State of Illinois
90th General Assembly
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90_HB3727

      705 ILCS 405/5-4          from Ch. 37, par. 805-4
      705 ILCS 405/5-805
          Amends the  Juvenile  Court  Act.   Provides  that  if  a
      petition  alleges commission by a minor age 13 or older of an
      act that constitutes a felony, and if a motion by  a  State's
      Attorney  to  prosecute  the  minor  under  the  criminal law
      alleges  that  the  minor  has  previously  been  adjudicated
      delinquent for commission of 2 acts that constitute felonies,
      then the court, upon determining that there is probable cause
      that the allegation is true, shall permit prosecution of  the
      minor under the criminal laws.
                                                     LRB9010514RCpc
                                               LRB9010514RCpc
 1        AN ACT in relation to juveniles.
 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:
 4        Section 5.  The Juvenile Court Act of 1987 is amended, if
 5    and only if Senate Bill 363 of the 90th General Assembly does
 6    not become law, by changing Section 5-4 as follows:
 7        (705 ILCS 405/5-4) (from Ch. 37, par. 805-4)
 8        Sec. 5-4. Criminal prosecutions limited.
 9        (1)  Except as provided in this Section, no minor who was
10    under 17 years of age at the time of the alleged offense  may
11    be  prosecuted  under  the criminal laws of this State or for
12    violation of an ordinance of  any  political  subdivision  of
13    this State.
14        (2)  Subject to subsection (5) of Section 5-10, any minor
15    alleged to have committed a traffic, boating or fish and game
16    law  violation, whether or not the violation is punishable by
17    imprisonment or an offense punishable by fine  only,  may  be
18    prosecuted  for  the  violation  and if found guilty punished
19    under any statute or ordinance  relating  to  the  violation,
20    without  reference  to  the  procedures  set out in this Act,
21    except that detention, if any, must  be  in  compliance  with
22    this Act.
23        For  the  purpose  of  this  Section, "traffic violation"
24    shall include a violation of Section 9-3 of the Criminal Code
25    of 1961 relating to the  offense  of  reckless  homicide,  or
26    Section  11-501  of the Illinois Vehicle Code, or any similar
27    provision of a local ordinance.
28        (3) (a)  If a petition alleges commission by a  minor  13
29        years  of  age or over of an act that constitutes a crime
30        under the laws of  this  State  and,  on  motion  of  the
31        State's  Attorney,  a  Juvenile  Judge  designated by the
                            -2-                LRB9010514RCpc
 1        Chief Judge of the Circuit to hear  and  determine  those
 2        motions,  after  investigation  and  hearing  but  before
 3        commencement  of  the adjudicatory hearing, finds that it
 4        is not in the best interests  of  the  minor  or  of  the
 5        public  to proceed under this Act, the court may enter an
 6        order permitting prosecution under the criminal laws.
 7             (b)  In making its  determination  on  a  motion  to
 8        permit  prosecution  under  the  criminal laws, the court
 9        shall consider among other matters: (i) whether there  is
10        sufficient  evidence  upon  which  a  grand  jury  may be
11        expected to return an indictment; (ii) whether  there  is
12        evidence  that  the  alleged  offense was committed in an
13        aggressive and premeditated manner; (iii) the age of  the
14        minor;  (iv)  the  previous  history  of  the  minor; (v)
15        whether there are facilities  particularly  available  to
16        the  Juvenile  Court for the treatment and rehabilitation
17        of the minor; (vi) whether the best interest of the minor
18        and the security of the public may require that the minor
19        continue in custody or under  supervision  for  a  period
20        extending  beyond  his  minority; (vii) whether the minor
21        possessed a deadly weapon  when  committing  the  alleged
22        offense;  and  (viii)  whether  the  alleged offense is a
23        felony offense under Section 5 of  the  Cannabis  Control
24        Act  committed  while in a school, regardless of the time
25        of day or the time of  year,  or  any  conveyance  owned,
26        leased or contracted by a school to transport students to
27        or  from school or a school related activity, on the real
28        property comprising any school, regardless of the time of
29        day or the time of year, or on a public way within  1,000
30        feet   of   the  real  property  comprising  any  school,
31        regardless of the time  of  day  or  the  time  of  year.
32        School  is  defined, for the purposes of this Section, as
33        any public or private  elementary  or  secondary  school,
34        community  college, college, or university.  The rules of
                            -3-                LRB9010514RCpc
 1        evidence shall be the same as under Section 5-22 of  this
 2        Act, but no hearing on the motion may be commenced unless
 3        the minor is represented in court by counsel.
