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91_HB2109eng HB2109 Engrossed LRB9104666RCks 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 HB2109 Engrossed -2- LRB9104666RCks 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. HB2109 Engrossed -3- LRB9104666RCks 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 HB2109 Engrossed -4- LRB9104666RCks 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 (Q) A violation of Section 20-1.2 of the 29 Criminal Code of 1961. 30 (R)(Q)A violation of Section 24-3A of the 31 Criminal Code of 1961. 32 (3) A minimum term of imprisonment of not less than 33 48 consecutive hours or 100 hours of community service as 34 may be determined by the court shall be imposed for a HB2109 Engrossed -5- LRB9104666RCks 1 second or subsequent violation committed within 5 years 2 of a previous violation of Section 11-501 of the Illinois 3 Vehicle Code or a similar provision of a local ordinance. 4 (4) A minimum term of imprisonment of not less than 5 7 consecutive days or 30 days of community service shall 6 be imposed for a violation of paragraph (c) of Section 7 6-303 of the Illinois Vehicle Code. 8 (4.1) A minimum term of 30 consecutive days of 9 imprisonment, 40 days of 24 hour periodic imprisonment or 10 720 hours of community service, as may be determined by 11 the court, shall be imposed for a violation of Section 12 11-501 of the Illinois Vehicle Code during a period in 13 which the defendant's driving privileges are revoked or 14 suspended, where the revocation or suspension was for a 15 violation of Section 11-501 or Section 11-501.1 of that 16 Code. 17 (5) The court may sentence an offender convicted of 18 a business offense or a petty offense or a corporation or 19 unincorporated association convicted of any offense to: 20 (A) a period of conditional discharge; 21 (B) a fine; 22 (C) make restitution to the victim under 23 Section 5-5-6 of this Code. 24 (6) In no case shall an offender be eligible for a 25 disposition of probation or conditional discharge for a 26 Class 1 felony committed while he was serving a term of 27 probation or conditional discharge for a felony. 28 (7) When a defendant is adjudged a habitual 29 criminal under Article 33B of the Criminal Code of 1961, 30 the court shall sentence the defendant to a term of 31 natural life imprisonment. 32 (8) When a defendant, over the age of 21 years, is 33 convicted of a Class 1 or Class 2 felony, after having 34 twice been convicted of any Class 2 or greater Class HB2109 Engrossed -6- LRB9104666RCks 1 felonies in Illinois or of offenses in another state that 2 contain the same elements as offenses classified in 3 Illinois as Class 2 or greater Class felonies, and such 4 charges are separately brought and tried and arise out of 5 different series of acts, such defendant shall be 6 sentenced as a Class X offender. This paragraph shall not 7 apply unless (1) the first felony was committed after the 8 effective date of this amendatory Act of 1977; and (2) 9 the second felony was committed after conviction on the 10 first; and (3) the third felony was committed after 11 conviction on the second. 12 (9) A defendant convicted of a second or subsequent 13 offense of ritualized abuse of a child may be sentenced 14 to a term of natural life imprisonment. 15 (10) Beginning July 1, 1994, unless sentencing 16 under Section 33B-1 is applicable, a term of imprisonment 17 of not less than 15 years nor more than 50 years shall be 18 imposed on a defendant who violates Section 33A-2 of the 19 Criminal Code of 1961 with a firearm, when that person 20 has been convicted in any state or federal court of 3 or 21 more of the following offenses: treason, first degree 22 murder, second degree murder, aggravated criminal sexual 23 assault, criminal sexual assault, robbery, burglary, 24 arson, kidnaping, aggravated battery resulting in great 25 bodily harm or permanent disability or disfigurement, or 26 a violation of Section 401(a) of the Illinois Controlled 27 Substances Act, when the third offense was committed 28 after conviction on the second, the second offense was 29 committed after conviction on the first, and the 30 violation of Section 33A-2 of the Criminal Code of 1961 31 was committed after conviction on the third. 32 (11) Beginning July 1, 1994, a term of imprisonment 33 of not less than 10 years and not more than 30 years 34 shall be imposed on a defendant who violates Section HB2109 Engrossed -7- LRB9104666RCks 1 33A-2 with a Category I weapon where the offense was 2 committed in any school, or any conveyance owned, leased, 3 or contracted by a school to transport students to or 4 from school or a school related activity, on the real 5 property comprising any school or public park, and where 6 the offense was related to the activities of an organized 7 gang. For the purposes of this paragraph (11), 8 "organized gang" has the meaning ascribed to it in 9 Section 10 of the Illinois Streetgang Terrorism Omnibus 10 Prevention Act. 11 (d) In any case in which a sentence originally imposed 12 is vacated, the case shall be remanded to the trial court. 