -11-               LRB9002449RCks
 1    Code of 1961 against the defendant.  The  court  shall  order
 2    that  the  cost  of any such test shall be paid by the county
 3    and may be taxed as costs against the convicted defendant.
 4        (i)  All fines and penalties imposed under  this  Section
 5    for any violation of Chapters 3, 4, 6, and 11 of the Illinois
 6    Vehicle  Code,  or  a similar provision of a local ordinance,
 7    and any violation of the Child Passenger Protection Act, or a
 8    similar provision of a local ordinance,  shall  be  collected
 9    and  disbursed by the circuit clerk as provided under Section
10    27.5 of the Clerks of Courts Act.
11        (j)  In cases  when  prosecution  for  any  violation  of
12    Section  11-6,  11-8,  11-9,  11-11,  11-14,  11-15, 11-15.1,
13    11-16,  11-17,  11-17.1,  11-18,  11-18.1,  11-19,   11-19.1,
14    11-19.2,  11-20.1,  11-21,  12-13,  12-14, 12-14.1, 12-15, or
15    12-16 of the Criminal Code of  1961,  any  violation  of  the
16    Illinois  Controlled  Substances Act, or any violation of the
17    Cannabis Control Act results in conviction, a disposition  of
18    court  supervision,  or  an  order of probation granted under
19    Section 10 of the Cannabis Control Act or Section 410 of  the
20    Illinois  Controlled  Substance Act of a defendant, the court
21    shall determine  whether  the  defendant  is  employed  by  a
22    facility  or  center  as  defined under the Child Care Act of
23    1969, a public or private elementary or secondary school,  or
24    otherwise  works  with  children  under  18 years of age on a
25    daily basis.  When a defendant  is  so  employed,  the  court
26    shall  order  the  Clerk  of  the Court to send a copy of the
27    judgment of conviction or order of supervision  or  probation
28    to  the  defendant's  employer  by  certified  mail.  If  the
29    employer of the defendant is a school, the Clerk of the Court
30    shall  direct  the  mailing  of  a  copy  of  the judgment of
31    conviction or  order  of  supervision  or  probation  to  the
32    appropriate regional superintendent of schools.  The regional
33    superintendent  of  schools  shall  notify the State Board of
34    Education of any notification under this subsection.
                            -12-               LRB9002449RCks
 1        (k)  A court may not impose a sentence or disposition for
 2    a felony or misdemeanor that requires  the  defendant  to  be
 3    implanted  or  injected  with  or  to  use  any form of birth
 4    control.
 5        (l)(A)  Except as provided in paragraph (C) of subsection
 6    (l), whenever a defendant, who is an alien as defined by  the
 7    Immigration  and  Nationality Act, is convicted of any felony
 8    or  misdemeanor  offense,  the  court  after  sentencing  the
 9    defendant may, upon motion  of  the  State's  Attorney,  hold
10    sentence  in abeyance and remand the defendant to the custody
11    of the Attorney General of the United States or  his  or  her
12    designated agent to be deported when:
13             (1)  a  final  order  of deportation has been issued
14        against the defendant pursuant to proceedings  under  the
15        Immigration and Nationality Act, and
16             (2)  the  deportation  of  the  defendant  would not
17        deprecate the seriousness of the defendant's conduct  and
18        would not be inconsistent with the ends of justice.
19        Otherwise,  the  defendant shall be sentenced as provided
20    in this Chapter V.
21        (B)  If the defendant has already been  sentenced  for  a
22    felony   or  misdemeanor  offense,  or  has  been  placed  on
23    probation under Section 10 of the  Cannabis  Control  Act  or
24    Section  410  of  the Illinois Controlled Substances Act, the
25    court may, upon motion of the State's Attorney to suspend the
26    sentence imposed, commit the defendant to the custody of  the
27    Attorney   General  of  the  United  States  or  his  or  her
28    designated agent when:
29             (1)  a final order of deportation  has  been  issued
30        against  the  defendant pursuant to proceedings under the
31        Immigration and Nationality Act, and
32             (2)  the deportation  of  the  defendant  would  not
33        deprecate  the seriousness of the defendant's conduct and
34        would not be inconsistent with the ends of justice.