 4             (c)  If  criminal  proceedings  are  instituted, the
 5        petition shall be dismissed insofar as the  act  or  acts
 6        involved  in  the  criminal  proceedings  are  concerned.
 7        Taking of evidence in an adjudicatory hearing in any such
 8        case  is  a  bar  to  criminal proceedings based upon the
 9        conduct alleged in the petition.
10        (3.1)  If a petition alleges commission  by  a  minor  15
11    years  of  age or older of an act that constitutes a forcible
12    felony under the laws of this State, and if a motion  by  the
13    State's  Attorney  to  prosecute the minor under the criminal
14    laws of Illinois for the alleged forcible felony alleges that
15    (i) the minor has previously been adjudicated delinquent  for
16    commission of an act that constitutes a felony under the laws
17    of  this  State  or  any  other  state  and (ii) the act that
18    constitutes the  offense  was  committed  in  furtherance  of
19    criminal  activity  by  an organized gang, the Juvenile Judge
20    designated to hear and determine those  motions  shall,  upon
21    determining   that   there   is   probable  cause  that  both
22    allegations are true, enter an order  permitting  prosecution
23    under the criminal laws of Illinois.
24        (3.2)  If  a  petition  alleges  commission by a minor 15
25    years of age or older of an act  that  constitutes  a  felony
26    under  the  laws  of this State, and if a motion by a State's
27    Attorney to prosecute the minor under the  criminal  laws  of
28    Illinois  for  the  alleged felony alleges that (i) the minor
29    has previously been adjudicated delinquent for commission  of
30    an  act  that constitutes a forcible felony under the laws of
31    this  State  or  any  other  state  and  (ii)  the  act  that
32    constitutes the  offense  was  committed  in  furtherance  of
33    criminal  activities by an organized gang, the Juvenile Judge
34    designated to hear and determine those  motions  shall,  upon
                            -4-                LRB9010514RCpc
 1    determining   that   there   is   probable  cause  that  both
 2    allegations are true, enter an order  permitting  prosecution
 3    under the criminal laws of Illinois.
 4        (3.3) (a)  If  the  State's Attorney files a motion under
 5    subsection (3)(a) to permit prosecution  under  the  criminal
 6    laws  and  the  petition alleges the commission by a minor 15
 7    years of age or older of:  (i)  a Class X felony  other  than
 8    armed  violence;    (ii)   aggravated discharge of a firearm;
 9    (iii)  armed violence  with  a  firearm  when  the  predicate
10    offense  is  a  Class  1  or  Class  2 felony and the State's
11    Attorney's motion to  transfer  the  case  alleges  that  the
12    offense   committed   is   in  furtherance  of  the  criminal
13    activities of an organized gang and the case is not  required
14    to  be  prosecuted  under  the  criminal  laws of Illinois as
15    provided by subsection (3.1) or (3.2);  (iv)  armed  violence
16    with  a  firearm when the predicate offense is a violation of
17    Section 401, subsection (a)  of  Section  402,  Section  404,
18    Section  405, Section 405.1, subsection (a) of Section 405.2,
19    Section 407, Section 407.1, or Section 407.2 of the  Illinois
20    Controlled  Substances  Act;  or (v)  armed violence when the
21    weapon involved was a machine gun or other  weapon  described
22    in  subsection (a)(7) of Section 24-1 of the Criminal Code of
23    1961, and, if the  juvenile  judge  designated  to  hear  and
24    determine  motions  to transfer a case for prosecution in the
25    criminal court determines that there  is  probable  cause  to
26    believe  that  the allegations in the petition and motion are
27    true, there is a rebuttable presumption that the minor is not
28    a fit and proper subject to be dealt with under the  Juvenile
29    Court  Act of 1987, and that, except as provided in paragraph
30    (b), the case should be transferred to the criminal court.
31        (b)  The  judge   shall   enter   an   order   permitting
32    prosecution  under  the  criminal laws of Illinois unless the
33    judge makes a finding based on evidence that the minor  would
34    be  amenable  to  the  care, treatment, and training programs
                            -5-                LRB9010514RCpc
 1    available through the facilities of the juvenile court  based
 2    on an evaluation of the following:
 3                  (i)  The   circumstances  and  gravity  of  the
 4             offense alleged to have been committed by the minor.
