Public Act 90-0685 of the 90th General Assembly

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Public Act 90-0685

SB1426 Enrolled                                LRB9011373RCcd

    AN ACT in relation to criminal  defacement  of  a  school
building, amending named Acts.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section  5.  The Criminal Code  of  1961  is  amended  by
changing Section 21-1.3 as follows:

    (720 ILCS 5/21-1.3)
    Sec. 21-1.3. Criminal defacement of property.
    (a)  A  person  commits  criminal  defacement of property
when the person knowingly damages  the  property  of  another
without  his  or  her  consent  by  defacing,  deforming,  or
otherwise  damaging  the  property by the use of paint or any
other  similar  substance,  or  by  the  use  of  a   writing
instrument, etching tool, or any other similar device.
    (b)  Criminal   defacement  of  property  is  a  Class  A
misdemeanor for a first offense if the damage to the property
does not exceed $300. Criminal defacement of  property  is  a
Class  4  felony  for a second or subsequent conviction or if
the damage to the property exceeds $300. Criminal  defacement
of  property  is  a  Class 3 felony if the damage to property
exceeds $300 and the property damaged is a  school  building.
In  addition  to  any  other  sentence that may be imposed, a
court shall order any person convicted of criminal defacement
of property to perform community service for not less than 30
and  not  more  than  120  hours,  if  community  service  is
available in the jurisdiction. The  community  service  shall
include,  but  need not be limited to, the cleanup and repair
of the damage to property that was caused by the offense,  or
similar  damage  to  property  located in the municipality or
county in which the offense occurred. If the property damaged
is a school  building,  the  community  service  may  include
cleanup,   removal,  or  painting  over  the  defacement.  In
addition, whenever any person is placed on supervision for an
alleged offense under this Section, the supervision shall  be
conditioned upon the performance of the community service.
(Source: P.A. 88-406.)

    Section  10.  The  Unified Code of Corrections is amended
by changing Section 5-5-3 as follows:

    (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
    Sec. 5-5-3.  Disposition.
    (a)  Every  person  convicted  of  an  offense  shall  be
sentenced as provided in this Section.
    (b)  The   following   options   shall   be   appropriate
dispositions, alone or in combination, for all  felonies  and
misdemeanors other than those identified in subsection (c) of
this Section:
         (1)  A period of probation.
         (2)  A term of periodic imprisonment.
         (3)  A term of conditional discharge.
         (4)  A term of imprisonment.
         (5)  An order directing the offender to clean up and
    repair  the  damage,  if the offender was convicted under
    paragraph (h) of Section 21-1 of  the  Criminal  Code  of
    1961.
         (6)  A fine.
         (7)  An   order   directing  the  offender  to  make
    restitution to the victim under  Section  5-5-6  of  this
    Code.
         (8)  A  sentence of participation in a county impact
    incarceration program under Section 5-8-1.2 of this Code.
    Whenever an individual is sentenced for an offense  based
upon  an  arrest  for  a  violation  of Section 11-501 of the
Illinois Vehicle Code, or a  similar  provision  of  a  local
ordinance,   and   the   professional  evaluation  recommends
remedial or rehabilitative treatment  or  education,  neither
the treatment nor the education shall be the sole disposition
and  either  or  both may be imposed only in conjunction with
another disposition. The court shall monitor compliance  with
any remedial education or treatment recommendations contained
in  the professional evaluation.  Programs conducting alcohol
or other  drug  evaluation  or  remedial  education  must  be
licensed  by  the  Department of Human Services.  However, if
the individual is not a resident of Illinois, the  court  may
accept  an  alcohol  or  other  drug  evaluation  or remedial
education  program  in  the  state   of   such   individual's
residence.   Programs  providing  treatment  must be licensed
under  existing  applicable  alcoholism  and  drug  treatment
licensure standards.