                            -13-               LRB9002449RCks
 1        (C)  This subsection (l) does not apply to offenders  who
 2    are  subject to the provisions of paragraph (2) of subsection
 3    (a) of Section 3-6-3.
 4        (D)  Upon motion of the State's Attorney, if a  defendant
 5    sentenced  under  this Section returns to the jurisdiction of
 6    the United States, the defendant shall be recommitted to  the
 7    custody  of  the  county  from which he or she was sentenced.
 8    Thereafter,  the  defendant  shall  be  brought  before   the
 9    sentencing  court,  which  may  impose  any sentence that was
10    available  under  Section  5-5-3  at  the  time  of   initial
11    sentencing.  In addition, the defendant shall not be eligible
12    for additional good conduct credit for meritorious service as
13    provided under Section 3-6-6.
14    (Source: P.A.  88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
15    88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
16    3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95;  89-462,
17    eff.  5-29-96;  89-477,  eff.  6-18-96; 89-545, eff. 7-25-96;
18    89-587, eff. 7-31-96; 89-627, eff. 1-1-97; revised 1-7-97.)
19        (Text of Section  after  amendment  by  P.A.  89-507  and
20    89-688)
21        Sec. 5-5-3.  Disposition.
22        (a)  Every  person  convicted  of  an  offense  shall  be
23    sentenced as provided in this Section.
24        (b)  The   following   options   shall   be   appropriate
25    dispositions,  alone  or in combination, for all felonies and
26    misdemeanors other than those identified in subsection (c) of
27    this Section:
28             (1)  A period of probation.
29             (2)  A term of periodic imprisonment.
30             (3)  A term of conditional discharge.
31             (4)  A term of imprisonment.
32             (5)  An order directing the offender to clean up and
33        repair the damage, if the offender  was  convicted  under
34        paragraph  (h)  of  Section  21-1 of the Criminal Code of
                            -14-               LRB9002449RCks
 1        1961.
 2             (6)  A fine.
 3             (7)  An  order  directing  the  offender   to   make
 4        restitution  to  the  victim  under Section 5-5-6 of this
 5        Code.
 6             (8)  A sentence of participation in a county  impact
 7        incarceration program under Section 5-8-1.2 of this Code.
 8        Whenever  an individual is sentenced for an offense based
 9    upon an arrest for a  violation  of  Section  11-501  of  the
10    Illinois  Vehicle  Code,  or  a  similar provision of a local
11    ordinance,  and  the   professional   evaluation   recommends
12    remedial  or  rehabilitative  treatment or education, neither
13    the treatment nor the education shall be the sole disposition
14    and either or both may be imposed only  in  conjunction  with
15    another  disposition. The court shall monitor compliance with
16    any remedial education or treatment recommendations contained
17    in the professional evaluation.  Programs conducting  alcohol
18    or  other  drug  evaluation  or  remedial  education  must be
19    licensed by the Department of Human  Services.   However,  if
20    the  individual  is not a resident of Illinois, the court may
21    accept an  alcohol  or  other  drug  evaluation  or  remedial
22    education   program   in   the  state  of  such  individual's
23    residence.  Programs providing  treatment  must  be  licensed
24    under  existing  applicable  alcoholism  and  drug  treatment
25    licensure standards.
