State of Illinois
92nd General Assembly
Legislation

   [ Search ]   [ PDF text ]   [ Legislation ]   
[ Home ]   [ Back ]   [ Bottom ]


[ Introduced ][ Engrossed ]


92_SB1050sam001

 










                                             LRB9201177ARsbam

 1                    AMENDMENT TO SENATE BILL 1050

 2        AMENDMENT NO.     .  Amend Senate Bill 1050 as follows:
 3    by replacing everything after the enacting  clause  with  the
 4    following:

 5        "Section  5.   The  Code of Criminal Procedure of 1963 is
 6    amended by changing Sections 114-13, 122-1, 122-2, and  122-3
 7    and by adding Section 122-6.1 as follows:

 8        (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
 9        Sec. 114-13.  Discovery in criminal cases.
10        (a)  Discovery  procedures  in criminal cases shall be in
11    accordance with Supreme Court Rules.
12        (b)  Any investigative, law enforcement, or other  agency
13    responsible   for   investigating   any  felony  offense,  or
14    participating in an investigation of any felony offense shall
15    provide to the authority prosecuting the offense all  reports
16    that  have been generated by or have come into the possession
17    of the investigating  agency  concerning  the  offense  being
18    investigated.   In  addition,  the investigating agency shall
19    provide  to  the  prosecuting  authority  any   material   or
20    information  within its possession or control that would tend
21    to negate the guilt of the accused of the offense charged  or
22    reduce   his  or  her  punishment  for  the  offense.   Every
 
                            -2-              LRB9201177ARsbam
 1    investigative and law enforcement agency in this State  shall
 2    adopt policies to ensure compliance with these provisions.
 3    (Source: Laws 1963, p. 2836.)

 4        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
 5        Sec. 122-1. Petition in the trial court.
 6        (a)  Any   person  imprisoned  in  the  penitentiary  who
 7    asserts that in the proceedings which resulted in his or  her
 8    conviction  there  was  a  substantial  denial  of his or her
 9    rights under the Constitution of the United States or of  the
10    State  of  Illinois  or both may institute a proceeding under
11    this Article.    Under  the  Constitution  of  the  State  of
12    Illinois,  an  assertion  of  substantial  denial  of  rights
13    pursuant  to this Article includes, but is not limited to, an
14    independent  claim  of  actual  innocence  based   on   newly
15    discovered evidence.
16        (b)  The proceeding shall be commenced by filing with the
17    clerk  of  the  court  in  which  the conviction took place a
18    petition  (together  with  a  copy   thereof)   verified   by
19    affidavit.  Petitioner shall also serve another copy upon the
20    State's  Attorney by any of the methods provided in Rule 7 of
21    the Supreme Court.  The clerk shall docket the  petition  for
22    consideration  by  the court pursuant to Section 122-2.1 upon
23    his or her receipt thereof and bring the same promptly to the
24    attention of the court.
25        (c)  A proceeding  on  an  independent  claim  of  actual
26    innocence   based   on  newly  discovered  evidence  must  be
27    commenced within 6 months after  the  discovery  of  the  new
28    evidence  by  the  defendant. No other proceedings under this
29    Article shall be commenced  more  than  6  months  after  the
30    denial  of  a  petition  for leave  to appeal or the date for
31    filing such a petition if none is filed or more than 45  days
32    after  the  defendant files his or her brief in the appeal of
33    the sentence before the Illinois Supreme Court (or more  than
 
                            -3-              LRB9201177ARsbam
 1    45  days after the deadline for the filing of the defendant's
 2    brief with the Illinois Supreme Court if no brief  is  filed)
 3    or  3 years from the date of conviction, whichever is sooner,
 4    unless the petitioner alleges facts showing  that  the  delay
 5    was not due to his or her culpable negligence.
 6        (d)  A  person  seeking relief by filing a petition under
 7    this Section must specify in the petition or its heading that
 8    it is filed under this Section.    A  trial  court  that  has
 9    received  a  petition complaining of a conviction or sentence
10    that fails to specify in the petition or its heading that  it
11    is filed under this Section need not evaluate the petition to
12    determine whether it could otherwise have stated some grounds
13    for relief under this Article.
14        (e)  A proceeding under this Article may not be commenced
15    on  behalf  of  a  defendant  who has been sentenced to death
16    without the written consent  of  the  defendant,  unless  the
17    defendant,  because  of  a  mental  or physical condition, is
18    incapable of asserting his or her own claim.
19    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
20    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)

21        (725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
22        Sec. 122-2.  Contents of petition.
23        The  petition  shall identify the proceeding in which the
24    petitioner was convicted, give the date of the  rendition  of
25    the  final  judgment complained of, and clearly set forth the
26    respects in which  petitioner's  constitutional  rights  were
27    violated.    If  the petition asserts an independent claim of
28    actual innocence based on newly discovered evidence, it  must
29    set  forth  the  nature of the evidence and demonstrate that:
30    (i) the new evidence was  discovered  since  the  defendant's
31    trial;  and  (ii)   the  new  evidence  could  not  have been
32    discovered prior to trial by the exercise of  due  diligence.
33    The petition shall have attached thereto affidavits, records,
 
                            -4-              LRB9201177ARsbam
 1    or  other  evidence supporting its allegations or shall state
 2    why the same are not attached. The  petition  shall  identify
 3    any  previous  proceedings that the petitioner may have taken
 4    to secure relief from his conviction. Argument and  citations
 5    and  discussion  of  authorities  shall  be  omitted from the
 6    petition.
 7    (Source: Laws 1963, p. 2836.)

 8        (725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
 9        Sec. 122-3.  Waiver of claims.
10        Any claim of substantial denial of constitutional  rights
11    not  raised in the original or an amended petition is waived.
12    This provision shall  not  apply  to  independent  claims  of
13    actual innocence based on newly discovered evidence.
14    (Source: Laws 1963, p. 2836.)

15        (725 ILCS 5/122-6.1 new)
16        Sec. 122-6.1.  Actual innocence hearing.
17        (a)  At   a   hearing  on  a  petition  that  asserts  an
18    independent  claim  of  actual  innocence  based   on   newly
19    discovered  evidence, the burden shall be on the defendant to
20    prove his or her actual innocence.  At  no  time  in  such  a
21    hearing  shall  the defendant be entitled to a presumption of
22    innocence.  It shall be presumed that the verdict rendered at
23    the trial in which the defendant was convicted  was  correct,
24    and  the  burden  shall  be  on  the  defendant to rebut this
25    presumption.
26        (b)  The defendant, at an actual innocence hearing, shall
27    be required to prove his or her actual innocence by clear and
28    convincing evidence.
29        (c)  In an actual innocence hearing, the court shall make
30    a determination about the reliability  and  admissibility  of
31    the  newly discovered evidence.  Only if the court finds that
32    the evidence of the defendant's actual innocence is clear and
 
                            -5-              LRB9201177ARsbam
 1    convincing and of such a conclusive character that  it  would
 2    likely  change  the result of the defendant's trial shall the
 3    court order a new trial for the defendant.".

[ Top ]