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90_HB3735
730 ILCS 5/5-5-3 from Ch. 38, par. 1005-5-3
Amends the Unified Code of Corrections. Provides that a
defendant who is a member of an organized gang and who
commits a felony shall not receive probation, conditional
discharge, or periodic imprisonment. Effective immediately.
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LRB9010518RCks
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 (J-5) A felony committed by a member of an
3 organized gang.
4 Before July 1, 1994, for the purposes of this
5 paragraph, "organized gang" means an association of
6 5 or more persons, with an established hierarchy,
7 that encourages members of the association to
8 perpetrate crimes or provides support to the members
9 of the association who do commit crimes.
10 Beginning July 1, 1994, for the purposes of
11 paragraphs (J) and (J-5) this paragraph, "organized
12 gang" has the meaning ascribed to it in Section 10
13 of the Illinois Streetgang Terrorism Omnibus
14 Prevention Act.
15 (K) Vehicular hijacking.
16 (L) A second or subsequent conviction for the
17 offense of hate crime when the underlying offense
18 upon which the hate crime is based is felony
19 aggravated assault or felony mob action.
20 (M) A second or subsequent conviction for the
21 offense of institutional vandalism if the damage to
22 the property exceeds $300.
23 (N) A Class 3 felony violation of paragraph
24 (1) of subsection (a) of Section 2 of the Firearm
25 Owners Identification Card Act.
26 (O) A violation of Section 12-6.1 of the
27 Criminal Code of 1961.
28 (P) A violation of paragraph (1), (2), (3),
29 (4), (5), or (7) of subsection (a) of Section
30 11-20.1 of the Criminal Code of 1961.
31 (3) A minimum term of imprisonment of not less than
32 48 consecutive hours or 100 hours of community service as
33 may be determined by the court shall be imposed for a
34 second or subsequent violation committed within 5 years
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1 of a previous violation of Section 11-501 of the Illinois
2 Vehicle Code or a similar provision of a local ordinance.
3 (4) A minimum term of imprisonment of not less than
4 7 consecutive days or 30 days of community service shall
5 be imposed for a violation of paragraph (c) of Section
6 6-303 of the Illinois Vehicle Code.
7 (4.1) A minimum term of 30 consecutive days of
8 imprisonment, 40 days of 24 hour periodic imprisonment or
9 720 hours of community service, as may be determined by
10 the court, shall be imposed for a violation of Section
11 11-501 of the Illinois Vehicle Code during a period in
12 which the defendant's driving privileges are revoked or
13 suspended, where the revocation or suspension was for a
14 violation of Section 11-501 or Section 11-501.1 of that
15 Code.
16 (5) The court may sentence an offender convicted of
17 a business offense or a petty offense or a corporation or
18 unincorporated association convicted of any offense to:
19 (A) a period of conditional discharge;
20 (B) a fine;
21 (C) make restitution to the victim under
22 Section 5-5-6 of this Code.
23 (6) In no case shall an offender be eligible for a
24 disposition of probation or conditional discharge for a
25 Class 1 felony committed while he was serving a term of
26 probation or conditional discharge for a felony.
27 (7) When a defendant is adjudged a habitual
28 criminal under Article 33B of the Criminal Code of 1961,
29 the court shall sentence the defendant to a term of
30 natural life imprisonment.
31 (8) When a defendant, over the age of 21 years, is
32 convicted of a Class 1 or Class 2 felony, after having
33 twice been convicted of any Class 2 or greater Class
34 felonies in Illinois, and such charges are separately
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1 brought and tried and arise out of different series of
2 acts, such defendant shall be sentenced as a Class X
3 offender. This paragraph shall not apply unless (1) the
4 first felony was committed after the effective date of
5 this amendatory Act of 1977; and (2) the second felony
6 was committed after conviction on the first; and (3) the
7 third felony was committed after conviction on the
8 second.
9 (9) A defendant convicted of a second or subsequent
10 offense of ritualized abuse of a child may be sentenced
11 to a term of natural life imprisonment.