 5                  (ii)  The age of the minor.
 6                  (iii)  The degree  of  criminal  sophistication
 7             exhibited by the minor.
 8                  (iv)  Whether  there is a reasonable likelihood
 9             that the  minor  can  be  rehabilitated  before  the
10             expiration of the juvenile court's jurisdiction.
11                  (v)  The    minor's    previous    history   of
12             delinquency.
13                  (vi)  Whether the offense was committed  in  an
14             aggressive, premeditated or calculated manner.
15                  (vii)  Whether  there are sufficient facilities
16             available to the juvenile court  for  the  treatment
17             and rehabilitation of the minor.
18        For  purposes  of  subsections  (3.1),  (3.2),  and (3.3)
19    "organized gang" has the meaning ascribed to it in Section 10
20    of the Illinois Streetgang Terrorism Omnibus Prevention Act.
21        (3.4)  If a petition alleges commission  by  a  minor  13
22    years  of  age  or  older of an act that constitutes a felony
23    under the laws of this State, and if a motion  by  a  State's
24    Attorney  to  prosecute  the minor under the criminal laws of
25    Illinois for the alleged felony alleges that  the  minor  has
26    previously  been  adjudicated  delinquent for commission of 2
27    acts that constitute felonies under the laws of this State or
28    any other state, the Juvenile Judge designated  to  hear  and
29    determine those motions shall, upon determining that there is
30    probable  cause  that  the allegation is true, enter an order
31    permitting prosecution under the criminal laws of Illinois.
32        (4)  Nothing  in  this  Act  prohibits  or   limits   the
33    prosecution of any minor for an offense committed on or after
34    his or her 17th birthday even though he or she is at the time
                            -6-                LRB9010514RCpc
 1    of the offense a ward of the court.
 2        (5)  If an original petition for adjudication of wardship
 3    alleges  the commission by a minor 13 years of age or over of
 4    an act that constitutes a crime under the laws of this State,
 5    the minor, with the consent of his or her  counsel,  may,  at
 6    any  time  before  commencement  of the adjudicatory hearing,
 7    file with the court a motion  that  criminal  prosecution  be
 8    ordered and that the petition be dismissed insofar as the act
 9    or  acts  involved in the criminal proceedings are concerned.
10    If such a motion is filed as herein provided, the court shall
11    enter its order accordingly.
12        (6) (a)  The definition of delinquent minor under Section
13        5-3 of this Act shall not apply to any minor who  at  the
14        time  of  an offense was at least 15 years of age and who
15        is charged with first degree murder, aggravated  criminal
16        sexual  assault, armed robbery when the armed robbery was
17        committed with a firearm, aggravated vehicular  hijacking
18        when  the  hijacking  was  committed  with  a firearm, or
19        violation of the provisions of paragraph (1),  (3),  (4),
20        or (10) of subsection (a) of Section 24-1 of the Criminal
21        Code  of  1961 while in the building or on the grounds of
22        any elementary or secondary  school,  community  college,
23        college  or  university.   These  charges  and  all other
24        charges  arising  out  of  the  same  incident  shall  be
25        prosecuted under the Criminal Code of 1961.
26             (b)  If before  trial  or  plea  an  information  or
27        indictment  is  filed  which  does  not charge an offense
28        specified in paragraph (a) of this  subsection  (6),  the
29        State's  Attorney  may  proceed  on  the lesser charge or
30        charges, but only  in  Juvenile  Court  under  the  other
31        provisions  of  this  Act,  unless before trial the minor
32        defendant knowingly and with advice of counsel waives, in
33        writing, his or her right to have the matter  proceed  in
34        Juvenile  Court.   If before trial or plea an information
                            -7-                LRB9010514RCpc
 1        or indictment is filed that includes one or more  charges
 2        specified  in  paragraph  (a)  of this subsection (6) and
 3        additional  charges  that  are  not  specified  in   that
 4        paragraph,  all  of  the  charges arising out of the same
 5        incident shall be prosecuted under the Criminal  Code  of
 6        1961.
