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91_HB4638
LRB9110211DJcd
1 AN ACT in relation to criminal law.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Unified Code of Corrections is amended by
5 changing Section 5-5-3 as follows:
6 (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
7 Sec. 5-5-3. Disposition.
8 (a) Every person convicted of an offense shall be
9 sentenced as provided in this Section.
10 (b) The following options shall be appropriate
11 dispositions, alone or in combination, for all felonies and
12 misdemeanors other than those identified in subsection (c) of
13 this Section:
14 (1) A period of probation.
15 (2) A term of periodic imprisonment.
16 (3) A term of conditional discharge.
17 (4) A term of imprisonment.
18 (5) An order directing the offender to clean up and
19 repair the damage, if the offender was convicted under
20 paragraph (h) of Section 21-1 of the Criminal Code of
21 1961.
22 (6) A fine.
23 (7) An order directing the offender to make
24 restitution to the victim under Section 5-5-6 of this
25 Code.
26 (8) A sentence of participation in a county impact
27 incarceration program under Section 5-8-1.2 of this Code.
28 Whenever an individual is sentenced for an offense based
29 on upon an arrest for a violation of Section 11-501 of the
30 Illinois Vehicle Code, or a similar provision of a local
31 ordinance, and the professional evaluation recommends
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1 remedial or rehabilitative treatment or education, neither
2 the treatment nor the education shall be the sole disposition
3 and either or both may be imposed only in conjunction with
4 another disposition. The court shall monitor compliance with
5 any remedial education or treatment recommendations contained
6 in the professional evaluation. Programs conducting alcohol
7 or other drug evaluation or remedial education must be
8 licensed by the Department of Human Services. However, if
9 the individual is not a resident of Illinois, the court may
10 accept an alcohol or other drug evaluation or remedial
11 education program in the state of such individual's
12 residence. Programs providing treatment must be licensed
13 under existing applicable alcoholism and drug treatment
14 licensure standards.
15 In addition to any other fine or penalty required by law,
16 any individual convicted of a violation of Section 11-501 of
17 the Illinois Vehicle Code or a similar provision of local
18 ordinance, whose operation of a motor vehicle while in
19 violation of Section 11-501 or such ordinance proximately
20 caused an incident resulting in an appropriate emergency
21 response, shall be required to make restitution to a public
22 agency for the costs of that emergency response. Such
23 restitution shall not exceed $500 per public agency for each
24 such emergency response. For the purpose of this paragraph,
25 emergency response shall mean any incident requiring a
26 response by: a police officer as defined under Section 1-162
27 of the Illinois Vehicle Code; a fireman carried on the rolls
28 of a regularly constituted fire department; and an ambulance
29 as defined under Section 4.05 of the Emergency Medical
30 Services (EMS) Systems Act.
31 Neither a fine nor restitution shall be the sole
32 disposition for a felony and either or both may be imposed
33 only in conjunction with another disposition.
34 (c) (1) When a defendant is found guilty of first degree
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1 murder the State may either seek a sentence of
2 imprisonment under Section 5-8-1 of this Code, or where
3 appropriate seek a sentence of death under Section 9-1 of
4 the Criminal Code of 1961.
5 (2) A period of probation, a term of periodic
6 imprisonment or conditional discharge shall not be
7 imposed for the following offenses. The court shall
8 sentence the offender to not less than the minimum term
9 of imprisonment set forth in this Code for the following
10 offenses, and may order a fine or restitution or both in
11 conjunction with such term of imprisonment:
12 (A) First degree murder where the death
13 penalty is not imposed.
14 (B) Attempted first degree murder.
15 (C) A Class X felony.
16 (D) A violation of Section 401.1 or 407 of the
17 Illinois Controlled Substances Act, or a violation
18 of subdivision (c)(2) of Section 401 of that Act
19 which relates to more than 5 grams of a substance
20 containing cocaine or an analog thereof.
21 (E) A violation of Section 5.1 or 9 of the
22 Cannabis Control Act.
23 (F) A Class 2 or greater felony if the
24 offender had been convicted of a Class 2 or greater
25 felony within 10 years of the date on which he
26 committed the offense for which he is being
27 sentenced.
28 (G) Residential burglary.
29 (H) Criminal sexual assault, except as
30 otherwise provided in subsection (e) of this
31 Section.
32 (I) Aggravated battery of a senior citizen.
33 (J) A forcible felony if the offense was
34 related to the activities of an organized gang.