13 The trial court shall hold a hearing under Section 5-4-1 of 14 the Unified Code of Corrections which may include evidence of 15 the defendant's life, moral character and occupation during 16 the time since the original sentence was passed. The trial 17 court shall then impose sentence upon the defendant. The 18 trial court may impose any sentence which could have been 19 imposed at the original trial subject to Section 5-5-4 of the 20 Unified Code of Corrections. 21 (e) In cases where prosecution for criminal sexual 22 assault or aggravated criminal sexual abuse under Section 23 12-13 or 12-16 of the Criminal Code of 1961 results in 24 conviction of a defendant who was a family member of the 25 victim at the time of the commission of the offense, the 26 court shall consider the safety and welfare of the victim and 27 may impose a sentence of probation only where: 28 (1) the court finds (A) or (B) or both are 29 appropriate: 30 (A) the defendant is willing to undergo a 31 court approved counseling program for a minimum 32 duration of 2 years; or 33 (B) the defendant is willing to participate in 34 a court approved plan including but not limited to HB2109 Engrossed -8- LRB9104666RCks 1 the defendant's: 2 (i) removal from the household; 3 (ii) restricted contact with the victim; 4 (iii) continued financial support of the 5 family; 6 (iv) restitution for harm done to the 7 victim; and 8 (v) compliance with any other measures 9 that the court may deem appropriate; and 10 (2) the court orders the defendant to pay for the 11 victim's counseling services, to the extent that the 12 court finds, after considering the defendant's income and 13 assets, that the defendant is financially capable of 14 paying for such services, if the victim was under 18 15 years of age at the time the offense was committed and 16 requires counseling as a result of the offense. 17 Probation may be revoked or modified pursuant to Section 18 5-6-4; except where the court determines at the hearing that 19 the defendant violated a condition of his or her probation 20 restricting contact with the victim or other family members 21 or commits another offense with the victim or other family 22 members, the court shall revoke the defendant's probation and 23 impose a term of imprisonment. 24 For the purposes of this Section, "family member" and 25 "victim" shall have the meanings ascribed to them in Section 26 12-12 of the Criminal Code of 1961. 27 (f) This Article shall not deprive a court in other 28 proceedings to order a forfeiture of property, to suspend or 29 cancel a license, to remove a person from office, or to 30 impose any other civil penalty. 31 (g) Whenever a defendant is convicted of an offense 32 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 33 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1, 34 12-15 or 12-16 of the Criminal Code of 1961, the defendant HB2109 Engrossed -9- LRB9104666RCks 1 shall undergo medical testing to determine whether the 2 defendant has any sexually transmissible disease, including a 3 test for infection with human immunodeficiency virus (HIV) or 4 any other identified causative agent of acquired 5 immunodeficiency syndrome (AIDS). Any such medical test 6 shall be performed only by appropriately licensed medical 7 practitioners and may include an analysis of any bodily 8 fluids as well as an examination of the defendant's person. 9 Except as otherwise provided by law, the results of such test 10 shall be kept strictly confidential by all medical personnel 11 involved in the testing and must be personally delivered in a 12 sealed envelope to the judge of the court in which the 13 conviction was entered for the judge's inspection in camera. 14 Acting in accordance with the best interests of the victim 15 and the public, the judge shall have the discretion to 16 determine to whom, if anyone, the results of the testing may 17 be revealed. The court shall notify the defendant of the test 18 results. The court shall also notify the victim if requested 19 by the victim, and if the victim is under the age of 15 and 20 if requested by the victim's parents or legal guardian, the 21 court shall notify the victim's parents or legal guardian of 22 the test results. The court shall provide information on the 23 availability of HIV testing and counseling at Department of 24 Public Health facilities to all parties to whom the results 25 of the testing are revealed and shall direct the State's 26 Attorney to provide the information to the victim when 27 possible. A State's Attorney may petition the court to obtain 28 the results of any HIV test administered under this Section, 29 and the court shall grant the disclosure if the State's 30 Attorney shows it is relevant in order to prosecute a charge 31 of criminal transmission of HIV under Section 12-16.2 of the 32 Criminal Code of 1961 against the defendant. The court shall 33 order that the cost of any such test shall be paid by the 34 county and may be taxed as costs against the convicted HB2109 Engrossed -10- LRB9104666RCks 1 defendant. 