 7             (c) (i)  If   after  trial  or  plea  the  minor  is
 8             convicted of any offense covered by paragraph (a) of
 9             this subsection (6), then, in sentencing the  minor,
10             the   court   shall   have   available  any  or  all
11             dispositions  prescribed  for  that  offense   under
12             Chapter V of the Unified Code of Corrections.
13                  (ii)  If  after trial or plea the minor is only
14             convicted of an offense not covered by paragraph (a)
15             of this subsection (6),  the  conviction  shall  not
16             invalidate  the  verdict  or  the prosecution of the
17             minor under the criminal laws of the State; however,
18             unless the State requests a hearing for the  purpose
19             of  sentencing  the  minor  under  Chapter  V of the
20             Unified Code of Corrections, the Court must  proceed
21             under  Sections  5-22  and 5-23 of this Act.  Should
22             the State request a hearing it must do so by written
23             motion within 10  days  following  the  entry  of  a
24             finding  or  the  return  of  a verdict.  Reasonable
25             notice of the motion shall be served upon the  minor
26             or his counsel.  If the motion is made by the State,
27             the  court  shall  conduct a hearing to determine if
28             the  request  should  be  granted.   In  making  its
29             determination  on  the  motion,  the   court   shall
30             consider  among  other matters: (a) whether there is
31             evidence  that  the  offense  was  committed  in  an
32             aggressive and premeditated manner; (b) the  age  of
33             the  minor;  (c)  the previous history of the minor;
34             (d)  whether  there  are   facilities   particularly
                            -8-                LRB9010514RCpc
 1             available to the Juvenile Court or the Department of
 2             Corrections,  Juvenile  Division,  for the treatment
 3             and rehabilitation of the  minor;  (e)  whether  the
 4             best  interest  of the minor and the security of the
 5             public require sentencing under  Chapter  V  of  the
 6             Unified  Code  of  Corrections;  and (f) whether the
 7             minor possessed a deadly weapon when committing  the
 8             offense.  The rules of evidence shall be the same as
 9             if  at  trial.  If after the hearing the court finds
10             that the minor should be sentenced under  Chapter  V
11             of  the  Unified Code of Corrections, then the court
12             shall  sentence   the   minor   accordingly   having
13             available   to   it   any  or  all  dispositions  so
14             prescribed.
15        (7) (a)  The definition of delinquent minor under Section
16        5-3 of this Act shall not apply to any minor who  at  the
17        time  of  an offense was at least 15 years of age and who
18        is charged with an  offense  under  Section  401  of  the
19        Illinois  Controlled  Substances  Act  while in a school,
20        regardless of the time of day or the time of year, or any
21        conveyance owned, leased or contracted  by  a  school  to
22        transport  students to or from school or a school related
23        activity, or residential  property  owned,  operated  and
24        managed  by a public housing agency, on the real property
25        comprising any school, regardless of the time of  day  or
26        the time of year, or residential property owned, operated
27        and  managed  by  a public housing agency, or on a public
28        way within 1,000 feet of the real property comprising any
29        school, regardless of the time of  day  or  the  time  of
30        year, or residential property owned, operated and managed
31        by  a  public  housing agency. School is defined, for the
32        purposes of  this  Section,  as  any  public  or  private
33        elementary   or   secondary  school,  community  college,
34        college, or  university.  These  charges  and  all  other
                            -9-                LRB9010514RCpc
 1        charges  arising  out  of  the  same  incident  shall  be
 2        prosecuted under the Illinois Controlled Substances Act.
 3             (b)  If  before  trial  or  plea  an  information or
 4        indictment is filed  that  does  not  charge  an  offense
 5        specified  in  paragraph  (a) of this subsection (7), the
 6        State's Attorney may proceed  on  the  lesser  charge  or
 7        charges, but only under the other provisions of this Act,
 8        unless  before  trial  the  minor defendant knowingly and
 9        with advice of counsel waives, in  writing,  his  or  her
10        right  to  have the matter proceed in Juvenile Court.  If
11        before trial or plea  an  information  or  indictment  is
12        filed  that  includes  one  or  more charges specified in
13        paragraph (a)  of  this  subsection  (7)  and  additional
14        charges  that are not specified in that paragraph, all of
15        the charges arising out of the  same  incident  shall  be
16        prosecuted  under  the Illinois Controlled Substances Act
17        or the Criminal Code of 1961.
