Sen. Donne E. Trotter

Filed: 4/24/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2781

2    AMENDMENT NO. ______. Amend Senate Bill 2781 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Civil Procedure is amended by
5changing Section 2-702 as follows:
 
6    (735 ILCS 5/2-702)
7    Sec. 2-702. Petition for a certificate of innocence that
8the petitioner was innocent of all offenses for which he or she
9was incarcerated.
10    (a) The General Assembly finds and declares that innocent
11persons who have been wrongly convicted of crimes in Illinois
12and subsequently imprisoned have been frustrated in seeking
13legal redress due to a variety of substantive and technical
14obstacles in the law and that such persons should have an
15available avenue to obtain a finding of innocence so that they
16may obtain relief through a petition in the Court of Claims.

 

 

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1The General Assembly further finds misleading the current legal
2nomenclature which compels an innocent person to seek a pardon
3for being wrongfully incarcerated. It is the intent of the
4General Assembly that the court, in exercising its discretion
5as permitted by law regarding the weight and admissibility of
6evidence submitted pursuant to this Section, shall, in the
7interest of justice, give due consideration to difficulties of
8proof caused by the passage of time, the death or
9unavailability of witnesses, the destruction of evidence or
10other factors not caused by such persons or those acting on
11their behalf.
12    (b) Any person convicted and subsequently imprisoned for
13one or more felonies by the State of Illinois which he or she
14did not commit may, under the conditions hereinafter provided,
15file a petition for certificate of innocence in the circuit
16court of the county in which the person was convicted. The
17petition shall request a certificate of innocence finding that
18the petitioner was innocent of all offenses for which he or she
19was incarcerated.
20    (b-5) The presumption of innocence is restored when: a
21conviction has been reversed or vacated, and the indictment or
22information has been dismissed; or a new trial has been ordered
23and the defendant has been found not guilty at the new trial or
24he or she has not been retried, and the indictment or
25information has been dismissed; or the statute, or the
26application thereof, upon which the indictment or information

 

 

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1was based has been found by a court to have violated the
2Constitution of the United States or the Constitution of the
3State of Illinois.
4    (c) In order to present the claim for certificate of
5innocence of an unjust conviction and imprisonment, the
6petitioner must attach to his or her petition documentation
7demonstrating that:
8        (1) he or she has been convicted of one or more
9    felonies by the State of Illinois and subsequently
10    sentenced to a term of imprisonment, and has served all or
11    any part of the sentence; and
12        (2) his or her judgment of conviction was reversed or
13    vacated, and the indictment or information dismissed or, if
14    a new trial was ordered, either he or she was found not
15    guilty at the new trial or he or she was not retried and
16    the indictment or information dismissed; or the statute, or
17    application thereof, on which the indictment or
18    information was based violated the Constitution of the
19    United States or the State of Illinois; and
20        (3) his or her claim is not time barred by the
21    provisions of subsection (i) of this Section.
22    (d) The petition shall state facts in sufficient detail to
23permit the court to find that the petitioner is likely to
24succeed at trial in proving that the petitioner is innocent of
25the offenses charged in the indictment or information or his or
26her acts or omissions charged in the indictment or information

 

 

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1did not constitute a felony or misdemeanor against the State of
2Illinois, and the petitioner did not by his or her own conduct
3voluntarily cause or bring about his or her conviction. The
4petition shall be verified by the petitioner.
5    (e) A copy of the petition shall be served on the Attorney
6General and the State's Attorney of the county where the
7conviction was had. The Attorney General and the State's
8Attorney of the county where the conviction was had shall have
9the right to intervene as parties.
10    (f) In any hearing seeking a certificate of innocence, the
11court may take judicial notice of prior sworn testimony or
12evidence admitted in the criminal proceedings related to the
13convictions which resulted in the alleged wrongful
14incarceration, if the petitioner was either represented by
15counsel at such prior proceedings or the right to counsel was
16knowingly waived.
17    (g) In order to obtain a certificate of innocence the
18petitioner must prove by a preponderance of evidence that:
19        (1) the petitioner was convicted of one or more
20    felonies by the State of Illinois and subsequently
21    sentenced to a term of imprisonment, and has served all or
22    any part of the sentence;
23        (2)(A) the judgment of conviction was reversed or
24    vacated, and the indictment or information dismissed or, if
25    a new trial was ordered, either the petitioner was found
26    not guilty at the new trial or the petitioner was not

 

 

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1    retried and the indictment or information dismissed; or (B)
2    the statute, or application thereof, on which the
3    indictment or information was based violated the
4    Constitution of the United States or the State of Illinois;
5    and
6        (3) the petitioner is innocent of the offenses charged
7    in the indictment or information or his or her acts or
8    omissions charged in the indictment or information did not
9    constitute a felony or misdemeanor against the State; and
10        (3) (4) the petitioner did not by his or her own
11    conduct voluntarily cause or bring about his or her
12    conviction.
13    (h) If the court finds that the petitioner is entitled to a
14judgment, it shall enter a certificate of innocence finding
15that the petitioner was innocent of all offenses for which he
16or she was incarcerated. Upon entry of the certificate of
17innocence or pardon from the Governor stating that such pardon
18was issued on the ground of innocence of the crime for which he
19or she was imprisoned, (1) the clerk of the court shall
20transmit a copy of the certificate of innocence to the clerk of
21the Court of Claims, together with the claimant's current
22address; and (2) the court shall enter an order expunging or
23sealing the record of arrest from the official records of the
24arresting authority and order that the records of the clerk of
25the circuit court and Department of State Police be sealed
26until further order of the court upon good cause shown or as

 

 

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1otherwise provided herein, and the name of the defendant
2obliterated from the official index requested to be kept by the
3circuit court clerk under Section 16 of the Clerks of Courts
4Act in connection with the arrest and conviction for the
5offense but the order shall not affect any index issued by the
6circuit court clerk before the entry of the order.
7    (i) Any person seeking a certificate of innocence under
8this Section based on the dismissal of an indictment or
9information or acquittal that occurred before the effective
10date of this amendatory Act of the 95th General Assembly shall
11file his or her petition within 2 years after the effective
12date of this amendatory Act of the 95th General Assembly. Any
13person seeking a certificate of innocence under this Section
14based on the dismissal of an indictment or information or
15acquittal that occurred on or after the effective date of this
16amendatory Act of the 95th General Assembly shall file his or
17her petition within 2 years after the dismissal.
18    (j) The decision to grant or deny a certificate of
19innocence shall be binding only with respect to claims filed in
20the Court of Claims and shall not have a res judicata effect on
21any other proceedings.
22(Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11.)
 
23    Section 99. Effective date. This Act takes effect upon
24becoming law.".