Illinois General Assembly - Full Text of HB3333
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Full Text of HB3333  93rd General Assembly

HB3333 93rd General Assembly


093_HB3333

 
                                     LRB093 10329 RLC 10583 b

 1        AN ACT in relation to criminal convictions.

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

 4        Section  5. The Criminal Identification Act is amended by
 5    adding Sections 5.2, 5.3, and 5.4 as follows:

 6        (20 ILCS 2630/5.2 new)
 7        Sec. 5.2. Application for order setting aside conviction.
 8        (a) Except as provided in subsection (b), a person who is
 9    convicted  of  not  more  than  one  offense  may   file   an
10    application  with  the  convicting  court for the entry of an
11    order setting aside the conviction.
12        (b) A person may not apply to have set aside, and a judge
13    may not set aside, a conviction for a felony  for  which  the
14    maximum  punishment  is  life  imprisonment  or an attempt to
15    commit a felony for which  the  maximum  punishment  is  life
16    imprisonment,  a  conviction  for  a  violation  or attempted
17    violation of Section 12-13, 12-14, 12-14.1, 12-15, 12-16,  or
18    12-16.2  of  the Criminal Code of 1961, or a conviction for a
19    traffic offense.
20        (c) An application may not be  filed  until  at  least  5
21    years  following  completion  of any term of imprisonment for
22    that conviction.
23        (d) The application is invalid  unless  it  contains  the
24    following  information and is signed under oath by the person
25    whose conviction is to be set aside:
26             (1)  The  full  name  and  current  address  of  the
27        applicant.
28             (2) A certified record of the conviction that is  to
29        be set aside.
30             (3)  A  statement  that  the  applicant has not been
31        convicted of an offense other than the one sought  to  be
 
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 1        set aside as a result of this application.
 2             (4)  A  statement  as  to  whether the applicant has
 3        previously filed an application to set aside this or  any
 4        other  conviction  and,  if  so,  the  disposition of the
 5        application.
 6             (5) A statement as to whether the applicant has  any
 7        other  criminal  charge pending against him or her in any
 8        court in the United States or in any other country.
 9             (6) A consent to the use  of  the  nonpublic  record
10        created  under  Section  5.4  to the extent authorized by
11        Section 5.4.
12        (e) The applicant shall submit a copy of the  application
13    and  2  complete  sets  of  fingerprints to the Department of
14    State Police. The Department of State  Police  shall  compare
15    those  fingerprints  with  the  records  of  the  Department,
16    including the nonpublic record created under Section 5.4, and
17    shall  forward  a complete set of fingerprints to the Federal
18    Bureau of Investigation for a  comparison  with  the  records
19    available  to  that  agency.  The  Department of State Police
20    shall report to the court in which the application  is  filed
21    the  information  contained  in the Department's records with
22    respect to any pending charges  against  the  applicant,  any
23    record  of conviction of the applicant, and the setting aside
24    of any conviction of the applicant and shall  report  to  the
25    court  any  similar  information  obtained  from  the Federal
26    Bureau of Investigation. The  court  may  not  act  upon  the
27    application  until the Department of State Police reports the
28    information required by this subsection to the court.
29        (f)  The  copy  of  the  application  submitted  to   the
30    Department  of  State  Police  under  subsection (e) shall be
31    accompanied by a fee of $50 payable to the State of Illinois,
32    which shall be used by the  Department  of  State  Police  to
33    defray the expenses incurred in processing the application.
34        (g)  A  copy  of the application shall be served upon the
 