18             (c) (i)  If  after  trial  or  plea  the  minor   is
19             convicted of any offense covered by paragraph (a) of
20             this  subsection  (7), then, in sentencing the minor
21             the  court  shall  have   available   any   or   all
22             dispositions   prescribed  for  that  offense  under
23             Chapter V of the Unified Code of Corrections.
24                  (ii)  If after trial or plea the minor is  only
25             convicted of an offense not covered by paragraph (a)
26             of  this  subsection  (7),  the conviction shall not
27             invalidate the verdict or  the  prosecution  of  the
28             minor   under  the  criminal  laws  of  this  State;
29             however, unless the State requests a hearing for the
30             purpose of sentencing the minor under Chapter  V  of
31             the  Unified  Code  of  Corrections,  the court must
32             thereafter proceed under Sections 5-22 and  5-23  of
33             this  Act.   Should  the  State request a hearing it
34             must  do  so  by  written  motion  within  10   days
                            -10-               LRB9010514RCpc
 1             following  the entry of a finding or the return of a
 2             verdict.  Reasonable notice of the motion  shall  be
 3             served  upon  the  minor  or his counsel.  If such a
 4             motion is made by the State, the court shall conduct
 5             a hearing to determine  if  the  request  should  be
 6             granted.  In making its determination on the motion,
 7             the court shall consider among  other  matters:  (a)
 8             whether  there  is  evidence  that  the  offense was
 9             committed in an aggressive and premeditated  manner;
10             (b)  the  age of the minor; (c) the previous history
11             of the  minor;  (d)  whether  there  are  facilities
12             particularly  available to the Juvenile Court or the
13             Department of Corrections,  Juvenile  Division,  for
14             the  treatment  and rehabilitation of the minor; (e)
15             whether the best  interest  of  the  minor  and  the
16             security  of  the  public  require  sentencing under
17             Chapter V of the Unified Code  of  Corrections;  and
18             (f) whether the minor possessed a deadly weapon when
19             committing the offense.  The rules of evidence shall
20             be  the  same  as if at trial.  If after the hearing
21             the court finds that the minor should  be  sentenced
22             under  Chapter V of the Unified Code of Corrections,
23             then the court shall sentence the minor  accordingly
24             having  available  to  it any or all dispositions so
25             prescribed.
26        (8) (a)  The definition of delinquent minor under Section
27        5-3 of this Act shall not  apply  to  any  minor  who  is
28        charged  with  a  violation  of subsection (a) of Section
29        31-6 or Section 32-10 of the Criminal Code of  1961  when
30        the  minor  is  subject to prosecution under the Criminal
31        Code of 1961 as  a  result  of  the  application  of  the
32        provisions of paragraph (a) of subsection (3); subsection
33        (5); paragraph (a) of subsection (6); or paragraph (a) of
34        subsection  (7)   of this Section.  These charges and all
                            -11-               LRB9010514RCpc
 1        other charges arising out of the same incident  shall  be
 2        prosecuted under the Criminal Code of 1961.
 3             (b)  If  before  trial  or  plea  an  information or
 4        indictment is filed  that  does  not  charge  an  offense
 5        specified  in  paragraph  (a) of this subsection (8), the
 6        State's Attorney may proceed  on  the  lesser  charge  or
 7        charges,  but  only  in  Juvenile  Court  under the other
 8        provisions of this Act, unless  before  trial  the  minor
 9        defendant knowingly and with advice of counsel waives, in
10        writing,  his  or her right to have the matter proceed in
11        Juvenile Court.  If before trial or plea  an  information
12        or  indictment is filed that includes one or more charges
13        specified in paragraph (a) of  this  subsection  (8)  and
14        additional   charges  that  are  not  specified  in  that
15        paragraph, all of the charges arising  out  of  the  same
16        incident  shall  be prosecuted under the Criminal Code of
17        1961.