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1 Before July 1, 1994, for the purposes of this
2 paragraph, "organized gang" means an association of
3 5 or more persons, with an established hierarchy,
4 that encourages members of the association to
5 perpetrate crimes or provides support to the members
6 of the association who do commit crimes.
7 Beginning July 1, 1994, for the purposes of
8 this paragraph, "organized gang" has the meaning
9 ascribed to it in Section 10 of the Illinois
10 Streetgang Terrorism Omnibus Prevention Act.
11 (K) Vehicular hijacking.
12 (L) A second or subsequent conviction for the
13 offense of hate crime when the underlying offense
14 upon which the hate crime is based is felony
15 aggravated assault or felony mob action.
16 (M) A second or subsequent conviction for the
17 offense of institutional vandalism if the damage to
18 the property exceeds $300.
19 (N) A Class 3 felony violation of paragraph
20 (1) of subsection (a) of Section 2 of the Firearm
21 Owners Identification Card Act.
22 (O) A violation of Section 12-6.1 of the
23 Criminal Code of 1961.
24 (P) A violation of paragraph (1), (2), (3),
25 (4), (5), or (7) of subsection (a) of Section
26 11-20.1 of the Criminal Code of 1961.
27 (Q) A violation of Section 20-1.2 of the
28 Criminal Code of 1961.
29 (R) A violation of Section 24-3A of the
30 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 (d) In any case in which a sentence originally imposed
13 is vacated, the case shall be remanded to the trial court.
14 The trial court shall hold a hearing under Section 5-4-1 of
15 the Unified Code of Corrections which may include evidence of
16 the defendant's life, moral character and occupation during
17 the time since the original sentence was passed. The trial
18 court shall then impose sentence upon the defendant. The
19 trial court may impose any sentence which could have been
20 imposed at the original trial subject to Section 5-5-4 of the
21 Unified Code of Corrections.
22 (e) In cases where prosecution for criminal sexual
23 assault or aggravated criminal sexual abuse under Section
24 12-13 or 12-16 of the Criminal Code of 1961 results in
25 conviction of a defendant who was a family member of the
26 victim at the time of the commission of the offense, the
27 court shall consider the safety and welfare of the victim and
28 may impose a sentence of probation only where:
29 (1) the court finds (A) or (B) or both are
30 appropriate:
31 (A) the defendant is willing to undergo a
32 court approved counseling program for a minimum
33 duration of 2 years; or
34 (B) the defendant is willing to participate in
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1 a court approved plan including but not limited to
2 the defendant's:
3 (i) removal from the household;
4 (ii) restricted contact with the victim;
5 (iii) continued financial support of the
6 family;
7 (iv) restitution for harm done to the
8 victim; and
9 (v) compliance with any other measures
10 that the court may deem appropriate; and
11 (2) the court orders the defendant to pay for the
12 victim's counseling services, to the extent that the
13 court finds, after considering the defendant's income and
14 assets, that the defendant is financially capable of
15 paying for such services, if the victim was under 18
16 years of age at the time the offense was committed and
17 requires counseling as a result of the offense.
18 Probation may be revoked or modified pursuant to Section
19 5-6-4; except where the court determines at the hearing that
20 the defendant violated a condition of his or her probation
21 restricting contact with the victim or other family members
22 or commits another offense with the victim or other family
23 members, the court shall revoke the defendant's probation and
24 impose a term of imprisonment.
25 For the purposes of this Section, "family member" and
26 "victim" shall have the meanings ascribed to them in Section
27 12-12 of the Criminal Code of 1961.
28 (f) This Article shall not deprive a court in other
29 proceedings to order a forfeiture of property, to suspend or
30 cancel a license, to remove a person from office, or to
31 impose any other civil penalty.
32 (g) Whenever a defendant is convicted of an offense
33 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
34 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
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1 12-15 or 12-16 of the Criminal Code of 1961, the defendant
2 shall undergo medical testing to determine whether the
3 defendant has any sexually transmissible disease, including a
4 test for infection with human immunodeficiency virus (HIV) or
5 any other identified causative agent of acquired
6 immunodeficiency syndrome (AIDS). Any such medical test
7 shall be performed only by appropriately licensed medical
8 practitioners and may include an analysis of any bodily
9 fluids as well as an examination of the defendant's person.
10 Except as otherwise provided by law, the results of such test
11 shall be kept strictly confidential by all medical personnel
12 involved in the testing and must be personally delivered in a
13 sealed envelope to the judge of the court in which the
14 conviction was entered for the judge's inspection in camera.