12 (10) Beginning July 1, 1994, unless sentencing
13 under Section 33B-1 is applicable, a term of imprisonment
14 of not less than 15 years nor more than 50 years shall be
15 imposed on a defendant who violates Section 33A-2 of the
16 Criminal Code of 1961 with a firearm, when that person
17 has been convicted in any state or federal court of 3 or
18 more of the following offenses: treason, first degree
19 murder, second degree murder, aggravated criminal sexual
20 assault, criminal sexual assault, robbery, burglary,
21 arson, kidnaping, aggravated battery resulting in great
22 bodily harm or permanent disability or disfigurement, or
23 a violation of Section 401(a) of the Illinois Controlled
24 Substances Act, when the third offense was committed
25 after conviction on the second, the second offense was
26 committed after conviction on the first, and the
27 violation of Section 33A-2 of the Criminal Code of 1961
28 was committed after conviction on the third.
29 (11) Beginning July 1, 1994, a term of imprisonment
30 of not less than 10 years and not more than 30 years
31 shall be imposed on a defendant who violates Section
32 33A-2 with a Category I weapon where the offense was
33 committed in any school, or any conveyance owned, leased,
34 or contracted by a school to transport students to or
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1 from school or a school related activity, on the real
2 property comprising any school or public park, and where
3 the offense was related to the activities of an organized
4 gang. For the purposes of this paragraph (11),
5 "organized gang" has the meaning ascribed to it in
6 Section 10 of the Illinois Streetgang Terrorism Omnibus
7 Prevention Act.
8 (d) In any case in which a sentence originally imposed
9 is vacated, the case shall be remanded to the trial court.
10 The trial court shall hold a hearing under Section 5-4-1 of
11 the Unified Code of Corrections which may include evidence of
12 the defendant's life, moral character and occupation during
13 the time since the original sentence was passed. The trial
14 court shall then impose sentence upon the defendant. The
15 trial court may impose any sentence which could have been
16 imposed at the original trial subject to Section 5-5-4 of the
17 Unified Code of Corrections.
18 (e) In cases where prosecution for criminal sexual
19 assault or aggravated criminal sexual abuse under Section
20 12-13 or 12-16 of the Criminal Code of 1961 results in
21 conviction of a defendant who was a family member of the
22 victim at the time of the commission of the offense, the
23 court shall consider the safety and welfare of the victim and
24 may impose a sentence of probation only where:
25 (1) the court finds (A) or (B) or both are
26 appropriate:
27 (A) the defendant is willing to undergo a
28 court approved counseling program for a minimum
29 duration of 2 years; or
30 (B) the defendant is willing to participate in
31 a court approved plan including but not limited to
32 the defendant's:
33 (i) removal from the household;
34 (ii) restricted contact with the victim;
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1 (iii) continued financial support of the
2 family;
3 (iv) restitution for harm done to the
4 victim; and
5 (v) compliance with any other measures
6 that the court may deem appropriate; and
7 (2) the court orders the defendant to pay for the
8 victim's counseling services, to the extent that the
9 court finds, after considering the defendant's income and
10 assets, that the defendant is financially capable of
11 paying for such services, if the victim was under 18
12 years of age at the time the offense was committed and
13 requires counseling as a result of the offense.
14 Probation may be revoked or modified pursuant to Section
15 5-6-4; except where the court determines at the hearing that
16 the defendant violated a condition of his or her probation
17 restricting contact with the victim or other family members
18 or commits another offense with the victim or other family
19 members, the court shall revoke the defendant's probation and
20 impose a term of imprisonment.
21 For the purposes of this Section, "family member" and
22 "victim" shall have the meanings ascribed to them in Section
23 12-12 of the Criminal Code of 1961.
24 (f) This Article shall not deprive a court in other
25 proceedings to order a forfeiture of property, to suspend or
26 cancel a license, to remove a person from office, or to
27 impose any other civil penalty.
28 (g) Whenever a defendant is convicted of an offense
29 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
30 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
31 12-15 or 12-16 of the Criminal Code of 1961, the defendant
32 shall undergo medical testing to determine whether the
33 defendant has any sexually transmissible disease, including a
34 test for infection with human immunodeficiency virus (HIV) or
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1 any other identified causative agent of acquired
2 immunodeficiency syndrome (AIDS). Any such medical test
3 shall be performed only by appropriately licensed medical
4 practitioners and may include an analysis of any bodily
5 fluids as well as an examination of the defendant's person.
6 Except as otherwise provided by law, the results of such test
7 shall be kept strictly confidential by all medical personnel
8 involved in the testing and must be personally delivered in a
9 sealed envelope to the judge of the court in which the
10 conviction was entered for the judge's inspection in camera.