18             (c)  If after  trial  or  plea  the  minor  is  only
19        convicted  of  an offense not covered by paragraph (a) of
20        this subsection (8), the conviction shall not  invalidate
21        the  verdict  or  the  prosecution of the minor under the
22        criminal laws of this  State;  however,  the  court  must
23        thereafter  proceed  under Sections 5-22 and 5-23 of this
24        Act.  In all other circumstances, in sentencing the court
25        shall have available any or all  dispositions  prescribed
26        for  that  offense under Chapter V of the Unified Code of
27        Corrections.
28             (9) (a)  The definition of  delinquent  minor  under
29        Section  5-3 of this Act shall not apply to any minor who
30        at the time of an offense was at least 13  years  of  age
31        and  who  is  charged  with first degree murder committed
32        during the course of either  aggravated  criminal  sexual
33        assault,   criminal   sexual   assault,   or   aggravated
34        kidnaping.  However, this subsection (9) does not include
                            -12-               LRB9010514RCpc
 1        a  minor  charged  with   first   degree   murder   based
 2        exclusively  upon  the  accountability  provisions of the
 3        Criminal Code of 1961.
 4             (b)  If before  trial  or  plea  an  information  or
 5        indictment  is  filed  which does not charge first degree
 6        murder committed during the course of aggravated criminal
 7        sexual assault, criminal sexual  assault,  or  aggravated
 8        kidnaping, the State's Attorney may proceed on the lesser
 9        charge  or  charges, but only in Juvenile Court under the
10        other provisions of this Act,  unless  before  trial  the
11        minor  defendant  knowingly  and  with  advice of counsel
12        waives, in writing, his or her right to have  the  matter
13        proceed  in  Juvenile  Court.  If before trial or plea an
14        information or indictment is filed  that  includes  first
15        degree  murder  committed during the course of aggravated
16        criminal sexual  assault,  criminal  sexual  assault,  or
17        aggravated  kidnaping, as well as additional charges that
18        are not specified in that paragraph, all of  the  charges
19        arising  out  of  the  same  incident shall be prosecuted
20        under the Criminal Code of 1961.
21             (c)(i)  If  after  trial  or  plea  the   minor   is
22        convicted  of  first  degree  murder committed during the
23        course of aggravated criminal  sexual  assault,  criminal
24        sexual  assault, or aggravated kidnaping, the court shall
25        have available any or  all  dispositions  prescribed  for
26        that  offense  under  Chapter  V  of  the Unified Code of
27        Corrections.
28             (ii)  If the minor was not yet 15 years  of  age  at
29        the  time  of the offense, and if after trial or plea the
30        minor is only convicted of an offense  other  than  first
31        degree  murder  committed  during  the  course  of either
32        aggravated  criminal  sexual  assault,  criminal   sexual
33        assault,  or  aggravated  kidnaping, the conviction shall
34        not invalidate the verdict  or  the  prosecution  of  the
                            -13-               LRB9010514RCpc
 1        minor  under  the  criminal  laws  of the State; however,
 2        unless the State requests a hearing for  the  purpose  of
 3        sentencing  the minor under Chapter V of the Unified Code
 4        of Corrections, the Court  must  proceed  under  Sections
 5        5-22  and  5-23  of  this Act. Should the State request a
 6        hearing it must do so by written motion  within  10  days
 7        following  the  entry  of  a  finding  or the return of a
 8        verdict.  Reasonable notice of the motion shall be served
 9        upon the minor or his or her counsel.  If the  motion  is
10        made  by  the State, the court shall conduct a hearing to
11        determine if the request should be  granted.   In  making
12        its determination on the motion, the court shall consider
13        among  other  matters: (a) whether there is evidence that
14        the  offense  was  committed   in   an   aggressive   and
15        premeditated  manner;  (b)  the age of the minor; (c) the
16        previous history of the  minor;  (d)  whether  there  are
17        facilities  particularly  available to the Juvenile Court
18        or the Department of Corrections, Juvenile Division,  for
19        the  treatment  and  rehabilitation  of  the  minor;  (e)
20        whether  the  best interest of the minor and the security
21        of the public require sentencing under Chapter V  of  the
22        Unified  Code  of  Corrections; and (f) whether the minor
23        possessed a deadly weapon when  committing  the  offense.
24        The  rules  of evidence shall be the same as if at trial.
25        If after the hearing  the  court  finds  that  the  minor
26        should  be  sentenced under Chapter V of the Unified Code
27        of Corrections, then the court shall sentence  the  minor
28        accordingly   having   available   to   it   any  or  all
29        dispositions so prescribed.
30             (iii)  If the minor was at least 15 years of age  at
31        the  time  of  the offense and if after trial or plea the
32        minor is only convicted of first degree murder but not of
33        aggravated  criminal  sexual  assault,  criminal   sexual
34        assault,  or  aggravated  kidnaping, the court shall have
                            -14-               LRB9010514RCpc
 1        available any or all  dispositions  prescribed  for  that
 2        offense   under   Chapter   V  of  the  Unified  Code  of
 3        Corrections.
 4             (iv)  If the minor was at least 15 years of  age  at
 5        the  time  of  the offense and if after trial or plea the
 6        minor is only convicted  of  aggravated  criminal  sexual
 7        assault,   criminal   sexual   assault,   or   aggravated
 8        kidnaping,  but  not  of  first  degree murder, the court
 9        shall have available any or all  dispositions  prescribed
10        for  that  offense under Chapter V of the Unified Code of
11        Corrections.
12    (Source: P.A. 88-239; 88-467; 88-670, eff.  12-2-94;  88-680,
13    eff.  1-1-95;  89-235,  eff.  8-4-95;  89-362,  eff.  1-1-96;
14    89-428,  eff.  12-13-95;  89-462,  eff. 5-29-96; 89-498, eff.
