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90_HB3654
730 ILCS 5/5-5-3 from Ch. 38, par. 1005-5-3
Amends the Unified Code of Corrections. Provides that a
defendant who commits a felony (now a Class 1 felony) while
on probation, conditional discharge, or mandatory supervised
release for a felony cannot receive probation or conditional
discharge for that felony. Effective immediately.
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LRB9010512RCks
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 Sec. 5-5-3. Disposition.
9 (a) Every person convicted of an offense shall be
10 sentenced as provided in this Section.
11 (b) The following options shall be appropriate
12 dispositions, alone or in combination, for all felonies and
13 misdemeanors other than those identified in subsection (c) of
14 this Section:
15 (1) A period of probation.
16 (2) A term of periodic imprisonment.
17 (3) A term of conditional discharge.
18 (4) A term of imprisonment.
19 (5) An order directing the offender to clean up and
20 repair the damage, if the offender was convicted under
21 paragraph (h) of Section 21-1 of the Criminal Code of
22 1961.
23 (6) A fine.
24 (7) An order directing the offender to make
25 restitution to the victim under Section 5-5-6 of this
26 Code.
27 (8) A sentence of participation in a county impact
28 incarceration program under Section 5-8-1.2 of this Code.
29 Whenever an individual is sentenced for an offense based
30 upon an arrest for a violation of Section 11-501 of the
31 Illinois Vehicle Code, or a similar provision of a local
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1 ordinance, and the professional evaluation recommends
2 remedial or rehabilitative treatment or education, neither
3 the treatment nor the education shall be the sole disposition
4 and either or both may be imposed only in conjunction with
5 another disposition. The court shall monitor compliance with
6 any remedial education or treatment recommendations contained
7 in the professional evaluation. Programs conducting alcohol
8 or other drug evaluation or remedial education must be
9 licensed by the Department of Human Services. However, if
10 the individual is not a resident of Illinois, the court may
11 accept an alcohol or other drug evaluation or remedial
12 education program in the state of such individual's
13 residence. Programs providing treatment must be licensed
14 under existing applicable alcoholism and drug treatment
15 licensure standards.
16 In addition to any other fine or penalty required by law,
17 any individual convicted of a violation of Section 11-501 of
18 the Illinois Vehicle Code or a similar provision of local
19 ordinance, whose operation of a motor vehicle while in
20 violation of Section 11-501 or such ordinance proximately
21 caused an incident resulting in an appropriate emergency
22 response, shall be required to make restitution to a public
23 agency for the costs of that emergency response. Such
24 restitution shall not exceed $500 per public agency for each
25 such emergency response. For the purpose of this paragraph,
26 emergency response shall mean any incident requiring a
27 response by: a police officer as defined under Section 1-162
28 of the Illinois Vehicle Code; a fireman carried on the rolls
29 of a regularly constituted fire department; and an ambulance
30 as defined under Section 4.05 of the Emergency Medical
31 Services (EMS) Systems Act.
32 Neither a fine nor restitution shall be the sole
33 disposition for a felony and either or both may be imposed
34 only in conjunction with another disposition.
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1 (c) (1) When a defendant is found guilty of first degree
2 murder the State may either seek a sentence of
3 imprisonment under Section 5-8-1 of this Code, or where
4 appropriate seek a sentence of death under Section 9-1 of
5 the Criminal Code of 1961.
6 (2) A period of probation, a term of periodic
7 imprisonment or conditional discharge shall not be
8 imposed for the following offenses. The court shall
9 sentence the offender to not less than the minimum term
10 of imprisonment set forth in this Code for the following
11 offenses, and may order a fine or restitution or both in
12 conjunction with such term of imprisonment:
13 (A) First degree murder where the death
14 penalty is not imposed.
15 (B) Attempted first degree murder.
16 (C) A Class X felony.
17 (D) A violation of Section 401.1 or 407 of the
18 Illinois Controlled Substances Act, or a violation
19 of subdivision (c)(2) of Section 401 of that Act
20 which relates to more than 5 grams of a substance
21 containing cocaine or an analog thereof.
22 (E) A violation of Section 5.1 or 9 of the
23 Cannabis Control Act.
24 (F) A Class 2 or greater felony if the
25 offender had been convicted of a Class 2 or greater
26 felony within 10 years of the date on which he
27 committed the offense for which he is being
28 sentenced.
29 (G) Residential burglary.