26        In addition to any other fine or penalty required by law,
27    any  individual convicted of a violation of Section 11-501 of
28    the Illinois Vehicle Code or a  similar  provision  of  local
29    ordinance,  whose  operation  of  a  motor  vehicle  while in
30    violation of Section 11-501  or  such  ordinance  proximately
31    caused  an  incident  resulting  in  an appropriate emergency
32    response, shall be required to make restitution to  a  public
33    agency  for  the  costs  of  that  emergency  response.  Such
34    restitution shall not exceed $500 per public agency for  each
                            -15-               LRB9002449RCks
 1    such  emergency response.  For the purpose of this paragraph,
 2    emergency  response  shall  mean  any  incident  requiring  a
 3    response by: a police officer as defined under Section  1-162
 4    of  the Illinois Vehicle Code; a fireman carried on the rolls
 5    of a regularly constituted fire department; and an  ambulance
 6    as  defined  under  Section  4.05  of  the  Emergency Medical
 7    Services (EMS) Systems Act.
 8        Neither  a  fine  nor  restitution  shall  be  the   sole
 9    disposition  for  a  felony and either or both may be imposed
10    only in conjunction with another disposition.
11        (c) (1)  When a defendant is found guilty of first degree
12        murder  the  State  may  either  seek   a   sentence   of
13        imprisonment  under  Section 5-8-1 of this Code, or where
14        appropriate seek a sentence of death under Section 9-1 of
15        the Criminal Code of 1961.
16             (2)  A period  of  probation,  a  term  of  periodic
17        imprisonment   or  conditional  discharge  shall  not  be
18        imposed for  the  following  offenses.  The  court  shall
19        sentence  the  offender to not less than the minimum term
20        of imprisonment set forth in this Code for the  following
21        offenses,  and may order a fine or restitution or both in
22        conjunction with such term of imprisonment:
23                  (A)  First  degree  murder  where   the   death
24             penalty is not imposed.
25                  (B)  Attempted first degree murder.
26                  (C)  A Class X felony.
27                  (D)  A violation of Section 401.1 or 407 of the
28             Illinois  Controlled  Substances Act, or a violation
29             of subdivision (c)(2) of Section  401  of  that  Act
30             which  relates  to  more than 5 grams of a substance
31             containing cocaine or an analog thereof.
32                  (E)  A violation of Section 5.1  or  9  of  the
33             Cannabis Control Act.
34                  (F)  A   Class  2  or  greater  felony  if  the
                            -16-               LRB9002449RCks
 1             offender had been convicted of a Class 2 or  greater
 2             felony  within  10  years  of  the  date on which he
 3             committed  the  offense  for  which  he   is   being
 4             sentenced.
 5                  (G)  Residential burglary.
 6                  (H)  Criminal   sexual   assault,   except   as
 7             otherwise   provided   in  subsection  (e)  of  this
 8             Section.
 9                  (I)  Aggravated battery of a senior citizen.
10                  (J)  A  forcible  felony  if  the  offense  was
11             related to the activities of an organized gang.
12                  Before July 1, 1994, for the purposes  of  this
13             paragraph,  "organized gang" means an association of
14             5 or more persons, with  an  established  hierarchy,
15             that   encourages  members  of  the  association  to
16             perpetrate crimes or provides support to the members
17             of the association who do commit crimes.
18                  Beginning July 1, 1994,  for  the  purposes  of
19             this  paragraph,  "organized  gang"  has the meaning
20             ascribed  to  it  in  Section  10  of  the  Illinois
21             Streetgang Terrorism Omnibus Prevention Act.
22                  (K)  Vehicular hijacking.
23                  (L)  A second or subsequent conviction for  the
24             offense  of  hate  crime when the underlying offense
25             upon  which  the  hate  crime  is  based  is  felony
26             aggravated assault or felony mob action.
27                  (M)  A second or subsequent conviction for  the
28             offense  of institutional vandalism if the damage to
29             the property exceeds $300.