2 (g-5) When an inmate is tested for an airborne 3 communicable disease, as determined by the Illinois 4 Department of Public Health including but not limited to 5 tuberculosis, the results of the test shall be personally 6 delivered by the warden or his or her designee in a sealed 7 envelope to the judge of the court in which the inmate must 8 appear for the judge's inspection in camera if requested by 9 the judge. Acting in accordance with the best interests of 10 those in the courtroom, the judge shall have the discretion 11 to determine what if any precautions need to be taken to 12 prevent transmission of the disease in the courtroom. 13 (h) Whenever a defendant is convicted of an offense 14 under Section 1 or 2 of the Hypodermic Syringes and Needles 15 Act, the defendant shall undergo medical testing to determine 16 whether the defendant has been exposed to human 17 immunodeficiency virus (HIV) or any other identified 18 causative agent of acquired immunodeficiency syndrome (AIDS). 19 Except as otherwise provided by law, the results of such test 20 shall be kept strictly confidential by all medical personnel 21 involved in the testing and must be personally delivered in a 22 sealed envelope to the judge of the court in which the 23 conviction was entered for the judge's inspection in camera. 24 Acting in accordance with the best interests of the public, 25 the judge shall have the discretion to determine to whom, if 26 anyone, the results of the testing may be revealed. The court 27 shall notify the defendant of a positive test showing an 28 infection with the human immunodeficiency virus (HIV). The 29 court shall provide information on the availability of HIV 30 testing and counseling at Department of Public Health 31 facilities to all parties to whom the results of the testing 32 are revealed and shall direct the State's Attorney to provide 33 the information to the victim when possible. A State's 34 Attorney may petition the court to obtain the results of any HB2109 Engrossed -11- LRB9104666RCks 1 HIV test administered under this Section, and the court 2 shall grant the disclosure if the State's Attorney shows it 3 is relevant in order to prosecute a charge of criminal 4 transmission of HIV under Section 12-16.2 of the Criminal 5 Code of 1961 against the defendant. The court shall order 6 that the cost of any such test shall be paid by the county 7 and may be taxed as costs against the convicted defendant. 8 (i) All fines and penalties imposed under this Section 9 for any violation of Chapters 3, 4, 6, and 11 of the Illinois 10 Vehicle Code, or a similar provision of a local ordinance, 11 and any violation of the Child Passenger Protection Act, or a 12 similar provision of a local ordinance, shall be collected 13 and disbursed by the circuit clerk as provided under Section 14 27.5 of the Clerks of Courts Act. 15 (j) In cases when prosecution for any violation of 16 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1, 17 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1, 18 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or 19 12-16 of the Criminal Code of 1961, any violation of the 20 Illinois Controlled Substances Act, or any violation of the 21 Cannabis Control Act results in conviction, a disposition of 22 court supervision, or an order of probation granted under 23 Section 10 of the Cannabis Control Act or Section 410 of the 24 Illinois Controlled Substance Act of a defendant, the court 25 shall determine whether the defendant is employed by a 26 facility or center as defined under the Child Care Act of 27 1969, a public or private elementary or secondary school, or 28 otherwise works with children under 18 years of age on a 29 daily basis. When a defendant is so employed, the court 30 shall order the Clerk of the Court to send a copy of the 31 judgment of conviction or order of supervision or probation 32 to the defendant's employer by certified mail. If the 33 employer of the defendant is a school, the Clerk of the Court 34 shall direct the mailing of a copy of the judgment of HB2109 Engrossed -12- LRB9104666RCks 1 conviction or order of supervision or probation to the 2 appropriate regional superintendent of schools. The regional 3 superintendent of schools shall notify the State Board of 4 Education of any notification under this subsection. 