30 (H) Criminal sexual assault, except as
31 otherwise provided in subsection (e) of this
32 Section.
33 (I) Aggravated battery of a senior citizen.
34 (J) A forcible felony if the offense was
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1 related to the activities of an organized gang.
2 Before July 1, 1994, for the purposes of this
3 paragraph, "organized gang" means an association of
4 5 or more persons, with an established hierarchy,
5 that encourages members of the association to
6 perpetrate crimes or provides support to the members
7 of the association who do commit crimes.
8 Beginning July 1, 1994, for the purposes of
9 this paragraph, "organized gang" has the meaning
10 ascribed to it in Section 10 of the Illinois
11 Streetgang Terrorism Omnibus Prevention Act.
12 (K) Vehicular hijacking.
13 (L) A second or subsequent conviction for the
14 offense of hate crime when the underlying offense
15 upon which the hate crime is based is felony
16 aggravated assault or felony mob action.
17 (M) A second or subsequent conviction for the
18 offense of institutional vandalism if the damage to
19 the property exceeds $300.
20 (N) A Class 3 felony violation of paragraph
21 (1) of subsection (a) of Section 2 of the Firearm
22 Owners Identification Card Act.
23 (O) A violation of Section 12-6.1 of the
24 Criminal Code of 1961.
25 (P) A violation of paragraph (1), (2), (3),
26 (4), (5), or (7) of subsection (a) of Section
27 11-20.1 of the Criminal Code of 1961.
28 (3) A minimum term of imprisonment of not less than
29 48 consecutive hours or 100 hours of community service as
30 may be determined by the court shall be imposed for a
31 second or subsequent violation committed within 5 years
32 of a previous violation of Section 11-501 of the Illinois
33 Vehicle Code or a similar provision of a local ordinance.
34 (4) A minimum term of imprisonment of not less than
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1 7 consecutive days or 30 days of community service shall
2 be imposed for a violation of paragraph (c) of Section
3 6-303 of the Illinois Vehicle Code.
4 (4.1) A minimum term of 30 consecutive days of
5 imprisonment, 40 days of 24 hour periodic imprisonment or
6 720 hours of community service, as may be determined by
7 the court, shall be imposed for a violation of Section
8 11-501 of the Illinois Vehicle Code during a period in
9 which the defendant's driving privileges are revoked or
10 suspended, where the revocation or suspension was for a
11 violation of Section 11-501 or Section 11-501.1 of that
12 Code.
13 (5) The court may sentence an offender convicted of
14 a business offense or a petty offense or a corporation or
15 unincorporated association convicted of any offense to:
16 (A) a period of conditional discharge;
17 (B) a fine;
18 (C) make restitution to the victim under
19 Section 5-5-6 of this Code.
20 (6) In no case shall an offender be eligible for a
21 disposition of probation or conditional discharge for a
22 Class 1 felony committed while he was serving a term of
23 probation, or conditional discharge, or mandatory
24 supervised release for a felony.
25 (7) When a defendant is adjudged a habitual
26 criminal under Article 33B of the Criminal Code of 1961,
27 the court shall sentence the defendant to a term of
28 natural life imprisonment.
29 (8) When a defendant, over the age of 21 years, is
30 convicted of a Class 1 or Class 2 felony, after having
31 twice been convicted of any Class 2 or greater Class
32 felonies in Illinois, and such charges are separately
33 brought and tried and arise out of different series of
34 acts, such defendant shall be sentenced as a Class X
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1 offender. This paragraph shall not apply unless (1) the
2 first felony was committed after the effective date of
3 this amendatory Act of 1977; and (2) the second felony
4 was committed after conviction on the first; and (3) the
5 third felony was committed after conviction on the
6 second.
7 (9) A defendant convicted of a second or subsequent
8 offense of ritualized abuse of a child may be sentenced
9 to a term of natural life imprisonment.
10 (10) Beginning July 1, 1994, unless sentencing
11 under Section 33B-1 is applicable, a term of imprisonment
12 of not less than 15 years nor more than 50 years shall be
13 imposed on a defendant who violates Section 33A-2 of the
14 Criminal Code of 1961 with a firearm, when that person
15 has been convicted in any state or federal court of 3 or
16 more of the following offenses: treason, first degree
17 murder, second degree murder, aggravated criminal sexual
18 assault, criminal sexual assault, robbery, burglary,
19 arson, kidnaping, aggravated battery resulting in great
20 bodily harm or permanent disability or disfigurement, or
21 a violation of Section 401(a) of the Illinois Controlled
22 Substances Act, when the third offense was committed
23 after conviction on the second, the second offense was
24 committed after conviction on the first, and the
25 violation of Section 33A-2 of the Criminal Code of 1961
26 was committed after conviction on the third.