30                  (N)  A Class 3 felony  violation  of  paragraph
31             (1)  of  subsection  (a) of Section 2 of the Firearm
32             Owners Identification Card Act.
33                  (O)  A  violation  of  Section  12-6.1  of  the
34             Criminal Code of 1961.
                            -17-               LRB9002449RCks
 1                  (P)  A violation of paragraph (1), (4), (5), or
 2             (7) of subsection (a)  of  Section  11-20.1  of  the
 3             Criminal Code of 1961.
 4             (3)  A minimum term of imprisonment of not less than
 5        48 consecutive hours or 100 hours of community service as
 6        may  be  determined  by  the court shall be imposed for a
 7        second or subsequent violation committed within  5  years
 8        of a previous violation of Section 11-501 of the Illinois
 9        Vehicle Code or a similar provision of a local ordinance.
10             (4)  A minimum term of imprisonment of not less than
11        7  consecutive days or 30 days of community service shall
12        be imposed for a violation of paragraph  (c)  of  Section
13        6-303 of the Illinois Vehicle Code.
14             (4.1)  A  minimum  term  of  30  consecutive days of
15        imprisonment, 40 days of 24 hour periodic imprisonment or
16        720 hours of community service, as may be  determined  by
17        the  court,  shall  be imposed for a violation of Section
18        11-501 of the Illinois Vehicle Code during  a  period  in
19        which  the  defendant's driving privileges are revoked or
20        suspended, where the revocation or suspension was  for  a
21        violation  of  Section 11-501 or Section 11-501.1 of that
22        Code.
23             (5)  The court may sentence an offender convicted of
24        a business offense or a petty offense or a corporation or
25        unincorporated association convicted of any offense to:
26                  (A)  a period of conditional discharge;
27                  (B)  a fine;
28                  (C)  make  restitution  to  the  victim   under
29             Section 5-5-6 of this Code.
30             (6)  In  no case shall an offender be eligible for a
31        disposition of probation or conditional discharge  for  a
32        Class  1  felony committed while he was serving a term of
33        probation or conditional discharge for a felony.
34             (7)  When  a  defendant  is  adjudged   a   habitual
                            -18-               LRB9002449RCks
 1        criminal  under Article 33B of the Criminal Code of 1961,
 2        the court shall sentence  the  defendant  to  a  term  of
 3        natural life imprisonment.
 4             (8)  When  a defendant, over the age of 21 years, is
 5        convicted of a Class 1 or Class 2  felony,  after  having
 6        twice  been  convicted  of  any  Class 2 or greater Class
 7        felonies in Illinois, and  such  charges  are  separately
 8        brought  and  tried  and arise out of different series of
 9        acts, such defendant shall be  sentenced  as  a  Class  X
10        offender.  This  paragraph shall not apply unless (1) the
11        first felony was committed after the  effective  date  of
12        this  amendatory  Act  of 1977; and (2) the second felony
13        was committed after conviction on the first; and (3)  the
14        third  felony  was  committed  after  conviction  on  the
15        second.
16             (9)  A defendant convicted of a second or subsequent
17        offense  of  ritualized abuse of a child may be sentenced
18        to a term of natural life imprisonment.
19             (10)  Beginning  July  1,  1994,  unless  sentencing
20        under Section 33B-1 is applicable, a term of imprisonment
21        of not less than 15 years nor more than 50 years shall be
22        imposed on a defendant who violates Section 33A-2 of  the
23        Criminal  Code  of  1961 with a firearm, when that person
24        has been convicted in any state or federal court of 3  or
25        more  of  the  following  offenses: treason, first degree
26        murder, second degree murder, aggravated criminal  sexual
27        assault,  criminal  sexual  assault,  robbery,  burglary,
28        arson,  kidnaping,  aggravated battery resulting in great
29        bodily harm or permanent disability or disfigurement,  or
30        a  violation of Section 401(a) of the Illinois Controlled
31        Substances Act, when  the  third  offense  was  committed
32        after  conviction  on  the second, the second offense was
33        committed  after  conviction  on  the  first,   and   the
34        violation  of  Section 33A-2 of the Criminal Code of 1961
                            -19-               LRB9002449RCks
 1        was committed after conviction on the third.