15 Acting in accordance with the best interests of the victim
16 and the public, the judge shall have the discretion to
17 determine to whom, if anyone, the results of the testing may
18 be revealed. The court shall notify the defendant of the test
19 results. The court shall also notify the victim if requested
20 by the victim, and if the victim is under the age of 15 and
21 if requested by the victim's parents or legal guardian, the
22 court shall notify the victim's parents or legal guardian of
23 the test results. The court shall provide information on the
24 availability of HIV testing and counseling at Department of
25 Public Health facilities to all parties to whom the results
26 of the testing are revealed and shall direct the State's
27 Attorney to provide the information to the victim when
28 possible. A State's Attorney may petition the court to obtain
29 the results of any HIV test administered under this Section,
30 and the court shall grant the disclosure if the State's
31 Attorney shows it is relevant in order to prosecute a charge
32 of criminal transmission of HIV under Section 12-16.2 of the
33 Criminal Code of 1961 against the defendant. The court shall
34 order that the cost of any such test shall be paid by the
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1 county and may be taxed as costs against the convicted
2 defendant.
3 (g-5) When an inmate is tested for an airborne
4 communicable disease, as determined by the Illinois
5 Department of Public Health including but not limited to
6 tuberculosis, the results of the test shall be personally
7 delivered by the warden or his or her designee in a sealed
8 envelope to the judge of the court in which the inmate must
9 appear for the judge's inspection in camera if requested by
10 the judge. Acting in accordance with the best interests of
11 those in the courtroom, the judge shall have the discretion
12 to determine what if any precautions need to be taken to
13 prevent transmission of the disease in the courtroom.
14 (h) Whenever a defendant is convicted of an offense
15 under Section 1 or 2 of the Hypodermic Syringes and Needles
16 Act, the defendant shall undergo medical testing to determine
17 whether the defendant has been exposed to human
18 immunodeficiency virus (HIV) or any other identified
19 causative agent of acquired immunodeficiency syndrome (AIDS).
20 Except as otherwise provided by law, the results of such test
21 shall be kept strictly confidential by all medical personnel
22 involved in the testing and must be personally delivered in a
23 sealed envelope to the judge of the court in which the
24 conviction was entered for the judge's inspection in camera.
25 Acting in accordance with the best interests of the public,
26 the judge shall have the discretion to determine to whom, if
27 anyone, the results of the testing may be revealed. The court
28 shall notify the defendant of a positive test showing an
29 infection with the human immunodeficiency virus (HIV). The
30 court shall provide information on the availability of HIV
31 testing and counseling at Department of Public Health
32 facilities to all parties to whom the results of the testing
33 are revealed and shall direct the State's Attorney to provide
34 the information to the victim when possible. A State's
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1 Attorney may petition the court to obtain the results of any
2 HIV test administered under this Section, and the court
3 shall grant the disclosure if the State's Attorney shows it
4 is relevant in order to prosecute a charge of criminal
5 transmission of HIV under Section 12-16.2 of the Criminal
6 Code of 1961 against the defendant. The court shall order
7 that the cost of any such test shall be paid by the county
8 and may be taxed as costs against the convicted defendant.
9 (i) All fines and penalties imposed under this Section
10 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
11 Vehicle Code, or a similar provision of a local ordinance,
12 and any violation of the Child Passenger Protection Act, or a
13 similar provision of a local ordinance, shall be collected
14 and disbursed by the circuit clerk as provided under Section
15 27.5 of the Clerks of Courts Act.
16 (j) In cases when prosecution for any violation of
17 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
18 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
19 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
20 12-16 of the Criminal Code of 1961, any violation of the
21 Illinois Controlled Substances Act, or any violation of the
22 Cannabis Control Act results in conviction, a disposition of
23 court supervision, or an order of probation granted under
24 Section 10 of the Cannabis Control Act or Section 410 of the
25 Illinois Controlled Substance Act of a defendant, the court
26 shall determine whether the defendant is employed by a
27 facility or center as defined under the Child Care Act of
28 1969, a public or private elementary or secondary school, or
29 otherwise works with children under 18 years of age on a
30 daily basis. When a defendant is so employed, the court
31 shall order the Clerk of the Court to send a copy of the
32 judgment of conviction or order of supervision or probation
33 to the defendant's employer by certified mail. If the
34 employer of the defendant is a school, the Clerk of the Court
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1 shall direct the mailing of a copy of the judgment of