    In addition to any other fine or penalty required by law,
any individual convicted of a violation of Section 11-501  of
the  Illinois  Vehicle  Code  or a similar provision of local
ordinance, whose  operation  of  a  motor  vehicle  while  in
violation  of  Section  11-501  or such ordinance proximately
caused an incident  resulting  in  an  appropriate  emergency
response,  shall  be required to make restitution to a public
agency for  the  costs  of  that  emergency  response.   Such
restitution  shall not exceed $500 per public agency for each
such emergency response.  For the purpose of this  paragraph,
emergency  response  shall  mean  any  incident  requiring  a
response  by: a police officer as defined under Section 1-162
of the Illinois Vehicle Code; a fireman carried on the  rolls
of  a regularly constituted fire department; and an ambulance
as defined  under  Section  4.05  of  the  Emergency  Medical
Services (EMS) Systems Act.
    Neither   a  fine  nor  restitution  shall  be  the  sole
disposition for a felony and either or both  may  be  imposed
only in conjunction with another disposition.
    (c) (1)  When a defendant is found guilty of first degree
    murder   the   State   may  either  seek  a  sentence  of
    imprisonment under Section 5-8-1 of this Code,  or  where
    appropriate seek a sentence of death under Section 9-1 of
    the Criminal Code of 1961.
         (2)  A  period  of  probation,  a  term  of periodic
    imprisonment  or  conditional  discharge  shall  not   be
    imposed  for  the  following  offenses.  The  court shall
    sentence the offender to not less than the  minimum  term
    of  imprisonment set forth in this Code for the following
    offenses, and may order a fine or restitution or both  in
    conjunction with such term of imprisonment:
              (A)  First   degree   murder  where  the  death
         penalty is not imposed.
              (B)  Attempted first degree murder.
              (C)  A Class X felony.
              (D)  A violation of Section 401.1 or 407 of the
         Illinois Controlled Substances Act, or  a  violation
         of  subdivision  (c)(2)  of  Section 401 of that Act
         which relates to more than 5 grams  of  a  substance
         containing cocaine or an analog thereof.
              (E)  A  violation  of  Section  5.1 or 9 of the
         Cannabis Control Act.
              (F)  A  Class  2  or  greater  felony  if   the
         offender  had been convicted of a Class 2 or greater
         felony within 10 years  of  the  date  on  which  he
         committed   the   offense  for  which  he  is  being
         sentenced.
              (G)  Residential burglary.
              (H)  Criminal   sexual   assault,   except   as
         otherwise  provided  in  subsection  (e)   of   this
         Section.
              (I)  Aggravated battery of a senior citizen.
              (J)  A  forcible  felony  if  the  offense  was
         related to the activities of an organized gang.
              Before  July  1, 1994, for the purposes of this
         paragraph, "organized gang" means an association  of
         5  or  more  persons, with an established hierarchy,
         that  encourages  members  of  the  association   to
         perpetrate crimes or provides support to the members
         of the association who do commit crimes.
              Beginning  July  1,  1994,  for the purposes of
         this paragraph, "organized  gang"  has  the  meaning
         ascribed  to  it  in  Section  10  of  the  Illinois
         Streetgang Terrorism Omnibus Prevention Act.
              (K)  Vehicular hijacking.
              (L)  A  second or subsequent conviction for the
         offense of hate crime when  the  underlying  offense
         upon  which  the  hate  crime  is  based  is  felony
         aggravated assault or felony mob action.
              (M)  A  second or subsequent conviction for the
         offense of institutional vandalism if the damage  to
         the property exceeds $300.
              (N)  A  Class  3  felony violation of paragraph
         (1) of subsection (a) of Section 2  of  the  Firearm
         Owners Identification Card Act.
              (O)  A  violation  of  Section  12-6.1  of  the
         Criminal Code of 1961.
              (P)  A  violation  of  paragraph (1), (2), (3),
         (4), (5),  or  (7)  of  subsection  (a)  of  Section
         11-20.1 of the Criminal Code of 1961.
         (3)  A minimum term of imprisonment of not less than
    48 consecutive hours or 100 hours of community service as
    may  be  determined  by  the court shall be imposed for a
    second or subsequent violation committed within  5  years
    of a previous violation of Section 11-501 of the Illinois
    Vehicle Code or a similar provision of a local ordinance.
         (4)  A minimum term of imprisonment of not less than
    7  consecutive days or 30 days of community service shall
    be imposed for a violation of paragraph  (c)  of  Section
    6-303 of the Illinois Vehicle Code.