 2             (11)  Beginning July 1, 1994, a term of imprisonment
 3        of not less than 10 years and  not  more  than  30  years
 4        shall  be  imposed  on  a  defendant who violates Section
 5        33A-2 with a Category I  weapon  where  the  offense  was
 6        committed in any school, or any conveyance owned, leased,
 7        or  contracted  by  a  school to transport students to or
 8        from school or a school related  activity,  on  the  real
 9        property  comprising any school or public park, and where
10        the offense was related to the activities of an organized
11        gang.   For  the  purposes  of   this   paragraph   (11),
12        "organized  gang"  has  the  meaning  ascribed  to  it in
13        Section 10 of the Illinois Streetgang  Terrorism  Omnibus
14        Prevention Act.
15        (d)  In  any  case in which a sentence originally imposed
16    is vacated, the case shall be remanded to  the  trial  court.
17    The  trial  court shall hold a hearing under Section 5-4-1 of
18    the Unified Code of Corrections which may include evidence of
19    the defendant's life, moral character and  occupation  during
20    the  time  since the original sentence was passed.  The trial
21    court shall then impose sentence  upon  the  defendant.   The
22    trial  court  may  impose  any sentence which could have been
23    imposed at the original trial subject to Section 5-5-4 of the
24    Unified Code of Corrections.
25        (e)  In  cases  where  prosecution  for  criminal  sexual
26    assault or aggravated criminal  sexual  abuse  under  Section
27    12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
28    conviction of a defendant who was  a  family  member  of  the
29    victim  at  the  time  of  the commission of the offense, the
30    court shall consider the safety and welfare of the victim and
31    may impose a sentence of probation only where:
32             (1)  the  court  finds  (A)  or  (B)  or  both   are
33        appropriate:
34                  (A)  the  defendant  is  willing  to  undergo a
                            -20-               LRB9002449RCks
 1             court approved  counseling  program  for  a  minimum
 2             duration of 2 years; or
 3                  (B)  the defendant is willing to participate in
 4             a  court  approved plan including but not limited to
 5             the defendant's:
 6                       (i)  removal from the household;
 7                       (ii)  restricted contact with the victim;
 8                       (iii)  continued financial support of  the
 9                  family;
10                       (iv)  restitution  for  harm  done  to the
11                  victim; and
12                       (v)  compliance with  any  other  measures
13                  that the court may deem appropriate; and
14             (2)  the  court  orders the defendant to pay for the
15        victim's counseling services,  to  the  extent  that  the
16        court finds, after considering the defendant's income and
17        assets,  that  the  defendant  is  financially capable of
18        paying for such services, if  the  victim  was  under  18
19        years  of  age  at the time the offense was committed and
20        requires counseling as a result of the offense.
21        Probation may be revoked or modified pursuant to  Section
22    5-6-4;  except where the court determines at the hearing that
23    the defendant violated a condition of his  or  her  probation
24    restricting  contact  with the victim or other family members
25    or commits another offense with the victim  or  other  family
26    members, the court shall revoke the defendant's probation and
27    impose a term of imprisonment.
28        For  the  purposes  of  this Section, "family member" and
29    "victim" shall have the meanings ascribed to them in  Section
30    12-12 of the Criminal Code of 1961.
31        (f)  This  Article  shall  not  deprive  a court in other
32    proceedings to order a forfeiture of property, to suspend  or
33    cancel  a  license,  to  remove  a  person from office, or to
34    impose any other civil penalty.
                            -21-               LRB9002449RCks
 1        (g)  Whenever a defendant  is  convicted  of  an  offense
 2    under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
 3    11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
 4    12-15  or  12-16  of the Criminal Code of 1961, the defendant
 5    shall  undergo  medical  testing  to  determine  whether  the
 6    defendant has any sexually transmissible disease, including a
 7    test for infection with human immunodeficiency virus (HIV) or
 8    any   other   identified   causative   agent   of    acquired
 9    immunodeficiency  syndrome  (AIDS).   Any  such  medical test
10    shall be performed only  by  appropriately  licensed  medical
11    practitioners  and  may  include  an  analysis  of any bodily
12    fluids as well as an examination of the  defendant's  person.