15    6-27-96.)
16        Section 10.  The Juvenile Court Act of 1987  is  amended,
17    if  and  only if Senate Bill 363 of the 90th General Assembly
18    becomes law, by changing Section 5-805 as follows:
19        (705 ILCS 405/5-805)
20        Sec. 5-805.  Transfer of jurisdiction.
21        (1)  Mandatory transfers.
22             (a)  If a petition alleges commission by a minor  15
23        years  of  age  or  older  of  an  act that constitutes a
24        forcible felony under the laws of this State,  and  if  a
25        motion  by  the  State's  Attorney to prosecute the minor
26        under the criminal  laws  of  Illinois  for  the  alleged
27        forcible felony alleges that (i) the minor has previously
28        been   adjudicated   delinquent   or   found  guilty  for
29        commission of an act that constitutes a felony under  the
30        laws  of  this  State or any other state and (ii) the act
31        that constitutes the offense was committed in furtherance
32        of criminal activity by an organized gang,  the  Juvenile
                            -15-               LRB9010514RCpc
 1        Judge assigned to hear and determine those motions shall,
 2        upon  determining  that there is probable cause that both
 3        allegations  are  true,   enter   an   order   permitting
 4        prosecution under the criminal laws of Illinois.
 5             (b)  If  a petition alleges commission by a minor 15
 6        years of age or older of an act that constitutes a felony
 7        under the laws of this  State,  and  if  a  motion  by  a
 8        State's   Attorney  to  prosecute  the  minor  under  the
 9        criminal laws of Illinois for the alleged felony  alleges
10        that  (i)  the  minor  has  previously  been  adjudicated
11        delinquent  or found guilty for commission of an act that
12        constitutes a forcible felony  under  the  laws  of  this
13        State   or   any  other  state  and  (ii)  the  act  that
14        constitutes the offense was committed in  furtherance  of
15        criminal  activities  by  an organized gang, the Juvenile
16        Judge assigned to hear and determine those motions shall,
17        upon determining that there is probable cause  that  both
18        allegations   are   true,   enter   an  order  permitting
19        prosecution under the criminal laws of Illinois.
20             (c)  If a petition alleges commission by a minor  15
21        years  of age or older of: (i) an act that constitutes an
22        offense enumerated in the presumptive transfer provisions
23        of subsection (2); and (ii) the minor has previously been
24        adjudicated delinquent or  found  guilty  of  a  forcible
25        felony,   the  Juvenile  Judge  designated  to  hear  and
26        determine those  motions  shall,  upon  determining  that
27        there  is  probable cause that both allegations are true,
28        enter an order permitting prosecution under the  criminal
29        laws of Illinois.
30        (2)  Presumptive transfer.
31             (a)  If  the  State's  Attorney files a petition, at
32        any time prior to commencement of the minor's  trial,  to
33        permit  prosecution  under  the  criminal  laws  and  the
34        petition  alleges  the  commission by a minor 15 years of
                            -16-               LRB9010514RCpc
 1        age or older of: (i) a Class X felony  other  than  armed
 2        violence;  (ii) aggravated discharge of a firearm;  (iii)
 3        armed violence with a firearm when the predicate  offense
 4        is a Class 1 or Class 2 felony and the State's Attorney's
 5        motion  to  transfer  the  case  alleges that the offense
 6        committed is in furtherance of the criminal activities of
 7        an organized gang; (iv) armed  violence  with  a  firearm
 8        when the predicate offense is a violation of the Illinois
 9        Controlled  Substances Act or a violation of the Cannabis
10        Control Act; (v) armed violence when the weapon  involved
11        was a machine gun or other weapon described in subsection
12        (a)(7) of Section 24-1 of the Criminal Code of 1961, and,
13        if  the  juvenile  judge  assigned  to hear and determine
14        motions  to  transfer  a  case  for  prosecution  in  the
15        criminal court determines that there is probable cause to
16        believe that the allegations in the petition  and  motion
17        are  true,  there  is  a  rebuttable presumption that the
18        minor is not a fit and proper subject to  be  dealt  with
19        under the Juvenile Justice Reform Provisions of 1998, and
20        that,  except  as  provided  in  paragraph  (b), the case
21        should be transferred to the criminal court.