         (4.1)  A  minimum  term  of  30  consecutive days of
    imprisonment, 40 days of 24 hour periodic imprisonment or
    720 hours of community service, as may be  determined  by
    the  court,  shall  be imposed for a violation of Section
    11-501 of the Illinois Vehicle Code during  a  period  in
    which  the  defendant's driving privileges are revoked or
    suspended, where the revocation or suspension was  for  a
    violation  of  Section 11-501 or Section 11-501.1 of that
    Code.
         (5)  The court may sentence an offender convicted of
    a business offense or a petty offense or a corporation or
    unincorporated association convicted of any offense to:
              (A)  a period of conditional discharge;
              (B)  a fine;
              (C)  make  restitution  to  the  victim   under
         Section 5-5-6 of this Code.
         (6)  In  no case shall an offender be eligible for a
    disposition of probation or conditional discharge  for  a
    Class  1  felony committed while he was serving a term of
    probation or conditional discharge for a felony.
         (7)  When  a  defendant  is  adjudged   a   habitual
    criminal  under Article 33B of the Criminal Code of 1961,
    the court shall sentence  the  defendant  to  a  term  of
    natural life imprisonment.
         (8)  When  a defendant, over the age of 21 years, is
    convicted of a Class 1 or Class 2  felony,  after  having
    twice  been  convicted  of  any  Class 2 or greater Class
    felonies in Illinois, and  such  charges  are  separately
    brought  and  tried  and arise out of different series of
    acts, such defendant shall be  sentenced  as  a  Class  X
    offender.  This  paragraph shall not apply unless (1) the
    first felony was committed after the  effective  date  of
    this  amendatory  Act  of 1977; and (2) the second felony
    was committed after conviction on the first; and (3)  the
    third  felony  was  committed  after  conviction  on  the
    second.
         (9)  A defendant convicted of a second or subsequent
    offense  of  ritualized abuse of a child may be sentenced
    to a term of natural life imprisonment.
         (10)  Beginning  July  1,  1994,  unless  sentencing
    under Section 33B-1 is applicable, a term of imprisonment
    of not less than 15 years nor more than 50 years shall be
    imposed on a defendant who violates Section 33A-2 of  the
    Criminal  Code  of  1961 with a firearm, when that person
    has been convicted in any state or federal court of 3  or
    more  of  the  following  offenses: treason, first degree
    murder, second degree murder, aggravated criminal  sexual
    assault,  criminal  sexual  assault,  robbery,  burglary,
    arson,  kidnaping,  aggravated battery resulting in great
    bodily harm or permanent disability or disfigurement,  or
    a  violation of Section 401(a) of the Illinois Controlled
    Substances Act, when  the  third  offense  was  committed
    after  conviction  on  the second, the second offense was
    committed  after  conviction  on  the  first,   and   the
    violation  of  Section 33A-2 of the Criminal Code of 1961
    was committed after conviction on the third.
         (11)  Beginning July 1, 1994, a term of imprisonment
    of not less than 10 years and  not  more  than  30  years
    shall  be  imposed  on  a  defendant who violates Section
    33A-2 with a Category I  weapon  where  the  offense  was
    committed in any school, or any conveyance owned, leased,
    or  contracted  by  a  school to transport students to or
    from school or a school related  activity,  on  the  real
    property  comprising any school or public park, and where
    the offense was related to the activities of an organized
    gang.   For  the  purposes  of   this   paragraph   (11),
    "organized  gang"  has  the  meaning  ascribed  to  it in
    Section 10 of the Illinois Streetgang  Terrorism  Omnibus
    Prevention Act.
    (d)  In  any  case in which a sentence originally imposed
is vacated, the case shall be remanded to  the  trial  court.
The  trial  court shall hold a hearing under Section 5-4-1 of
the Unified Code of Corrections which may include evidence of
the defendant's life, moral character and  occupation  during
the  time  since the original sentence was passed.  The trial
court shall then impose sentence  upon  the  defendant.   The
trial  court  may  impose  any sentence which could have been
imposed at the original trial subject to Section 5-5-4 of the
Unified Code of Corrections.