13    Except as otherwise provided by law, the results of such test
14    shall  be kept strictly confidential by all medical personnel
15    involved in the testing and must be personally delivered in a
16    sealed envelope to the  judge  of  the  court  in  which  the
17    conviction  was entered for the judge's inspection in camera.
18    Acting in accordance with the best interests  of  the  victim
19    and  the  public,  the  judge  shall  have  the discretion to
20    determine to whom, if anyone, the results of the testing  may
21    be revealed. The court shall notify the defendant of the test
22    results.  The court shall also notify the victim if requested
23    by  the  victim, and if the victim is under the age of 15 and
24    if requested by the victim's parents or legal  guardian,  the
25    court  shall notify the victim's parents or legal guardian of
26    the test results.  The court shall provide information on the
27    availability of HIV testing and counseling at  Department  of
28    Public  Health  facilities to all parties to whom the results
29    of the testing are revealed  and  shall  direct  the  State's
30    Attorney  to  provide  the  information  to  the  victim when
31    possible. A State's Attorney may petition the court to obtain
32    the results of any HIV test administered under this  Section,
33    and  the  court  shall  grant  the  disclosure if the State's
34    Attorney shows it is relevant in order to prosecute a  charge
                            -22-               LRB9002449RCks
 1    of  criminal transmission of HIV under Section 12-16.2 of the
 2    Criminal Code of 1961 against the defendant.  The court shall
 3    order that the cost of any such test shall  be  paid  by  the
 4    county  and  may  be  taxed  as  costs  against the convicted
 5    defendant.
 6        (g-5)  When  an  inmate  is  tested   for   an   airborne
 7    communicable   disease,   as   determined   by  the  Illinois
 8    Department of Public Health  including  but  not  limited  to
 9    tuberculosis,  the  results  of  the test shall be personally
10    delivered by the warden or his or her designee  in  a  sealed
11    envelope  to  the judge of the court in which the inmate must
12    appear for the judge's inspection in camera if  requested  by
13    the  judge.   Acting in accordance with the best interests of
14    those in the courtroom, the judge shall have  the  discretion
15    to  determine  what  if  any  precautions need to be taken to
16    prevent transmission of the disease in the courtroom.
17        (h)  Whenever a defendant  is  convicted  of  an  offense
18    under  Section  1 or 2 of the Hypodermic Syringes and Needles
19    Act, the defendant shall undergo medical testing to determine
20    whether   the   defendant   has   been   exposed   to   human
21    immunodeficiency  virus  (HIV)  or   any   other   identified
22    causative agent of acquired immunodeficiency syndrome (AIDS).
23    Except as otherwise provided by law, the results of such test
24    shall  be kept strictly confidential by all medical personnel
25    involved in the testing and must be personally delivered in a
26    sealed envelope to the  judge  of  the  court  in  which  the
27    conviction  was entered for the judge's inspection in camera.
28    Acting in accordance with the best interests of  the  public,
29    the  judge shall have the discretion to determine to whom, if
30    anyone, the results of the testing may be revealed. The court
31    shall notify the defendant of  a  positive  test  showing  an
32    infection  with  the  human immunodeficiency virus (HIV). The
33    court shall provide information on the  availability  of  HIV
34    testing   and  counseling  at  Department  of  Public  Health
                            -23-               LRB9002449RCks
 1    facilities to all parties to whom the results of the  testing
 2    are revealed and shall direct the State's Attorney to provide
 3    the  information  to  the  victim  when  possible.  A State's
 4    Attorney may petition the court to obtain the results of  any
 5    HIV  test  administered  under  this   Section, and the court
 6    shall grant the disclosure if the State's Attorney  shows  it
 7    is  relevant  in  order  to  prosecute  a  charge of criminal
 8    transmission of HIV under Section  12-16.2  of  the  Criminal
 9    Code  of  1961  against  the defendant. The court shall order
10    that the cost of any such test shall be paid  by  the  county
11    and may be taxed as costs against the convicted defendant.