                            -3-      LRB093 10329 RLC 10583 b
 1    Attorney General and  upon  the  office  of  the  prosecuting
 2    attorney  who  prosecuted the crime, and an opportunity shall
 3    be given to the  Attorney  General  and  to  the  prosecuting
 4    attorney  to  contest  the application. If the conviction was
 5    for a violent crime, the prosecuting  attorney  shall  notify
 6    the  victim  of the violent crime of the application pursuant
 7    to subsection (f) of Section  4.5  of  the  Rights  of  Crime
 8    Victims and Witnesses Act. The notice shall be by first-class
 9    mail  to  the victim's last known address. The victim has the
10    right to appear at any proceeding under this  Act  concerning
11    that conviction and to make a written or oral statement.
12        (h)  Upon  the  hearing  of the application the court may
13    require the filing of affidavits and the taking of proofs  as
14    it considers proper.
15        (i)  If  the  court determines that the circumstances and
16    behavior of the applicant from the date  of  the  applicant's
17    conviction  to  the filing of the application warrant setting
18    aside the conviction and that setting aside the conviction is
19    consistent with the public welfare, the court  may  enter  an
20    order  setting  aside  the conviction. The setting aside of a
21    conviction under this Act is a privilege and conditional  and
22    is not a right.
23        (j) As used in this Section and Sections 5.3 and 5.4:
24        "Traffic  offense"  means  a  violation  of  the Illinois
25    Vehicle Code or a similar provision of a local ordinance.
26        "Violent crime" has the meaning ascribed to it in Section
27    3 of the Rights of Crime Victims and Witnesses Act.
28        "Victim" has the meaning ascribed to it in Section  3  of
29    the Rights of Crime Victims and Witnesses Act.

30        (20 ILCS 2630/5.3 new)
31        Sec. 5.3. Entry of order.
32        (a)  Upon  entry of an order pursuant to Section 5.2, the
33    applicant, for purposes of the law, shall be  considered  not
 
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 1    to have been previously convicted, except as provided in this
 2    Section and Section 5.4.
 3        (b) The applicant is not entitled to the remission of any
 4    fine,  costs,  or  other  money  paid  as  a consequence of a
 5    conviction that is set aside.
 6        (c) If the conviction set aside pursuant to this  Act  is
 7    for a sex offense as defined in Section 2 of the Sex Offender
 8    Registration  Act,  the  applicant is considered to have been
 9    convicted of that offense for purposes of  the  Sex  Offender
10    Registration Act.
11        (d)  This  Act does not affect the right of the applicant
12    to rely upon the conviction to bar subsequent proceedings for
13    the same offense.
14        (e) This Act does not affect the right of a victim  of  a
15    crime to prosecute or defend a civil action for damages.
16        (f)  This  Act  does  not  create  a right to commence an
17    action for damages for incarceration under the sentence  that
18    the  applicant  served  before  a  conviction  was  set aside
19    pursuant to this Act.
20        (g) A person may have only one conviction set aside under
21    this Act.

22        (20 ILCS 2630/5.4 new)
23        Sec. 5.4. Sending copy of order to arresting  agency  and
24    Department of State Police.
25        (a)  Upon  the entry of an order pursuant to Section 5.2,
26    the court shall send a copy of the  order  to  the  arresting
27    agency and the Department of State Police.
28        (b)  The  Department  of  State  Police  shall  retain  a
29    nonpublic  record of the order setting aside a conviction and
30    of the record of the arrest,  fingerprints,  conviction,  and
31    sentence  of  the  applicant  in  the case to which the order
32    applies. Except as provided in subsection (c), this nonpublic
33    record shall be made available only to a court  of  competent
 
                            -5-      LRB093 10329 RLC 10583 b
 1    jurisdiction,  an  agency  of  the  judicial  branch of State
 2    government, a law enforcement agency, a prosecuting attorney,
 3    the Attorney General, or the Governor upon request  and  only
 4    for the following purposes:
 5             (1)  Consideration in a licensing function conducted
 6        by an agency of the judicial branch of State government.
 7             (2)  To  show  that  a  person  who  has  filed   an
 8        application  to set aside a conviction has previously had
 9        a conviction set aside pursuant to this Act.
10             (3) The court's  consideration  in  determining  the
11        sentence  to  be imposed upon conviction for a subsequent
12        offense that is punishable as a felony or by imprisonment
13        for more than one year.
14             (4) Consideration by the Governor if a person  whose
15        conviction  has  been  set aside applies for a pardon for
16        another offense.
17             (5) Consideration by a law enforcement agency  if  a
18        person  whose  conviction  has been set aside applies for
19        employment with the law enforcement agency.
20             (6)  Consideration  by  a  court,  law   enforcement
21        agency,  prosecuting attorney, or the Attorney General in
22        determining  whether  an  individual   required   to   be
23        registered  under  the  Sex Offender Registration Act has
24        violated that Act,  or  for  use  in  a  prosecution  for
25        violating that Act.
26        (c)   A  copy  of  the  nonpublic  record  created  under
27    subsection  (b)  shall  be  provided  to  the  person   whose
28    conviction  is set aside under this Act upon payment of a fee
29    determined and charged by the Department of State  Police  in
30    the  same  manner  as  the fee prescribed in Section 6 of the
31    Freedom of Information Act.
32        (d) The nonpublic record maintained under subsection  (b)
33    is  exempt  from  disclosure under the Freedom of Information
34    Act.
 