    (e)  In  cases  where  prosecution  for  criminal  sexual
assault or aggravated criminal  sexual  abuse  under  Section
12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
conviction of a defendant who was  a  family  member  of  the
victim  at  the  time  of  the commission of the offense, the
court shall consider the safety and welfare of the victim and
may impose a sentence of probation only where:
         (1)  the  court  finds  (A)  or  (B)  or  both   are
    appropriate:
              (A)  the  defendant  is  willing  to  undergo a
         court approved  counseling  program  for  a  minimum
         duration of 2 years; or
              (B)  the defendant is willing to participate in
         a  court  approved plan including but not limited to
         the defendant's:
                   (i)  removal from the household;
                   (ii)  restricted contact with the victim;
                   (iii)  continued financial support of  the
              family;
                   (iv)  restitution  for  harm  done  to the
              victim; and
                   (v)  compliance with  any  other  measures
              that the court may deem appropriate; and
         (2)  the  court  orders the defendant to pay for the
    victim's counseling services,  to  the  extent  that  the
    court finds, after considering the defendant's income and
    assets,  that  the  defendant  is  financially capable of
    paying for such services, if  the  victim  was  under  18
    years  of  age  at the time the offense was committed and
    requires counseling as a result of the offense.
    Probation may be revoked or modified pursuant to  Section
5-6-4;  except where the court determines at the hearing that
the defendant violated a condition of his  or  her  probation
restricting  contact  with the victim or other family members
or commits another offense with the victim  or  other  family
members, the court shall revoke the defendant's probation and
impose a term of imprisonment.
    For  the  purposes  of  this Section, "family member" and
"victim" shall have the meanings ascribed to them in  Section
12-12 of the Criminal Code of 1961.
    (f)  This  Article  shall  not  deprive  a court in other
proceedings to order a forfeiture of property, to suspend  or
cancel  a  license,  to  remove  a  person from office, or to
impose any other civil penalty.
    (g)  Whenever a defendant  is  convicted  of  an  offense
under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
12-15  or  12-16  of the Criminal Code of 1961, the defendant
shall  undergo  medical  testing  to  determine  whether  the
defendant has any sexually transmissible disease, including a
test for infection with human immunodeficiency virus (HIV) or
any   other   identified   causative   agent   of    acquired
immunodeficiency  syndrome  (AIDS).   Any  such  medical test
shall be performed only  by  appropriately  licensed  medical
practitioners  and  may  include  an  analysis  of any bodily
fluids as well as an examination of the  defendant's  person.
Except as otherwise provided by law, the results of such test
shall  be kept strictly confidential by all medical personnel
involved in the testing and must be personally delivered in a
sealed envelope to the  judge  of  the  court  in  which  the
conviction  was entered for the judge's inspection in camera.
Acting in accordance with the best interests  of  the  victim
and  the  public,  the  judge  shall  have  the discretion to
determine to whom, if anyone, the results of the testing  may
be revealed. The court shall notify the defendant of the test
results.  The court shall also notify the victim if requested
by  the  victim, and if the victim is under the age of 15 and
if requested by the victim's parents or legal  guardian,  the
court  shall notify the victim's parents or legal guardian of
the test results.  The court shall provide information on the
availability of HIV testing and counseling at  Department  of
Public  Health  facilities to all parties to whom the results
of the testing are revealed  and  shall  direct  the  State's
Attorney  to  provide  the  information  to  the  victim when
possible. A State's Attorney may petition the court to obtain
the results of any HIV test administered under this  Section,
and  the  court  shall  grant  the  disclosure if the State's
Attorney shows it is relevant in order to prosecute a  charge
of  criminal transmission of HIV under Section 12-16.2 of the
Criminal Code of 1961 against the defendant.  The court shall
order that the cost of any such test shall  be  paid  by  the
county  and  may  be  taxed  as  costs  against the convicted
defendant.
    (g-5)  When  an  inmate  is  tested   for   an   airborne
communicable   disease,   as   determined   by  the  Illinois
Department of Public Health  including  but  not  limited  to
tuberculosis,  the  results  of  the test shall be personally
delivered by the warden or his or her designee  in  a  sealed
envelope  to  the judge of the court in which the inmate must
appear for the judge's inspection in camera if  requested  by
the  judge.   Acting in accordance with the best interests of
those in the courtroom, the judge shall have  the  discretion
to  determine  what  if  any  precautions need to be taken to
prevent transmission of the disease in the courtroom.