12        (i)  All  fines  and penalties imposed under this Section
13    for any violation of Chapters 3, 4, 6, and 11 of the Illinois
14    Vehicle Code, or a similar provision of  a  local  ordinance,
15    and any violation of the Child Passenger Protection Act, or a
16    similar  provision  of  a local ordinance, shall be collected
17    and disbursed by the circuit clerk as provided under  Section
18    27.5 of the Clerks of Courts Act.
19        (j)  In  cases  when  prosecution  for  any  violation of
20    Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
21    11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
22    11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
23    12-16  of  the  Criminal  Code  of 1961, any violation of the
24    Illinois Controlled Substances Act, or any violation  of  the
25    Cannabis  Control Act results in conviction, a disposition of
26    court supervision, or an order  of  probation  granted  under
27    Section  10 of the Cannabis Control Act or Section 410 of the
28    Illinois Controlled Substance Act of a defendant,  the  court
29    shall  determine  whether  the  defendant  is  employed  by a
30    facility or center as defined under the  Child  Care  Act  of
31    1969,  a public or private elementary or secondary school, or
32    otherwise works with children under 18  years  of  age  on  a
33    daily  basis.   When  a  defendant  is so employed, the court
34    shall order the Clerk of the Court to  send  a  copy  of  the
                            -24-               LRB9002449RCks
 1    judgment  of  conviction or order of supervision or probation
 2    to  the  defendant's  employer  by  certified  mail.  If  the
 3    employer of the defendant is a school, the Clerk of the Court
 4    shall direct the  mailing  of  a  copy  of  the  judgment  of
 5    conviction  or  order  of  supervision  or  probation  to the
 6    appropriate regional superintendent of schools.  The regional
 7    superintendent of schools shall notify  the  State  Board  of
 8    Education of any notification under this subsection.
 9        (j-5)  A  defendant  at  least  17  years  of  age who is
10    convicted of  a  felony  and  who  has  not  been  previously
11    convicted  of a misdemeanor or felony and who is sentenced to
12    a  term  of  imprisonment  in  the  Illinois  Department   of
13    Corrections  shall  as  a condition of his or her sentence be
14    required by the court to attend educational courses  designed
15    to  prepare  the  defendant  for a high school diploma and to
16    work toward a high school diploma or to work  toward  passing
17    the high school level Test of General Educational Development
18    (GED)  or  to  work  toward  completing a vocational training
19    program offered by  the  Department  of  Corrections.   If  a
20    defendant fails to complete the educational training required
21    by  his or her sentence during the term of incarceration, the
22    Prisoner Review Board shall,  as  a  condition  of  mandatory
23    supervised  release, require the defendant, at his or her own
24    expense, to pursue a course of study  toward  a  high  school
25    diploma  or  passage  of  the  GED test.  The Prisoner Review
26    Board shall revoke the  mandatory  supervised  release  of  a
27    defendant  who  wilfully fails to comply with this subsection
28    (j-5) upon his or her release from  confinement  in  a  penal
29    institution  while  serving  a  mandatory  supervised release
30    term; however, the inability of the defendant after making  a
31    good  faith  effort  to  obtain  financial aid or pay for the
32    educational training shall not be deemed a wilful failure  to
33    comply.    The  Prisoner  Review  Board  shall  recommit  the
34    defendant whose mandatory supervised release  term  has  been
                            -25-               LRB9002449RCks
 1    revoked  under  this  subsection (j-5) as provided in Section
 2    3-3-9.  This subsection (j-5) does not apply to  a  defendant
 3    who  has a high school diploma or has successfully passed the
 4    GED test. This subsection (j-5) does not apply to a defendant
 5    who is determined by the court to be developmentally disabled
 6    or otherwise mentally incapable of completing the educational
 7    or vocational program.
