State of Illinois
92nd General Assembly
Legislation

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92_HB0100

 
                                               LRB9200820ARcd

 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
 
                            -2-                LRB9200820ARcd
 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
 
                            -3-                LRB9200820ARcd
 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 the
26             offender committed the offense for which he  or  she
27             is  being sentenced, except as otherwise provided in
28             Section 40-10 of the Alcoholism and Other Drug Abuse
29             and Dependency Act.
30                  (G)  Residential burglary, except as  otherwise
31             provided  in  Section  40-10  of  the Alcoholism and
32             Other Drug Abuse and Dependency Act.
33                  (H)  Criminal   sexual   assault,   except   as
34             otherwise  provided  in  subsection  (e)   of   this
 
                            -4-                LRB9200820ARcd
 1             Section.
 2                  (I)  Aggravated battery of a senior citizen.
 3                  (J)  A  forcible  felony  if  the  offense  was
 4             related to the activities of an organized gang.
 5                  Before  July  1, 1994, for the purposes of this
 6             paragraph, "organized gang" means an association  of
 7             5  or  more  persons, with an established hierarchy,
 8             that  encourages  members  of  the  association   to
 9             perpetrate crimes or provides support to the members
10             of the association who do commit crimes.
11                  Beginning  July  1,  1994,  for the purposes of
12             this paragraph, "organized  gang"  has  the  meaning
13             ascribed  to  it  in  Section  10  of  the  Illinois
14             Streetgang Terrorism Omnibus 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                  (Q)  A  violation  of  Section  20-1.2  of  the
32             Criminal Code of 1961.
33                  (R)  A   violation  of  Section  24-3A  of  the
34             Criminal Code of 1961.
 
                            -5-                LRB9200820ARcd
 1             (3)  A minimum term of imprisonment of not less than
 2        48 consecutive hours or 100 hours of community service as
 3        may be determined by the court shall  be  imposed  for  a
 4        second  or  subsequent violation committed within 5 years
 5        of a previous violation of Section 11-501 of the Illinois
 6        Vehicle Code or a similar provision of a local ordinance.
 7             (4)  A minimum term of imprisonment of not less than
 8        7 consecutive days or 30 days of community service  shall
 9        be  imposed  for  a violation of paragraph (c) of Section
10        6-303 of the Illinois Vehicle Code.
11             (4.1)  A minimum term  of  30  consecutive  days  of
12        imprisonment, 40 days of 24 hour periodic imprisonment or
13        720  hours  of community service, as may be determined by
14        the court, shall be imposed for a  violation  of  Section
15        11-501  of  the  Illinois Vehicle Code during a period in
16        which the defendant's driving privileges are  revoked  or
17        suspended,  where  the revocation or suspension was for a
18        violation of Section 11-501 or Section 11-501.1  of  that
19        Code.
20             (5)  The court may sentence an offender convicted of
21        a business offense or a petty offense or a corporation or
22        unincorporated association convicted of any offense to:
23                  (A)  a period of conditional discharge;
24                  (B)  a fine;
25                  (C)  make   restitution  to  the  victim  under
26             Section 5-5-6 of this Code.
27             (6)  In no case shall an offender be eligible for  a
28        disposition  of  probation or conditional discharge for a
29        Class 1 felony committed while he was serving a  term  of
30        probation or conditional discharge for a felony.
31             (7)  When   a   defendant  is  adjudged  a  habitual
32        criminal under Article 33B of the Criminal Code of  1961,
33        the  court  shall  sentence  the  defendant  to a term of
34        natural life imprisonment.
 
                            -6-                LRB9200820ARcd
 1             (8)  When a defendant, over the age of 21 years,  is
 2        convicted  of  a  Class 1 or Class 2 felony, after having
 3        twice been convicted of any  Class  2  or  greater  Class
 4        felonies  in  Illinois,  and  such charges are separately
 5        brought and tried and arise out of  different  series  of
 6        acts,  such  defendant  shall  be  sentenced as a Class X
 7        offender. This paragraph shall not apply unless  (1)  the
 8        first  felony  was  committed after the effective date of
 9        this amendatory Act of 1977; and (2)  the  second  felony
10        was  committed after conviction on the first; and (3) the
11        third  felony  was  committed  after  conviction  on  the
12        second.
13             (9)  A defendant convicted of a second or subsequent
14        offense of ritualized abuse of a child may  be  sentenced
15        to a term of natural life imprisonment.
16        (d)  In  any  case in which a sentence originally imposed
17    is vacated, the case shall be remanded to  the  trial  court.
18    The  trial  court shall hold a hearing under Section 5-4-1 of
19    the Unified Code of Corrections which may include evidence of
20    the defendant's life, moral character and  occupation  during
21    the  time  since the original sentence was passed.  The trial
22    court shall then impose sentence  upon  the  defendant.   The
23    trial  court  may  impose  any sentence which could have been
24    imposed at the original trial subject to Section 5-5-4 of the
25    Unified Code of Corrections.
26        (e)  In  cases  where  prosecution  for  criminal  sexual
27    assault or aggravated criminal  sexual  abuse  under  Section
28    12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
29    conviction of a defendant who was  a  family  member  of  the
30    victim  at  the  time  of  the commission of the offense, the
31    court shall consider the safety and welfare of the victim and
32    may impose a sentence of probation only where:
33             (1)  the  court  finds  (A)  or  (B)  or  both   are
34        appropriate:
 