5 (j-5) A defendant at least 17 years of age who is 6 convicted of a felony and who has not been previously 7 convicted of a misdemeanor or felony and who is sentenced to 8 a term of imprisonment in the Illinois Department of 9 Corrections shall as a condition of his or her sentence be 10 required by the court to attend educational courses designed 11 to prepare the defendant for a high school diploma and to 12 work toward a high school diploma or to work toward passing 13 the high school level Test of General Educational Development 14 (GED) or to work toward completing a vocational training 15 program offered by the Department of Corrections. If a 16 defendant fails to complete the educational training required 17 by his or her sentence during the term of incarceration, the 18 Prisoner Review Board shall, as a condition of mandatory 19 supervised release, require the defendant, at his or her own 20 expense, to pursue a course of study toward a high school 21 diploma or passage of the GED test. The Prisoner Review 22 Board shall revoke the mandatory supervised release of a 23 defendant who wilfully fails to comply with this subsection 24 (j-5) upon his or her release from confinement in a penal 25 institution while serving a mandatory supervised release 26 term; however, the inability of the defendant after making a 27 good faith effort to obtain financial aid or pay for the 28 educational training shall not be deemed a wilful failure to 29 comply. The Prisoner Review Board shall recommit the 30 defendant whose mandatory supervised release term has been 31 revoked under this subsection (j-5) as provided in Section 32 3-3-9. This subsection (j-5) does not apply to a defendant 33 who has a high school diploma or has successfully passed the 34 GED test. This subsection (j-5) does not apply to a defendant HB2109 Engrossed -13- LRB9104666RCks 1 who is determined by the court to be developmentally disabled 2 or otherwise mentally incapable of completing the educational 3 or vocational program. 4 (k) A court may not impose a sentence or disposition for 5 a felony or misdemeanor that requires the defendant to be 6 implanted or injected with or to use any form of birth 7 control. 8 (l) (A) Except as provided in paragraph (C) of 9 subsection (l), whenever a defendant, who is an alien as 10 defined by the Immigration and Nationality Act, is 11 convicted of any felony or misdemeanor offense, the court 12 after sentencing the defendant may, upon motion of the 13 State's Attorney, hold sentence in abeyance and remand 14 the defendant to the custody of the Attorney General of 15 the United States or his or her designated agent to be 16 deported when: 17 (1) a final order of deportation has been 18 issued against the defendant pursuant to proceedings 19 under the Immigration and Nationality Act, and 20 (2) the deportation of the defendant would not 21 deprecate the seriousness of the defendant's conduct 22 and would not be inconsistent with the ends of 23 justice. 24 Otherwise, the defendant shall be sentenced as 25 provided in this Chapter V. 26 (B) If the defendant has already been sentenced for 27 a felony or misdemeanor offense, or has been placed on 28 probation under Section 10 of the Cannabis Control Act or 29 Section 410 of the Illinois Controlled Substances Act, 30 the court may, upon motion of the State's Attorney to 31 suspend the sentence imposed, commit the defendant to the 32 custody of the Attorney General of the United States or 33 his or her designated agent when: 34 (1) a final order of deportation has been HB2109 Engrossed -14- LRB9104666RCks 1 issued against the defendant pursuant to proceedings 2 under the Immigration and Nationality Act, and 3 (2) the deportation of the defendant would not 4 deprecate the seriousness of the defendant's conduct 5 and would not be inconsistent with the ends of 6 justice. 7 (C) This subsection (l) does not apply to offenders 8 who are subject to the provisions of paragraph (2) of 9 subsection (a) of Section 3-6-3. 10 (D) Upon motion of the State's Attorney, if a 11 defendant sentenced under this Section returns to the 12 jurisdiction of the United States, the defendant shall be 13 recommitted to the custody of the county from which he or 14 she was sentenced. Thereafter, the defendant shall be 15 brought before the sentencing court, which may impose any 16 sentence that was available under Section 5-5-3 at the 17 time of initial sentencing. In addition, the defendant 18 shall not be eligible for additional good conduct credit 19 for meritorious service as provided under Section 3-6-6. 20 (m) A person convicted of criminal defacement of 21 property under Section 21-1.3 of the Criminal Code of 1961, 22 in which the property damage exceeds $300 and the property 23 damaged is a school building, shall be ordered to perform 24 community service that may include cleanup, removal, or 25 painting over the defacement. 26 (Source: P.A. 89-8, eff. 3-21-95; 89-314, eff. 1-1-96; 27 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-477, eff. 28 6-18-96; 89-507, eff. 7-1-97; 89-545, eff. 7-25-96; 89-587, 29 eff. 7-31-96; 89-627, eff. 1-1-97; 89-688, eff. 6-1-97; 30 90-14, eff. 7-1-97; 90-68, eff. 7-8-97; 90-680, eff. 1-1-99; 31 90-685, eff. 1-1-99; 90-787, eff. 8-14-98; revised 9-16-98.)