22             (b)  The  judge  shall  enter  an  order  permitting
23        prosecution under the criminal laws  of  Illinois  unless
24        the  judge  makes a finding based on clear and convincing
25        evidence that the minor would be amenable  to  the  care,
26        treatment,  and  training  programs available through the
27        facilities of the juvenile court based on  an  evaluation
28        of the following:
29             (i)  The seriousness of the alleged offense;
30             (ii)  The minor's history of delinquency;
31             (iii)  The age of the minor;
32             (iv)    The  culpability  of the minor in committing
33        the alleged offense;
34             (v)  Whether  the  offense  was  committed   in   an
                            -17-               LRB9010514RCpc
 1        aggressive or premeditated manner;
 2             (vi)  Whether  the  minor used or possessed a deadly
 3        weapon when committing the alleged offense;
 4             (vii)  The minor's history  of  services,  including
 5        the  minor's  willingness  to participate meaningfully in
 6        available services;
 7             (viii)  The adequacy of the punishment  or  services
 8        available in the juvenile justice system.
 9        In  considering  these  factors,  the  court  shall  give
10    greater  weight to the seriousness of the alleged offense and
11    the minor's prior record of delinquency  than  to  the  other
12    factors listed in this subsection.
13        (3)  Discretionary transfer.
14             (a)  If  a petition alleges commission by a minor 13
15        years of age or over of an act that constitutes  a  crime
16        under  the  laws  of  this  State  and,  on motion of the
17        State's Attorney to permit prosecution of the minor under
18        the criminal laws, a Juvenile Judge assigned by the Chief
19        Judge of the Circuit to hear and determine those motions,
20        after hearing but before commencement of the trial, finds
21        that  there  is  probable  cause  to  believe  that   the
22        allegations  in the motion are true and that it is not in
23        the best interests of the public to  proceed  under  this
24        Act,  the court may enter an order permitting prosecution
25        under the criminal laws.
26             (b)  In making its determination on  the  motion  to
27        permit  prosecution  under  the  criminal laws, the court
28        shall consider:
29             (i)  The seriousness of the alleged offense;
30             (ii)  The minor's history of delinquency;
31             (iii)  The age of the minor;
32             (iv)  The culpability of the minor in committing the
33        alleged offense;
34             (v)  Whether  the  offense  was  committed   in   an
                            -18-               LRB9010514RCpc
 1        aggressive or premeditated manner;
 2             (vi)  Whether  the  minor used or possessed a deadly
 3        weapon when committing the alleged offense;
 4             (vii)  The minor's history  of  services,  including
 5        the  minor's  willingness  to participate meaningfully in
 6        available services;
 7             (viii)  The adequacy of the punishment  or  services
 8        available in the juvenile justice system.
 9        In  considering  these  factors,  the  court  shall  give
10    greater  weight to the seriousness of the alleged offense and
11    the minor's prior record of delinquency  than  to  the  other
12    factors listed in this subsection.
13        (3.4)  If  a  petition  alleges  commission by a minor 13
14    years of age or older of an act  that  constitutes  a  felony
15    under  the  laws  of this State, and if a motion by a State's
16    Attorney to prosecute the minor under the  criminal  laws  of
17    Illinois  for  the  alleged felony alleges that the minor has
18    previously been adjudicated delinquent for  commission  of  2
19    acts that constitute felonies under the laws of this State or
20    any  other  state,  the Juvenile Judge designated to hear and
21    determine those motions shall, upon determining that there is
22    probable cause that the allegation is true,  enter  an  order
23    permitting prosecution under the criminal laws of Illinois.
24        (4)  The  rules of evidence for this hearing shall be the
25    same as under Section 5-705 of this Act.   A  minor  must  be
26    represented  in  court  by  counsel before the hearing may be
27    commenced.
28        (5)  If criminal proceedings are instituted, the petition
29    for adjudication of wardship shall be  dismissed  insofar  as
30    the act or acts involved in the criminal proceedings.  Taking
31    of  evidence  in  a  trial  on  petition  for adjudication of
32    wardship is a bar to  criminal  proceedings  based  upon  the
33    conduct alleged in the petition.
34    (Source: 90SB0363enr)

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