27 (11) Beginning July 1, 1994, a term of imprisonment
28 of not less than 10 years and not more than 30 years
29 shall be imposed on a defendant who violates Section
30 33A-2 with a Category I weapon where the offense was
31 committed in any school, or any conveyance owned, leased,
32 or contracted by a school to transport students to or
33 from school or a school related activity, on the real
34 property comprising any school or public park, and where
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1 the offense was related to the activities of an organized
2 gang. For the purposes of this paragraph (11),
3 "organized gang" has the meaning ascribed to it in
4 Section 10 of the Illinois Streetgang Terrorism Omnibus
5 Prevention Act.
6 (d) In any case in which a sentence originally imposed
7 is vacated, the case shall be remanded to the trial court.
8 The trial court shall hold a hearing under Section 5-4-1 of
9 the Unified Code of Corrections which may include evidence of
10 the defendant's life, moral character and occupation during
11 the time since the original sentence was passed. The trial
12 court shall then impose sentence upon the defendant. The
13 trial court may impose any sentence which could have been
14 imposed at the original trial subject to Section 5-5-4 of the
15 Unified Code of Corrections.
16 (e) In cases where prosecution for criminal sexual
17 assault or aggravated criminal sexual abuse under Section
18 12-13 or 12-16 of the Criminal Code of 1961 results in
19 conviction of a defendant who was a family member of the
20 victim at the time of the commission of the offense, the
21 court shall consider the safety and welfare of the victim and
22 may impose a sentence of probation only where:
23 (1) the court finds (A) or (B) or both are
24 appropriate:
25 (A) the defendant is willing to undergo a
26 court approved counseling program for a minimum
27 duration of 2 years; or
28 (B) the defendant is willing to participate in
29 a court approved plan including but not limited to
30 the defendant's:
31 (i) removal from the household;
32 (ii) restricted contact with the victim;
33 (iii) continued financial support of the
34 family;
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1 (iv) restitution for harm done to the
2 victim; and
3 (v) compliance with any other measures
4 that the court may deem appropriate; and
5 (2) the court orders the defendant to pay for the
6 victim's counseling services, to the extent that the
7 court finds, after considering the defendant's income and
8 assets, that the defendant is financially capable of
9 paying for such services, if the victim was under 18
10 years of age at the time the offense was committed and
11 requires counseling as a result of the offense.
12 Probation may be revoked or modified pursuant to Section
13 5-6-4; except where the court determines at the hearing that
14 the defendant violated a condition of his or her probation
15 restricting contact with the victim or other family members
16 or commits another offense with the victim or other family
17 members, the court shall revoke the defendant's probation and
18 impose a term of imprisonment.
19 For the purposes of this Section, "family member" and
20 "victim" shall have the meanings ascribed to them in Section
21 12-12 of the Criminal Code of 1961.
22 (f) This Article shall not deprive a court in other
23 proceedings to order a forfeiture of property, to suspend or
24 cancel a license, to remove a person from office, or to
25 impose any other civil penalty.
26 (g) Whenever a defendant is convicted of an offense
27 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
28 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
29 12-15 or 12-16 of the Criminal Code of 1961, the defendant
30 shall undergo medical testing to determine whether the
31 defendant has any sexually transmissible disease, including a
32 test for infection with human immunodeficiency virus (HIV) or
33 any other identified causative agent of acquired
34 immunodeficiency syndrome (AIDS). Any such medical test
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1 shall be performed only by appropriately licensed medical
2 practitioners and may include an analysis of any bodily
3 fluids as well as an examination of the defendant's person.
4 Except as otherwise provided by law, the results of such test
5 shall be kept strictly confidential by all medical personnel
6 involved in the testing and must be personally delivered in a
7 sealed envelope to the judge of the court in which the
8 conviction was entered for the judge's inspection in camera.