2 conviction or order of supervision or probation to the
3 appropriate regional superintendent of schools. The regional
4 superintendent of schools shall notify the State Board of
5 Education of any notification under this subsection.
6 (j-5) A defendant at least 17 years of age who is
7 convicted of a felony and who has not been previously
8 convicted of a misdemeanor or felony and who is sentenced to
9 a term of imprisonment in the Illinois Department of
10 Corrections shall as a condition of his or her sentence be
11 required by the court to attend educational courses designed
12 to prepare the defendant for a high school diploma and to
13 work toward a high school diploma or to work toward passing
14 the high school level Test of General Educational Development
15 (GED) or to work toward completing a vocational training
16 program offered by the Department of Corrections. If a
17 defendant fails to complete the educational training required
18 by his or her sentence during the term of incarceration, the
19 Prisoner Review Board shall, as a condition of mandatory
20 supervised release, require the defendant, at his or her own
21 expense, to pursue a course of study toward a high school
22 diploma or passage of the GED test. The Prisoner Review
23 Board shall revoke the mandatory supervised release of a
24 defendant who wilfully fails to comply with this subsection
25 (j-5) upon his or her release from confinement in a penal
26 institution while serving a mandatory supervised release
27 term; however, the inability of the defendant after making a
28 good faith effort to obtain financial aid or pay for the
29 educational training shall not be deemed a wilful failure to
30 comply. The Prisoner Review Board shall recommit the
31 defendant whose mandatory supervised release term has been
32 revoked under this subsection (j-5) as provided in Section
33 3-3-9. This subsection (j-5) does not apply to a defendant
34 who has a high school diploma or has successfully passed the
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1 GED test. This subsection (j-5) does not apply to a defendant
2 who is determined by the court to be developmentally disabled
3 or otherwise mentally incapable of completing the educational
4 or vocational program.
5 (k) A court may not impose a sentence or disposition for
6 a felony or misdemeanor that requires the defendant to be
7 implanted or injected with or to use any form of birth
8 control.
9 (l) (A) Except as provided in paragraph (C) of
10 subsection (l), whenever a defendant, who is an alien as
11 defined by the Immigration and Nationality Act, is
12 convicted of any felony or misdemeanor offense, the court
13 after sentencing the defendant may, upon motion of the
14 State's Attorney, hold sentence in abeyance and remand
15 the defendant to the custody of the Attorney General of
16 the United States or his or her designated agent to be
17 deported when:
18 (1) a final order of deportation has been
19 issued against the defendant pursuant to proceedings
20 under the Immigration and Nationality Act, and
21 (2) the deportation of the defendant would not
22 deprecate the seriousness of the defendant's conduct
23 and would not be inconsistent with the ends of
24 justice.
25 Otherwise, the defendant shall be sentenced as
26 provided in this Chapter V.
27 (B) If the defendant has already been sentenced for
28 a felony or misdemeanor offense, or has been placed on
29 probation under Section 10 of the Cannabis Control Act or
30 Section 410 of the Illinois Controlled Substances Act,
31 the court may, upon motion of the State's Attorney to
32 suspend the sentence imposed, commit the defendant to the
33 custody of the Attorney General of the United States or
34 his or her designated agent when:
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1 (1) a final order of deportation has been
2 issued against the defendant pursuant to proceedings
3 under the Immigration and Nationality Act, and
4 (2) the deportation of the defendant would not
5 deprecate the seriousness of the defendant's conduct
6 and would not be inconsistent with the ends of
7 justice.
8 (C) This subsection (l) does not apply to offenders
9 who are subject to the provisions of paragraph (2) of
10 subsection (a) of Section 3-6-3.
11 (D) Upon motion of the State's Attorney, if a
12 defendant sentenced under this Section returns to the
13 jurisdiction of the United States, the defendant shall be
14 recommitted to the custody of the county from which he or
15 she was sentenced. Thereafter, the defendant shall be
16 brought before the sentencing court, which may impose any
17 sentence that was available under Section 5-5-3 at the
18 time of initial sentencing. In addition, the defendant
19 shall not be eligible for additional good conduct credit
20 for meritorious service as provided under Section 3-6-6.
21 (m) A person convicted of criminal defacement of
22 property under Section 21-1.3 of the Criminal Code of 1961,
23 in which the property damage exceeds $300 and the property
24 damaged is a school building, shall be ordered to perform
25 community service that may include cleanup, removal, or
26 painting over the defacement.
27 (Source: P.A. 90-14, eff. 7-1-97; 90-68, eff. 7-8-97; 90-680,
28 eff. 1-1-99; 90-685, eff. 1-1-99; 90-787, eff. 8-14-98;
29 91-357, eff. 7-29-99; 91-404, eff. 1-1-00.)