                            -7-                LRB9200820ARcd
 1                  (A)  the  defendant  is  willing  to  undergo a
 2             court approved  counseling  program  for  a  minimum
 3             duration of 2 years; or
 4                  (B)  the defendant is willing to participate in
 5             a  court  approved plan including but not limited to
 6             the defendant's:
 7                       (i)  removal from the household;
 8                       (ii)  restricted contact with the victim;
 9                       (iii)  continued financial support of  the
10                  family;
11                       (iv)  restitution  for  harm  done  to the
12                  victim; and
13                       (v)  compliance with  any  other  measures
14                  that the court may deem appropriate; and
15             (2)  the  court  orders the defendant to pay for the
16        victim's counseling services,  to  the  extent  that  the
17        court finds, after considering the defendant's income and
18        assets,  that  the  defendant  is  financially capable of
19        paying for such services, if  the  victim  was  under  18
20        years  of  age  at the time the offense was committed and
21        requires counseling as a result of the offense.
22        Probation may be revoked or modified pursuant to  Section
23    5-6-4;  except where the court determines at the hearing that
24    the defendant violated a condition of his  or  her  probation
25    restricting  contact  with the victim or other family members
26    or commits another offense with the victim  or  other  family
27    members, the court shall revoke the defendant's probation and
28    impose a term of imprisonment.
29        For  the  purposes  of  this Section, "family member" and
30    "victim" shall have the meanings ascribed to them in  Section
31    12-12 of the Criminal Code of 1961.
32        (f)  This  Article  shall  not  deprive  a court in other
33    proceedings to order a forfeiture of property, to suspend  or
34    cancel  a  license,  to  remove  a  person from office, or to
 
                            -8-                LRB9200820ARcd
 1    impose any other civil penalty.
 2        (g)  Whenever a defendant  is  convicted  of  an  offense
 3    under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
 4    11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
 5    12-15  or  12-16  of the Criminal Code of 1961, the defendant
 6    shall  undergo  medical  testing  to  determine  whether  the
 7    defendant has any sexually transmissible disease, including a
 8    test for infection with human immunodeficiency virus (HIV) or
 9    any   other   identified   causative   agent   of    acquired
10    immunodeficiency  syndrome  (AIDS).   Any  such  medical test
11    shall be performed only  by  appropriately  licensed  medical
12    practitioners  and  may  include  an  analysis  of any bodily
13    fluids as well as an examination of the  defendant's  person.
14    Except as otherwise provided by law, the results of such test
15    shall  be kept strictly confidential by all medical personnel
16    involved in the testing and must be personally delivered in a
17    sealed envelope to the  judge  of  the  court  in  which  the
18    conviction  was entered for the judge's inspection in camera.
19    Acting in accordance with the best interests  of  the  victim
20    and  the  public,  the  judge  shall  have  the discretion to
21    determine to whom, if anyone, the results of the testing  may
22    be revealed. The court shall notify the defendant of the test
23    results.  The court shall also notify the victim if requested
24    by  the  victim, and if the victim is under the age of 15 and
25    if requested by the victim's parents or legal  guardian,  the
26    court  shall notify the victim's parents or legal guardian of
27    the test results.  The court shall provide information on the
28    availability of HIV testing and counseling at  Department  of
29    Public  Health  facilities to all parties to whom the results
30    of the testing are revealed  and  shall  direct  the  State's
31    Attorney  to  provide  the  information  to  the  victim when
32    possible. A State's Attorney may petition the court to obtain
33    the results of any HIV test administered under this  Section,
34    and  the  court  shall  grant  the  disclosure if the State's
 