9 Acting in accordance with the best interests of the victim
10 and the public, the judge shall have the discretion to
11 determine to whom, if anyone, the results of the testing may
12 be revealed. The court shall notify the defendant of the test
13 results. The court shall also notify the victim if requested
14 by the victim, and if the victim is under the age of 15 and
15 if requested by the victim's parents or legal guardian, the
16 court shall notify the victim's parents or legal guardian of
17 the test results. The court shall provide information on the
18 availability of HIV testing and counseling at Department of
19 Public Health facilities to all parties to whom the results
20 of the testing are revealed and shall direct the State's
21 Attorney to provide the information to the victim when
22 possible. A State's Attorney may petition the court to obtain
23 the results of any HIV test administered under this Section,
24 and the court shall grant the disclosure if the State's
25 Attorney shows it is relevant in order to prosecute a charge
26 of criminal transmission of HIV under Section 12-16.2 of the
27 Criminal Code of 1961 against the defendant. The court shall
28 order that the cost of any such test shall be paid by the
29 county and may be taxed as costs against the convicted
30 defendant.
31 (g-5) When an inmate is tested for an airborne
32 communicable disease, as determined by the Illinois
33 Department of Public Health including but not limited to
34 tuberculosis, the results of the test shall be personally
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1 delivered by the warden or his or her designee in a sealed
2 envelope to the judge of the court in which the inmate must
3 appear for the judge's inspection in camera if requested by
4 the judge. Acting in accordance with the best interests of
5 those in the courtroom, the judge shall have the discretion
6 to determine what if any precautions need to be taken to
7 prevent transmission of the disease in the courtroom.
8 (h) Whenever a defendant is convicted of an offense
9 under Section 1 or 2 of the Hypodermic Syringes and Needles
10 Act, the defendant shall undergo medical testing to determine
11 whether the defendant has been exposed to human
12 immunodeficiency virus (HIV) or any other identified
13 causative agent of acquired immunodeficiency syndrome (AIDS).
14 Except as otherwise provided by law, the results of such test
15 shall be kept strictly confidential by all medical personnel
16 involved in the testing and must be personally delivered in a
17 sealed envelope to the judge of the court in which the
18 conviction was entered for the judge's inspection in camera.
19 Acting in accordance with the best interests of the public,
20 the judge shall have the discretion to determine to whom, if
21 anyone, the results of the testing may be revealed. The court
22 shall notify the defendant of a positive test showing an
23 infection with the human immunodeficiency virus (HIV). The
24 court shall provide information on the availability of HIV
25 testing and counseling at Department of Public Health
26 facilities to all parties to whom the results of the testing
27 are revealed and shall direct the State's Attorney to provide
28 the information to the victim when possible. A State's
29 Attorney may petition the court to obtain the results of any
30 HIV test administered under this Section, and the court
31 shall grant the disclosure if the State's Attorney shows it
32 is relevant in order to prosecute a charge of criminal
33 transmission of HIV under Section 12-16.2 of the Criminal
34 Code of 1961 against the defendant. The court shall order
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1 that the cost of any such test shall be paid by the county
2 and may be taxed as costs against the convicted defendant.
3 (i) All fines and penalties imposed under this Section
4 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
5 Vehicle Code, or a similar provision of a local ordinance,
6 and any violation of the Child Passenger Protection Act, or a
7 similar provision of a local ordinance, shall be collected
8 and disbursed by the circuit clerk as provided under Section
9 27.5 of the Clerks of Courts Act.