                            -6-      LRB093 10329 RLC 10583 b
 1        (e) Except as provided in subsection (b), a person, other
 2    than the applicant, who knows or should  have  known  that  a
 3    conviction was set aside under this Section and who divulges,
 4    uses,  or  publishes  information concerning a conviction set
 5    aside under this section is guilty of a Class  B  misdemeanor
 6    punishable  by  imprisonment  for  not more than 90 days or a
 7    fine of not more than $500, or both.

 8        Section 10.  The Rights of Crime  Victims  and  Witnesses
 9    Act is amended by changing Section 4.5 as follows:

10        (725 ILCS 120/4.5)
11        Sec.  4.5.  Procedures  to  implement the rights of crime
12    victims.   To  afford  crime  victims   their   rights,   law
13    enforcement, prosecutors, judges and corrections will provide
14    information, as appropriate of the following procedures:
15        (a)  At  the request of the crime victim, law enforcement
16    authorities investigating the case shall  provide  notice  of
17    the  status  of  the  investigation, except where the State's
18    Attorney determines that disclosure of such information would
19    unreasonably interfere with  the  investigation,  until  such
20    time   as   the  alleged  assailant  is  apprehended  or  the
21    investigation is closed.
22        (b)  The office of the State's Attorney:
23             (1)  shall  provide  notice   of   the   filing   of
24        information,  the  return  of  an  indictment  by which a
25        prosecution for any violent crime is  commenced,  or  the
26        filing   of  a  petition  to  adjudicate  a  minor  as  a
27        delinquent for a violent crime;
28             (2)  shall provide notice of  the  date,  time,  and
29        place of trial;
30             (3)  or  victim  advocate  personnel  shall  provide
31        information  of  social services and financial assistance
32        available for victims of crime, including information  of
 
                            -7-      LRB093 10329 RLC 10583 b
 1        how to apply for these services and assistance;
 2             (4)  shall  assist  in  having  any  stolen or other
 3        personal property held by law enforcement authorities for
 4        evidentiary or other purposes returned  as  expeditiously
 5        as  possible,  pursuant  to  the  procedures  set  out in
 6        Section 115-9 of the Code of Criminal Procedure of 1963;
 7             (5)  or  victim  advocate  personnel  shall  provide
 8        appropriate employer intercession services to ensure that
 9        employers of victims will  cooperate  with  the  criminal
10        justice system in order to minimize an employee's loss of
11        pay and other benefits resulting from court appearances;
12             (6)  shall provide information whenever possible, of
13        a  secure waiting area during court proceedings that does
14        not require victims to be in close proximity to defendant
15        or juveniles  accused  of  a  violent  crime,  and  their
16        families and friends;
17             (7)  shall provide notice to the crime victim of the
18        right   to   have  a  translator  present  at  all  court
19        proceedings;
20             (8)  in the case of the death  of  a  person,  which
21        death  occurred  in the same transaction or occurrence in
22        which acts occurred for which a defendant is charged with
23        an offense, shall notify the  spouse,  parent,  child  or
24        sibling  of  the decedent of the date of the trial of the
25        person or persons allegedly responsible for the death;
26             (9)  shall inform the victim of the  right  to  have
27        present at all court proceedings, subject to the rules of
28        evidence,  an  advocate  or  other  support person of the
29        victim's choice, and the right to retain an attorney,  at
30        the  victim's own expense, who, upon written notice filed
31        with the clerk of the court and State's Attorney,  is  to
32        receive  copies  of all notices, motions and court orders
33        filed thereafter in the case, in the same  manner  as  if
34        the victim were a named party in the case; and
 