                            -9-                LRB9200820ARcd
 1    Attorney shows it is relevant in order to prosecute a  charge
 2    of  criminal transmission of HIV under Section 12-16.2 of the
 3    Criminal Code of 1961 against the defendant.  The court shall
 4    order that the cost of any such test shall  be  paid  by  the
 5    county  and  may  be  taxed  as  costs  against the convicted
 6    defendant.
 7        (g-5)  When  an  inmate  is  tested   for   an   airborne
 8    communicable   disease,   as   determined   by  the  Illinois
 9    Department of Public Health  including  but  not  limited  to
10    tuberculosis,  the  results  of  the test shall be personally
11    delivered by the warden or his or her designee  in  a  sealed
12    envelope  to  the judge of the court in which the inmate must
13    appear for the judge's inspection in camera if  requested  by
14    the  judge.   Acting in accordance with the best interests of
15    those in the courtroom, the judge shall have  the  discretion
16    to  determine  what  if  any  precautions need to be taken to
17    prevent transmission of the disease in the courtroom.
18        (h)  Whenever a defendant  is  convicted  of  an  offense
19    under  Section  1 or 2 of the Hypodermic Syringes and Needles
20    Act, the defendant shall undergo medical testing to determine
21    whether   the   defendant   has   been   exposed   to   human
22    immunodeficiency  virus  (HIV)  or   any   other   identified
23    causative agent of acquired immunodeficiency syndrome (AIDS).
24    Except as otherwise provided by law, the results of such test
25    shall  be kept strictly confidential by all medical personnel
26    involved in the testing and must be personally delivered in a
27    sealed envelope to the  judge  of  the  court  in  which  the
28    conviction  was entered for the judge's inspection in camera.
29    Acting in accordance with the best interests of  the  public,
30    the  judge shall have the discretion to determine to whom, if
31    anyone, the results of the testing may be revealed. The court
32    shall notify the defendant of  a  positive  test  showing  an
33    infection  with  the  human immunodeficiency virus (HIV). The
34    court shall provide information on the  availability  of  HIV
 
                            -10-               LRB9200820ARcd
 1    testing   and  counseling  at  Department  of  Public  Health
 2    facilities to all parties to whom the results of the  testing
 3    are revealed and shall direct the State's Attorney to provide
 4    the  information  to  the  victim  when  possible.  A State's
 5    Attorney may petition the court to obtain the results of  any
 6    HIV  test  administered  under  this   Section, and the court
 7    shall grant the disclosure if the State's Attorney  shows  it
 8    is  relevant  in  order  to  prosecute  a  charge of criminal
 9    transmission of HIV under Section  12-16.2  of  the  Criminal
10    Code  of  1961  against  the defendant. The court shall order
11    that the cost of any such test shall be paid  by  the  county
12    and may be taxed as costs against the convicted defendant.
13        (i)  All  fines  and penalties imposed under this Section
14    for any violation of Chapters 3, 4, 6, and 11 of the Illinois
15    Vehicle Code, or a similar provision of  a  local  ordinance,
16    and any violation of the Child Passenger Protection Act, or a
17    similar  provision  of  a local ordinance, shall be collected
18    and disbursed by the circuit clerk as provided under  Section
19    27.5 of the Clerks of Courts Act.
20        (j)  In  cases  when  prosecution  for  any  violation of
21    Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
22    11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
23    11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
24    12-16  of  the  Criminal  Code  of 1961, any violation of the
25    Illinois Controlled Substances Act, or any violation  of  the
26    Cannabis  Control Act results in conviction, a disposition of
27    court supervision, or an order  of  probation  granted  under
28    Section  10 of the Cannabis Control Act or Section 410 of the
29    Illinois Controlled Substance Act of a defendant,  the  court
30    shall  determine  whether  the  defendant  is  employed  by a
31    facility or center as defined under the  Child  Care  Act  of
32    1969,  a public or private elementary or secondary school, or
33    otherwise works with children under 18  years  of  age  on  a
34    daily  basis.   When  a  defendant  is so employed, the court
 
                            -11-               LRB9200820ARcd
 1    shall order the Clerk of the Court to  send  a  copy  of  the
 2    judgment  of  conviction or order of supervision or probation
 3    to  the  defendant's  employer  by  certified  mail.  If  the
 4    employer of the defendant is a school, the Clerk of the Court
 5    shall direct the  mailing  of  a  copy  of  the  judgment  of
 6    conviction  or  order  of  supervision  or  probation  to the
 7    appropriate regional superintendent of schools.  The regional
 8    superintendent of schools shall notify  the  State  Board  of
 9    Education of any notification under this subsection.
10        (j-5)  A  defendant  at  least  17  years  of  age who is
11    convicted of  a  felony  and  who  has  not  been  previously
12    convicted  of a misdemeanor or felony and who is sentenced to
13    a  term  of  imprisonment  in  the  Illinois  Department   of
14    Corrections  shall  as  a condition of his or her sentence be
15    required by the court to attend educational courses  designed
16    to  prepare  the  defendant  for a high school diploma and to
17    work toward a high school diploma or to work  toward  passing
18    the high school level Test of General Educational Development
19    (GED)  or  to  work  toward  completing a vocational training
20    program offered by  the  Department  of  Corrections.   If  a
21    defendant fails to complete the educational training required
22    by  his or her sentence during the term of incarceration, the
23    Prisoner Review Board shall,  as  a  condition  of  mandatory
24    supervised  release, require the defendant, at his or her own
25    expense, to pursue a course of study  toward  a  high  school
26    diploma  or  passage  of  the  GED test.  The Prisoner Review
27    Board shall revoke the  mandatory  supervised  release  of  a
28    defendant  who  wilfully fails to comply with this subsection
29    (j-5) upon his or her release from  confinement  in  a  penal
30    institution  while  serving  a  mandatory  supervised release
31    term; however, the inability of the defendant after making  a
32    good  faith  effort  to  obtain  financial aid or pay for the
33    educational training shall not be deemed a wilful failure  to
34    comply.    The  Prisoner  Review  Board  shall  recommit  the
 