    (h)  Whenever a defendant  is  convicted  of  an  offense
under  Section  1 or 2 of the Hypodermic Syringes and Needles
Act, the defendant shall undergo medical testing to determine
whether   the   defendant   has   been   exposed   to   human
immunodeficiency  virus  (HIV)  or   any   other   identified
causative agent of acquired immunodeficiency syndrome (AIDS).
Except as otherwise provided by law, the results of such test
shall  be kept strictly confidential by all medical personnel
involved in the testing and must be personally delivered in a
sealed envelope to the  judge  of  the  court  in  which  the
conviction  was entered for the judge's inspection in camera.
Acting in accordance with the best interests of  the  public,
the  judge shall have the discretion to determine to whom, if
anyone, the results of the testing may be revealed. The court
shall notify the defendant of  a  positive  test  showing  an
infection  with  the  human immunodeficiency virus (HIV). The
court shall provide information on the  availability  of  HIV
testing   and  counseling  at  Department  of  Public  Health
facilities to all parties to whom the results of the  testing
are revealed and shall direct the State's Attorney to provide
the  information  to  the  victim  when  possible.  A State's
Attorney may petition the court to obtain the results of  any
HIV  test  administered  under  this   Section, and the court
shall grant the disclosure if the State's Attorney  shows  it
is  relevant  in  order  to  prosecute  a  charge of criminal
transmission of HIV under Section  12-16.2  of  the  Criminal
Code  of  1961  against  the defendant. The court shall order
that the cost of any such test shall be paid  by  the  county
and may be taxed as costs against the convicted defendant.
    (i)  All  fines  and penalties imposed under this Section
for any violation of Chapters 3, 4, 6, and 11 of the Illinois
Vehicle Code, or a similar provision of  a  local  ordinance,
and any violation of the Child Passenger Protection Act, or a
similar  provision  of  a local ordinance, shall be collected
and disbursed by the circuit clerk as provided under  Section
27.5 of the Clerks of Courts Act.
    (j)  In  cases  when  prosecution  for  any  violation of
Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
12-16  of  the  Criminal  Code  of 1961, any violation of the
Illinois Controlled Substances Act, or any violation  of  the
Cannabis  Control Act results in conviction, a disposition of
court supervision, or an order  of  probation  granted  under
Section  10 of the Cannabis Control Act or Section 410 of the
Illinois Controlled Substance Act of a defendant,  the  court
shall  determine  whether  the  defendant  is  employed  by a
facility or center as defined under the  Child  Care  Act  of
1969,  a public or private elementary or secondary school, or
otherwise works with children under 18  years  of  age  on  a
daily  basis.   When  a  defendant  is so employed, the court
shall order the Clerk of the Court to  send  a  copy  of  the
judgment  of  conviction or order of supervision or probation
to  the  defendant's  employer  by  certified  mail.  If  the
employer of the defendant is a school, the Clerk of the Court
shall direct the  mailing  of  a  copy  of  the  judgment  of
conviction  or  order  of  supervision  or  probation  to the
appropriate regional superintendent of schools.  The regional
superintendent of schools shall notify  the  State  Board  of
Education of any notification under this subsection.