10 (j) In cases when prosecution for any violation of
11 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
12 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
13 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
14 12-16 of the Criminal Code of 1961, any violation of the
15 Illinois Controlled Substances Act, or any violation of the
16 Cannabis Control Act results in conviction, a disposition of
17 court supervision, or an order of probation granted under
18 Section 10 of the Cannabis Control Act or Section 410 of the
19 Illinois Controlled Substance Act of a defendant, the court
20 shall determine whether the defendant is employed by a
21 facility or center as defined under the Child Care Act of
22 1969, a public or private elementary or secondary school, or
23 otherwise works with children under 18 years of age on a
24 daily basis. When a defendant is so employed, the court
25 shall order the Clerk of the Court to send a copy of the
26 judgment of conviction or order of supervision or probation
27 to the defendant's employer by certified mail. If the
28 employer of the defendant is a school, the Clerk of the Court
29 shall direct the mailing of a copy of the judgment of
30 conviction or order of supervision or probation to the
31 appropriate regional superintendent of schools. The regional
32 superintendent of schools shall notify the State Board of
33 Education of any notification under this subsection.
34 (j-5) A defendant at least 17 years of age who is
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1 convicted of a felony and who has not been previously
2 convicted of a misdemeanor or felony and who is sentenced to
3 a term of imprisonment in the Illinois Department of
4 Corrections shall as a condition of his or her sentence be
5 required by the court to attend educational courses designed
6 to prepare the defendant for a high school diploma and to
7 work toward a high school diploma or to work toward passing
8 the high school level Test of General Educational Development
9 (GED) or to work toward completing a vocational training
10 program offered by the Department of Corrections. If a
11 defendant fails to complete the educational training required
12 by his or her sentence during the term of incarceration, the
13 Prisoner Review Board shall, as a condition of mandatory
14 supervised release, require the defendant, at his or her own
15 expense, to pursue a course of study toward a high school
16 diploma or passage of the GED test. The Prisoner Review
17 Board shall revoke the mandatory supervised release of a
18 defendant who wilfully fails to comply with this subsection
19 (j-5) upon his or her release from confinement in a penal
20 institution while serving a mandatory supervised release
21 term; however, the inability of the defendant after making a
22 good faith effort to obtain financial aid or pay for the
23 educational training shall not be deemed a wilful failure to
24 comply. The Prisoner Review Board shall recommit the
25 defendant whose mandatory supervised release term has been
26 revoked under this subsection (j-5) as provided in Section
27 3-3-9. This subsection (j-5) does not apply to a defendant
28 who has a high school diploma or has successfully passed the
29 GED test. This subsection (j-5) does not apply to a defendant
30 who is determined by the court to be developmentally disabled
31 or otherwise mentally incapable of completing the educational
32 or vocational program.
33 (k) A court may not impose a sentence or disposition for
34 a felony or misdemeanor that requires the defendant to be
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1 implanted or injected with or to use any form of birth
2 control.
3 (l)(A) Except as provided in paragraph (C) of subsection
4 (l), whenever a defendant, who is an alien as defined by the
5 Immigration and Nationality Act, is convicted of any felony
6 or misdemeanor offense, the court after sentencing the
7 defendant may, upon motion of the State's Attorney, hold
8 sentence in abeyance and remand the defendant to the custody
9 of the Attorney General of the United States or his or her
10 designated agent to be deported when:
11 (1) a final order of deportation has been issued
12 against the defendant pursuant to proceedings under the
13 Immigration and Nationality Act, and
14 (2) the deportation of the defendant would not
15 deprecate the seriousness of the defendant's conduct and
16 would not be inconsistent with the ends of justice.
17 Otherwise, the defendant shall be sentenced as provided
18 in this Chapter V.
19 (B) If the defendant has already been sentenced for a
20 felony or misdemeanor offense, or has been placed on
21 probation under Section 10 of the Cannabis Control Act or
22 Section 410 of the Illinois Controlled Substances Act, the
23 court may, upon motion of the State's Attorney to suspend the
24 sentence imposed, commit the defendant to the custody of the
25 Attorney General of the United States or his or her
26 designated agent when:
27 (1) a final order of deportation has been issued
28 against the defendant pursuant to proceedings under the
29 Immigration and Nationality Act, and
30 (2) the deportation of the defendant would not
31 deprecate the seriousness of the defendant's conduct and
32 would not be inconsistent with the ends of justice.
33 (C) This subsection (l) does not apply to offenders who
34 are subject to the provisions of paragraph (2) of subsection
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1 (a) of Section 3-6-3.
2 (D) Upon motion of the State's Attorney, if a defendant
3 sentenced under this Section returns to the jurisdiction of
4 the United States, the defendant shall be recommitted to the
5 custody of the county from which he or she was sentenced.
6 Thereafter, the defendant shall be brought before the
7 sentencing court, which may impose any sentence that was
8 available under Section 5-5-3 at the time of initial
9 sentencing. In addition, the defendant shall not be eligible
10 for additional good conduct credit for meritorious service as
11 provided under Section 3-6-6.
12 (Source: P.A. 89-8, eff. 3-21-95; 89-314, eff. 1-1-96;
13 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-477, eff.
14 6-18-96; 89-507, eff. 7-1-97; 89-545, eff. 7-25-96; 89-587,
15 eff. 7-31-96; 89-627, eff. 1-1-97; 89-688, eff. 6-1-97;
16 90-14, eff. 7-1-97; 90-68, eff. 7-8-97.)
17 Section 99. Effective date. This Act takes effect upon
18 becoming law.