                            -12-               LRB9200820ARcd
 1    defendant whose mandatory supervised release  term  has  been
 2    revoked  under  this  subsection (j-5) as provided in Section
 3    3-3-9.  This subsection (j-5) does not apply to  a  defendant
 4    who  has a high school diploma or has successfully passed the
 5    GED test. This subsection (j-5) does not apply to a defendant
 6    who is determined by the court to be developmentally disabled
 7    or otherwise mentally incapable of completing the educational
 8    or vocational program.
 9        (k)  A court may not impose a sentence or disposition for
10    a felony or misdemeanor that requires  the  defendant  to  be
11    implanted  or  injected  with  or  to  use  any form of birth
12    control.
13        (l) (A)  Except  as  provided   in   paragraph   (C)   of
14        subsection  (l), whenever a defendant, who is an alien as
15        defined  by  the  Immigration  and  Nationality  Act,  is
16        convicted of any felony or misdemeanor offense, the court
17        after sentencing the defendant may, upon  motion  of  the
18        State's  Attorney,  hold  sentence in abeyance and remand
19        the defendant to the custody of the Attorney  General  of
20        the  United  States  or his or her designated agent to be
21        deported when:
22                  (1)  a final  order  of  deportation  has  been
23             issued against the defendant pursuant to proceedings
24             under the Immigration and Nationality Act, and
25                  (2)  the deportation of the defendant would not
26             deprecate the seriousness of the defendant's conduct
27             and  would  not  be  inconsistent  with  the ends of
28             justice.
29             Otherwise,  the  defendant  shall  be  sentenced  as
30        provided in this Chapter V.
31             (B)  If the defendant has already been sentenced for
32        a felony or misdemeanor offense, or has  been  placed  on
33        probation under Section 10 of the Cannabis Control Act or
34        Section  410  of  the Illinois Controlled Substances Act,
 
                            -13-               LRB9200820ARcd
 1        the court may, upon motion of  the  State's  Attorney  to
 2        suspend the sentence imposed, commit the defendant to the
 3        custody  of  the Attorney General of the United States or
 4        his or her designated agent when:
 5                  (1)  a final  order  of  deportation  has  been
 6             issued against the defendant pursuant to proceedings
 7             under the Immigration and Nationality Act, and
 8                  (2)  the deportation of the defendant would not
 9             deprecate the seriousness of the defendant's conduct
10             and  would  not  be  inconsistent  with  the ends of
11             justice.
12             (C)  This subsection (l) does not apply to offenders
13        who are subject to the provisions  of  paragraph  (2)  of
14        subsection (a) of Section 3-6-3.
15             (D)  Upon  motion  of  the  State's  Attorney,  if a
16        defendant sentenced under this  Section  returns  to  the
17        jurisdiction of the United States, the defendant shall be
18        recommitted to the custody of the county from which he or
19        she  was  sentenced.  Thereafter,  the defendant shall be
20        brought before the sentencing court, which may impose any
21        sentence that was available under Section  5-5-3  at  the
22        time  of  initial sentencing.  In addition, the defendant
23        shall not be eligible for additional good conduct  credit
24        for meritorious service as provided under Section 3-6-6.
25        (m)  A   person   convicted  of  criminal  defacement  of
26    property under Section 21-1.3 of the Criminal Code  of  1961,
27    in  which  the  property damage exceeds $300 and the property
28    damaged is a school building, shall  be  ordered  to  perform
29    community  service  that  may  include  cleanup,  removal, or
30    painting over the defacement.
31    (Source: P.A. 90-14, eff. 7-1-97; 90-68, eff. 7-8-97; 90-680,
32    eff. 1-1-99;  90-685,  eff.  1-1-99;  90-787,  eff.  8-14-98;
33    91-357,  eff.  7-29-99;  91-404,  eff.  1-1-00;  91-663, eff.
34    12-22-99; 91-695, eff. 4-13-00.)

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