11 Acting in accordance with the best interests of the victim
12 and the public, the judge shall have the discretion to
13 determine to whom, if anyone, the results of the testing may
14 be revealed. The court shall notify the defendant of the test
15 results. The court shall also notify the victim if requested
16 by the victim, and if the victim is under the age of 15 and
17 if requested by the victim's parents or legal guardian, the
18 court shall notify the victim's parents or legal guardian of
19 the test results. The court shall provide information on the
20 availability of HIV testing and counseling at Department of
21 Public Health facilities to all parties to whom the results
22 of the testing are revealed and shall direct the State's
23 Attorney to provide the information to the victim when
24 possible. A State's Attorney may petition the court to obtain
25 the results of any HIV test administered under this Section,
26 and the court shall grant the disclosure if the State's
27 Attorney shows it is relevant in order to prosecute a charge
28 of criminal transmission of HIV under Section 12-16.2 of the
29 Criminal Code of 1961 against the defendant. The court shall
30 order that the cost of any such test shall be paid by the
31 county and may be taxed as costs against the convicted
32 defendant.
33 (g-5) When an inmate is tested for an airborne
34 communicable disease, as determined by the Illinois
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1 Department of Public Health including but not limited to
2 tuberculosis, the results of the test shall be personally
3 delivered by the warden or his or her designee in a sealed
4 envelope to the judge of the court in which the inmate must
5 appear for the judge's inspection in camera if requested by
6 the judge. Acting in accordance with the best interests of
7 those in the courtroom, the judge shall have the discretion
8 to determine what if any precautions need to be taken to
9 prevent transmission of the disease in the courtroom.
10 (h) Whenever a defendant is convicted of an offense
11 under Section 1 or 2 of the Hypodermic Syringes and Needles
12 Act, the defendant shall undergo medical testing to determine
13 whether the defendant has been exposed to human
14 immunodeficiency virus (HIV) or any other identified
15 causative agent of acquired immunodeficiency syndrome (AIDS).
16 Except as otherwise provided by law, the results of such test
17 shall be kept strictly confidential by all medical personnel
18 involved in the testing and must be personally delivered in a
19 sealed envelope to the judge of the court in which the
20 conviction was entered for the judge's inspection in camera.
21 Acting in accordance with the best interests of the public,
22 the judge shall have the discretion to determine to whom, if
23 anyone, the results of the testing may be revealed. The court
24 shall notify the defendant of a positive test showing an
25 infection with the human immunodeficiency virus (HIV). The
26 court shall provide information on the availability of HIV
27 testing and counseling at Department of Public Health
28 facilities to all parties to whom the results of the testing
29 are revealed and shall direct the State's Attorney to provide
30 the information to the victim when possible. A State's
31 Attorney may petition the court to obtain the results of any
32 HIV test administered under this Section, and the court
33 shall grant the disclosure if the State's Attorney shows it
34 is relevant in order to prosecute a charge of criminal
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1 transmission of HIV under Section 12-16.2 of the Criminal
2 Code of 1961 against the defendant. The court shall order
3 that the cost of any such test shall be paid by the county
4 and may be taxed as costs against the convicted defendant.
5 (i) All fines and penalties imposed under this Section
6 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
7 Vehicle Code, or a similar provision of a local ordinance,
8 and any violation of the Child Passenger Protection Act, or a
9 similar provision of a local ordinance, shall be collected
10 and disbursed by the circuit clerk as provided under Section
11 27.5 of the Clerks of Courts Act.
12 (j) In cases when prosecution for any violation of
13 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
14 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
15 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
16 12-16 of the Criminal Code of 1961, any violation of the
17 Illinois Controlled Substances Act, or any violation of the
18 Cannabis Control Act results in conviction, a disposition of
19 court supervision, or an order of probation granted under
20 Section 10 of the Cannabis Control Act or Section 410 of the
21 Illinois Controlled Substance Act of a defendant, the court
22 shall determine whether the defendant is employed by a
23 facility or center as defined under the Child Care Act of
24 1969, a public or private elementary or secondary school, or
25 otherwise works with children under 18 years of age on a
26 daily basis. When a defendant is so employed, the court
27 shall order the Clerk of the Court to send a copy of the
28 judgment of conviction or order of supervision or probation
29 to the defendant's employer by certified mail. If the
30 employer of the defendant is a school, the Clerk of the Court
31 shall direct the mailing of a copy of the judgment of
32 conviction or order of supervision or probation to the
33 appropriate regional superintendent of schools. The regional
34 superintendent of schools shall notify the State Board of
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1 Education of any notification under this subsection.