                            -8-      LRB093 10329 RLC 10583 b
 1             (10)  at  the  sentencing  hearing shall make a good
 2        faith attempt to  explain  the  minimum  amount  of  time
 3        during  which  the  defendant  may actually be physically
 4        imprisoned.  The Office of  the  State's  Attorney  shall
 5        further  notify  the crime victim of the right to request
 6        from the Prisoner Review Board information concerning the
 7        release of the defendant  under  subparagraph  (d)(1)  of
 8        this Section; and
 9             (11)  shall  request  restitution  at sentencing and
10        shall consider restitution in any  plea  negotiation,  as
11        provided by law.
12        (c)  At  the  written  request  of  the crime victim, the
13    office of the State's Attorney shall:
14             (1)  provide notice a reasonable time in advance  of
15        the following court proceedings: preliminary hearing, any
16        hearing  the  effect  of  which  may  be  the  release of
17        defendant from custody, or to  alter  the  conditions  of
18        bond  and the sentencing hearing.  The crime victim shall
19        also  be  notified  of  the  cancellation  of  the  court
20        proceeding in  sufficient  time,  wherever  possible,  to
21        prevent an unnecessary appearance in court;
22             (2)  provide  notice  within a reasonable time after
23        receipt of notice from the custodian, of the  release  of
24        the  defendant  on  bail  or personal recognizance or the
25        release from detention of a minor who has  been  detained
26        for a violent crime;
27             (3)  explain in nontechnical language the details of
28        any  plea  or verdict of a defendant, or any adjudication
29        of a juvenile as a delinquent for a violent crime;
30             (4)  where practical, consult with the crime  victim
31        before  the Office of the State's Attorney makes an offer
32        of a  plea  bargain  to  the  defendant  or  enters  into
33        negotiations  with  the  defendant  concerning a possible
34        plea agreement, and shall  consider  the  written  victim
 
                            -9-      LRB093 10329 RLC 10583 b
 1        impact  statement,  if  prepared prior to entering into a
 2        plea agreement;
 3             (5)  provide notice of the ultimate  disposition  of
 4        the  cases  arising from an indictment or an information,
 5        or a  petition  to  have  a  juvenile  adjudicated  as  a
 6        delinquent for a violent crime;
 7             (6)  provide  notice  of  any  appeal  taken  by the
 8        defendant  and  information  on  how   to   contact   the
 9        appropriate agency handling the appeal;
10             (7)  provide    notice    of    any    request   for
11        post-conviction  review  filed  by  the  defendant  under
12        Article 122 of the Code of Criminal  Procedure  of  1963,
13        and of the date, time and place of any hearing concerning
14        the  petition.   Whenever possible, notice of the hearing
15        shall be given in advance;
16             (8)  forward a copy of any statement presented under
17        Section 6 to the Prisoner Review Board to  be  considered
18        by the Board in making its determination under subsection
19        (b) of Section 3-3-8 of the Unified Code of Corrections.
20        (d) (1)  The  Prisoner Review Board shall inform a victim
21        or any other concerned citizen, upon written request,  of
22        the  prisoner's  release  on parole, mandatory supervised
23        release, electronic detention, work  release  or  by  the
24        custodian  of  the  discharge  of  any individual who was
25        adjudicated a delinquent for a violent crime  from  State
26        custody  and  by the sheriff of the appropriate county of
27        any such person's final discharge  from  county  custody.
28        The  Prisoner  Review  Board, upon written request, shall
29        provide to a victim or  any  other  concerned  citizen  a
30        recent  photograph  of  any person convicted of a felony,
31        upon his or her release from custody. The Prisoner Review
32        Board, upon written request, shall inform a victim or any
33        other concerned citizen when feasible  at  least  7  days
34        prior  to the prisoner's release on furlough of the times
 