 8        (k)  A court may not impose a sentence or disposition for
 9    a felony or misdemeanor that requires  the  defendant  to  be
10    implanted  or  injected  with  or  to  use  any form of birth
11    control.
12        (l)(A)  Except as provided in paragraph (C) of subsection
13    (l), whenever a defendant, who is an alien as defined by  the
14    Immigration  and  Nationality Act, is convicted of any felony
15    or  misdemeanor  offense,  the  court  after  sentencing  the
16    defendant may, upon motion  of  the  State's  Attorney,  hold
17    sentence  in abeyance and remand the defendant to the custody
18    of the Attorney General of the United States or  his  or  her
19    designated agent to be deported when:
20             (1)  a  final  order  of deportation has been issued
21        against the defendant pursuant to proceedings  under  the
22        Immigration and Nationality Act, and
23             (2)  the  deportation  of  the  defendant  would not
24        deprecate the seriousness of the defendant's conduct  and
25        would not be inconsistent with the ends of justice.
26        Otherwise,  the  defendant shall be sentenced as provided
27    in this Chapter V.
28        (B)  If the defendant has already been  sentenced  for  a
29    felony   or  misdemeanor  offense,  or  has  been  placed  on
30    probation under Section 10 of the  Cannabis  Control  Act  or
31    Section  410  of  the Illinois Controlled Substances Act, the
32    court may, upon motion of the State's Attorney to suspend the
33    sentence imposed, commit the defendant to the custody of  the
34    Attorney   General  of  the  United  States  or  his  or  her
                            -26-               LRB9002449RCks
 1    designated agent when:
 2             (1)  a final order of deportation  has  been  issued
 3        against  the  defendant pursuant to proceedings under the
 4        Immigration and Nationality Act, and
 5             (2)  the deportation  of  the  defendant  would  not
 6        deprecate  the seriousness of the defendant's conduct and
 7        would not be inconsistent with the ends of justice.
 8        (C)  This subsection (l) does not apply to offenders  who
 9    are  subject to the provisions of paragraph (2) of subsection
10    (a) of Section 3-6-3.
11        (D)  Upon motion of the State's Attorney, if a  defendant
12    sentenced  under  this Section returns to the jurisdiction of
13    the United States, the defendant shall be recommitted to  the
14    custody  of  the  county  from which he or she was sentenced.
15    Thereafter,  the  defendant  shall  be  brought  before   the
16    sentencing  court,  which  may  impose  any sentence that was
17    available  under  Section  5-5-3  at  the  time  of   initial
18    sentencing.  In addition, the defendant shall not be eligible
19    for additional good conduct credit for meritorious service as
20    provided under Section 3-6-6.
21    (Source: P.A.  88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
22    88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
23    3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95;  89-462,
24    eff.  5-29-96;  89-477,  eff.  6-18-96;  89-507, eff. 7-1-97;
25    89-545, eff. 7-25-96;  89-587,  eff.  7-31-96;  89-627,  eff.
26    1-1-97; 89-688, eff. 6-1-97; revised 1-7-97.)
27        Section  95.   No  acceleration or delay.  Where this Act
28    makes changes in a statute that is represented in this Act by
29    text that is not yet or no longer in effect (for  example,  a
30    Section  represented  by  multiple versions), the use of that
31    text does not accelerate or delay the taking  effect  of  (i)
32    the  changes made by this Act or (ii) provisions derived from
33    any other Public Act.
                            -27-               LRB9002449RCks
 1        Section 99. Effective date. This Act  takes  effect  upon
 2    becoming law.

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