    (j-5)  A  defendant  at  least  17  years  of  age who is
convicted of  a  felony  and  who  has  not  been  previously
convicted  of a misdemeanor or felony and who is sentenced to
a  term  of  imprisonment  in  the  Illinois  Department   of
Corrections  shall  as  a condition of his or her sentence be
required by the court to attend educational courses  designed
to  prepare  the  defendant  for a high school diploma and to
work toward a high school diploma or to work  toward  passing
the high school level Test of General Educational Development
(GED)  or  to  work  toward  completing a vocational training
program offered by  the  Department  of  Corrections.   If  a
defendant fails to complete the educational training required
by  his or her sentence during the term of incarceration, the
Prisoner Review Board shall,  as  a  condition  of  mandatory
supervised  release, require the defendant, at his or her own
expense, to pursue a course of study  toward  a  high  school
diploma  or  passage  of  the  GED test.  The Prisoner Review
Board shall revoke the  mandatory  supervised  release  of  a
defendant  who  wilfully fails to comply with this subsection
(j-5) upon his or her release from  confinement  in  a  penal
institution  while  serving  a  mandatory  supervised release
term; however, the inability of the defendant after making  a
good  faith  effort  to  obtain  financial aid or pay for the
educational training shall not be deemed a wilful failure  to
comply.    The  Prisoner  Review  Board  shall  recommit  the
defendant whose mandatory supervised release  term  has  been
revoked  under  this  subsection (j-5) as provided in Section
3-3-9.  This subsection (j-5) does not apply to  a  defendant
who  has a high school diploma or has successfully passed the
GED test. This subsection (j-5) does not apply to a defendant
who is determined by the court to be developmentally disabled
or otherwise mentally incapable of completing the educational
or vocational program.
    (k)  A court may not impose a sentence or disposition for
a felony or misdemeanor that requires  the  defendant  to  be
implanted  or  injected  with  or  to  use  any form of birth
control.
    (l)(A)  Except as provided in paragraph (C) of subsection
(l), whenever a defendant, who is an alien as defined by  the
Immigration  and  Nationality Act, is convicted of any felony
or  misdemeanor  offense,  the  court  after  sentencing  the
defendant may, upon motion  of  the  State's  Attorney,  hold
sentence  in abeyance and remand the defendant to the custody
of the Attorney General of the United States or  his  or  her
designated agent to be deported when:
         (1)  a  final  order  of deportation has been issued
    against the defendant pursuant to proceedings  under  the
    Immigration and Nationality Act, and
         (2)  the  deportation  of  the  defendant  would not
    deprecate the seriousness of the defendant's conduct  and
    would not be inconsistent with the ends of justice.
    Otherwise,  the  defendant shall be sentenced as provided
in this Chapter V.
    (B)  If the defendant has already been  sentenced  for  a
felony   or  misdemeanor  offense,  or  has  been  placed  on
probation under Section 10 of the  Cannabis  Control  Act  or
Section  410  of  the Illinois Controlled Substances Act, the
court may, upon motion of the State's Attorney to suspend the
sentence imposed, commit the defendant to the custody of  the
Attorney   General  of  the  United  States  or  his  or  her
designated agent when:
         (1)  a final order of deportation  has  been  issued
    against  the  defendant pursuant to proceedings under the
    Immigration and Nationality Act, and
         (2)  the deportation  of  the  defendant  would  not
    deprecate  the seriousness of the defendant's conduct and
    would not be inconsistent with the ends of justice.
    (C)  This subsection (l) does not apply to offenders  who
are  subject to the provisions of paragraph (2) of subsection
(a) of Section 3-6-3.
    (D)  Upon motion of the State's Attorney, if a  defendant
sentenced  under  this Section returns to the jurisdiction of
the United States, the defendant shall be recommitted to  the
custody  of  the  county  from which he or she was sentenced.
Thereafter,  the  defendant  shall  be  brought  before   the
sentencing  court,  which  may  impose  any sentence that was
available  under  Section  5-5-3  at  the  time  of   initial
sentencing.  In addition, the defendant shall not be eligible
for additional good conduct credit for meritorious service as
provided under Section 3-6-6.
    (m)  A   person   convicted  of  criminal  defacement  of
property under Section 21-1.3 of the Criminal Code  of  1961,
in  which  the  property damage exceeds $300 and the property
damaged is a school building, shall  be  ordered  to  perform
community  service  that  may  include  cleanup,  removal, or
painting over the defacement.
(Source: P.A.  89-8,  eff.  3-21-95;  89-314,  eff.   1-1-96;
89-428,  eff.  12-13-95;  89-462,  eff. 5-29-96; 89-477, eff.
6-18-96; 89-507, eff. 7-1-97; 89-545, eff.  7-25-96;  89-587,
eff.  7-31-96;  89-627,  eff.  1-1-97;  89-688,  eff. 6-1-97;
90-14, eff. 7-1-97; 90-68, eff. 7-8-97.)

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