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90_HB3726 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. LRB9010512RCks 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 -2- LRB9010512RCks 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. -3- LRB9010512RCks 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 -4- LRB9010512RCks 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 -5- LRB9010512RCks 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 22Class 1felony committed while he was serving a term of 23 probation,orconditional 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 -6- LRB9010512RCks 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 -7- LRB9010512RCks 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; -8- LRB9010512RCks 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 -9- LRB9010512RCks 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 -10- LRB9010512RCks 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 -11- LRB9010512RCks 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 -12- LRB9010512RCks 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 -13- LRB9010512RCks 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 -14- LRB9010512RCks 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.