2 (j-5) A defendant at least 17 years of age who is
3 convicted of a felony and who has not been previously
4 convicted of a misdemeanor or felony and who is sentenced to
5 a term of imprisonment in the Illinois Department of
6 Corrections shall as a condition of his or her sentence be
7 required by the court to attend educational courses designed
8 to prepare the defendant for a high school diploma and to
9 work toward a high school diploma or to work toward passing
10 the high school level Test of General Educational Development
11 (GED) or to work toward completing a vocational training
12 program offered by the Department of Corrections. If a
13 defendant fails to complete the educational training required
14 by his or her sentence during the term of incarceration, the
15 Prisoner Review Board shall, as a condition of mandatory
16 supervised release, require the defendant, at his or her own
17 expense, to pursue a course of study toward a high school
18 diploma or passage of the GED test. The Prisoner Review
19 Board shall revoke the mandatory supervised release of a
20 defendant who wilfully fails to comply with this subsection
21 (j-5) upon his or her release from confinement in a penal
22 institution while serving a mandatory supervised release
23 term; however, the inability of the defendant after making a
24 good faith effort to obtain financial aid or pay for the
25 educational training shall not be deemed a wilful failure to
26 comply. The Prisoner Review Board shall recommit the
27 defendant whose mandatory supervised release term has been
28 revoked under this subsection (j-5) as provided in Section
29 3-3-9. This subsection (j-5) does not apply to a defendant
30 who has a high school diploma or has successfully passed the
31 GED test. This subsection (j-5) does not apply to a defendant
32 who is determined by the court to be developmentally disabled
33 or otherwise mentally incapable of completing the educational
34 or vocational program.
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1 (k) A court may not impose a sentence or disposition for
2 a felony or misdemeanor that requires the defendant to be
3 implanted or injected with or to use any form of birth
4 control.
5 (l)(A) Except as provided in paragraph (C) of subsection
6 (l), whenever a defendant, who is an alien as defined by the
7 Immigration and Nationality Act, is convicted of any felony
8 or misdemeanor offense, the court after sentencing the
9 defendant may, upon motion of the State's Attorney, hold
10 sentence in abeyance and remand the defendant to the custody
11 of the Attorney General of the United States or his or her
12 designated agent to be deported when:
13 (1) a final order of deportation has been issued
14 against the defendant pursuant to proceedings under the
15 Immigration and Nationality Act, and
16 (2) the deportation of the defendant would not
17 deprecate the seriousness of the defendant's conduct and
18 would not be inconsistent with the ends of justice.
19 Otherwise, the defendant shall be sentenced as provided
20 in this Chapter V.
21 (B) If the defendant has already been sentenced for a
22 felony or misdemeanor offense, or has been placed on
23 probation under Section 10 of the Cannabis Control Act or
24 Section 410 of the Illinois Controlled Substances Act, the
25 court may, upon motion of the State's Attorney to suspend the
26 sentence imposed, commit the defendant to the custody of the
27 Attorney General of the United States or his or her
28 designated agent when:
29 (1) a final order of deportation has been issued
30 against the defendant pursuant to proceedings under the
31 Immigration and Nationality Act, and
32 (2) the deportation of the defendant would not
33 deprecate the seriousness of the defendant's conduct and
34 would not be inconsistent with the ends of justice.
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1 (C) This subsection (l) does not apply to offenders who
2 are subject to the provisions of paragraph (2) of subsection
3 (a) of Section 3-6-3.
4 (D) Upon motion of the State's Attorney, if a defendant
5 sentenced under this Section returns to the jurisdiction of
6 the United States, the defendant shall be recommitted to the
7 custody of the county from which he or she was sentenced.
8 Thereafter, the defendant shall be brought before the
9 sentencing court, which may impose any sentence that was
10 available under Section 5-5-3 at the time of initial
11 sentencing. In addition, the defendant shall not be eligible
12 for additional good conduct credit for meritorious service as
13 provided under Section 3-6-6.
14 (Source: P.A. 89-8, eff. 3-21-95; 89-314, eff. 1-1-96;
15 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-477, eff.
16 6-18-96; 89-507, eff. 7-1-97; 89-545, eff. 7-25-96; 89-587,
17 eff. 7-31-96; 89-627, eff. 1-1-97; 89-688, eff. 6-1-97;
18 90-14, eff. 7-1-97; 90-68, eff. 7-8-97.)
19 Section 99. Effective date. This Act takes effect upon
20 becoming law.