Illinois General Assembly - Full Text of HB0821
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Full Text of HB0821  98th General Assembly

HB0821ham003 98TH GENERAL ASSEMBLY

Rep. Monique D. Davis

Filed: 4/17/2013

 

 


 

 


 
09800HB0821ham003LRB098 03649 RLC 44799 a

1
AMENDMENT TO HOUSE BILL 821

2    AMENDMENT NO. ______. Amend House Bill 821 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Unified Code of Corrections is amended by
5changing Section 5-5-4 as follows:
 
6    (730 ILCS 5/5-5-4)  (from Ch. 38, par. 1005-5-4)
7    Sec. 5-5-4. Resentences.
8    (a) Where a conviction or sentence has been set aside on
9direct review or on collateral attack, the court shall not
10impose a new sentence for the same offense or for a different
11offense based on the same conduct which is more severe than the
12prior sentence less the portion of the prior sentence
13previously satisfied unless the more severe sentence is based
14upon conduct on the part of the defendant occurring after the
15original sentencing. If a sentence is vacated on appeal or on
16collateral attack due to the failure of the trier of fact at

 

 

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1trial to determine beyond a reasonable doubt the existence of a
2fact (other than a prior conviction) necessary to increase the
3punishment for the offense beyond the statutory maximum
4otherwise applicable, either the defendant may be re-sentenced
5to a term within the range otherwise provided or, if the State
6files notice of its intention to again seek the extended
7sentence, the defendant shall be afforded a new trial.
8    (b) If a conviction or sentence has been set aside on
9direct review or on collateral attack and the court determines
10by clear and convincing evidence that the defendant was
11factually innocent of the charge, the court shall enter an
12order expunging the record of arrest from the official records
13of the arresting authority and order that the records of the
14clerk of the circuit court and Department of State Police be
15sealed until further order of the court upon good cause shown
16or as otherwise provided herein, and the name of the defendant
17obliterated from the official index requested to be kept by the
18circuit court clerk under Section 16 of the Clerks of Courts
19Act in connection with the arrest and conviction for the
20offense but the order shall not affect any index issued by the
21circuit court clerk before the entry of the order.
22    All records sealed by the Department of State Police may be
23disseminated by the Department only as required by law or to
24the arresting authority, the State's Attorney, the court upon a
25later arrest for the same or similar offense, or for the
26purpose of sentencing for any subsequent felony. Upon

 

 

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1conviction for any subsequent offense, the Department of
2Corrections shall have access to all sealed records of the
3Department pertaining to that individual.
4    Upon entry of the order of expungement, the clerk of the
5circuit court shall promptly mail a copy of the order to the
6person whose records were expunged and sealed.
7    (c) If a conviction has been vacated as a result of a claim
8of actual innocence based on newly discovered evidence made
9under Section 122-1 of the Code of Criminal Procedure of 1963
10or Section 2-1401 of the Code of Civil Procedure, and the
11provisions of paragraphs (1) and (2) of subsection (g) of
12Section 2-702 of the Code of Civil Procedure are otherwise
13satisfied, the court shall enter an order for a certificate of
14innocence.
15(Source: P.A. 93-210, eff. 7-18-03.)".