                            -10-     LRB093 10329 RLC 10583 b
 1        and dates of such furlough.  Upon written request by  the
 2        victim  or  any  other  concerned  citizen,  the  State's
 3        Attorney  shall  notify  the person once of the times and
 4        dates of release of  a  prisoner  sentenced  to  periodic
 5        imprisonment.   Notification  shall  be based on the most
 6        recent information as  to  victim's  or  other  concerned
 7        citizen's  residence  or  other location available to the
 8        notifying authority. For purposes of this  paragraph  (1)
 9        of subsection (d), "concerned citizen" includes relatives
10        of  the  victim,  friends of the victim, witnesses to the
11        crime, or any other person associated with the victim  or
12        prisoner.
13             (2)  When  the  defendant  has been committed to the
14        Department of Human Services pursuant to Section 5-2-4 or
15        any other provision of the Unified Code  of  Corrections,
16        the  victim  may  request to be notified by the releasing
17        authority  of  the  defendant's  discharge   from   State
18        custody.
19             (3)  In  the  event of an escape from State custody,
20        the Department of Corrections  immediately  shall  notify
21        the  Prisoner Review Board of the escape and the Prisoner
22        Review Board shall notify the victim.   The  notification
23        shall be based upon the most recent information as to the
24        victim's  residence  or  other  location available to the
25        Board.  When no such information is available, the  Board
26        shall   make   all   reasonable  efforts  to  obtain  the
27        information and make the notification.  When the  escapee
28        is apprehended, the Department of Corrections immediately
29        shall  notify  the  Prisoner  Review  Board and the Board
30        shall notify the victim.
31             (4)  The victim of the crime for which the  prisoner
32        has  been  sentenced  shall  receive  reasonable  written
33        notice  not less than 15 days prior to the parole hearing
34        and may submit, in writing, on film, videotape  or  other
 
                            -11-     LRB093 10329 RLC 10583 b
 1        electronic  means  or  in  the  form of a recording or in
 2        person   at   the   parole   hearing,   information   for
 3        consideration by the Prisoner Review Board.   The  victim
 4        shall  be  notified  within 7 days after the prisoner has
 5        been granted parole and shall be informed of the right to
 6        inspect the registry  of  parole  decisions,  established
 7        under subsection (g) of Section 3-3-5 of the Unified Code
 8        of Corrections.  The provisions of this paragraph (4) are
 9        subject to the Open Parole Hearings Act.
10             (5)  If  a  statement  is presented under Section 6,
11        the Prisoner Review Board shall inform the victim of  any
12        order  of  discharge  entered  by  the  Board pursuant to
13        Section 3-3-8 of the Unified Code of Corrections.
14             (6)  At the written request of  the  victim  of  the
15        crime  for which the prisoner was sentenced, the Prisoner
16        Review Board shall notify the victim of the death of  the
17        prisoner   if  the  prisoner  died  while  on  parole  or
18        mandatory supervised release.
19             (7)  When a defendant who has been committed to  the
20        Department  of  Corrections  or  the  Department of Human
21        Services  is  released  or  discharged  and  subsequently
22        committed to  the  Department  of  Human  Services  as  a
23        sexually  violent  person and the victim had requested to
24        be notified by the releasing authority of the defendant's
25        discharge from State  custody,  the  releasing  authority
26        shall  provide  to  the Department of Human Services such
27        information that would  allow  the  Department  of  Human
28        Services to contact the victim.
29        (e)  The officials named in this Section may satisfy some
30    or  all  of  their  obligations  to provide notices and other
31    information through participation in a statewide  victim  and
32    witness  notification  system  established  by  the  Attorney
33    General under Section 8.5 of this Act.
34        (f)  The  State's Attorney shall notify the victim of the
 
                            -12-     LRB093 10329 RLC 10583 b
 1    violent crime at least 15 days  before  the  hearing  on  the
 2    application  of  the  defendant's filing of an application to
 3    have his or her  conviction  set  aside  under  Sections  5.2
 4    through 5.4 of the Criminal Identification Act.
 5    (Source:  P.A.  90-14,  eff.  7-1-97;  90-793,  eff. 8-14-98;
 6    91-237, eff. 1-1-00; 91-693, eff. 4-13-00.)

 7        Section 99. Effective date. This Act  takes  effect  upon
 8    becoming law.