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Public Act 095-0035


 

Public Act 0035 95TH GENERAL ASSEMBLY



 


 
Public Act 095-0035
 
HB0181 Enrolled LRB095 04214 RLC 24255 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Unified Code of Corrections is amended by
changing Sections 5-6-4 and 5-7-2 as follows:
 
    (730 ILCS 5/5-6-4)  (from Ch. 38, par. 1005-6-4)
    Sec. 5-6-4. Violation, Modification or Revocation of
Probation, of Conditional Discharge or Supervision or of a
sentence of county impact incarceration - Hearing.
    (a) Except in cases where conditional discharge or
supervision was imposed for a petty offense as defined in
Section 5-1-17, when a petition is filed charging a violation
of a condition, the court may:
        (1) in the case of probation violations, order the
    issuance of a notice to the offender to be present by the
    County Probation Department or such other agency
    designated by the court to handle probation matters; and in
    the case of conditional discharge or supervision
    violations, such notice to the offender shall be issued by
    the Circuit Court Clerk; and in the case of a violation of
    a sentence of county impact incarceration, such notice
    shall be issued by the Sheriff;
        (2) order a summons to the offender to be present for
    hearing; or
        (3) order a warrant for the offender's arrest where
    there is danger of his fleeing the jurisdiction or causing
    serious harm to others or when the offender fails to answer
    a summons or notice from the clerk of the court or Sheriff.
    Personal service of the petition for violation of probation
or the issuance of such warrant, summons or notice shall toll
the period of probation, conditional discharge, supervision,
or sentence of county impact incarceration until the final
determination of the charge, and the term of probation,
conditional discharge, supervision, or sentence of county
impact incarceration shall not run until the hearing and
disposition of the petition for violation.
    (b) The court shall conduct a hearing of the alleged
violation. The court shall admit the offender to bail pending
the hearing unless the alleged violation is itself a criminal
offense in which case the offender shall be admitted to bail on
such terms as are provided in the Code of Criminal Procedure of
1963, as amended. In any case where an offender remains
incarcerated only as a result of his alleged violation of the
court's earlier order of probation, supervision, conditional
discharge, or county impact incarceration such hearing shall be
held within 14 days of the onset of said incarceration, unless
the alleged violation is the commission of another offense by
the offender during the period of probation, supervision or
conditional discharge in which case such hearing shall be held
within the time limits described in Section 103-5 of the Code
of Criminal Procedure of 1963, as amended.
    (c) The State has the burden of going forward with the
evidence and proving the violation by the preponderance of the
evidence. The evidence shall be presented in open court with
the right of confrontation, cross-examination, and
representation by counsel.
    (d) Probation, conditional discharge, periodic
imprisonment and supervision shall not be revoked for failure
to comply with conditions of a sentence or supervision, which
imposes financial obligations upon the offender unless such
failure is due to his willful refusal to pay.
    (e) If the court finds that the offender has violated a
condition at any time prior to the expiration or termination of
the period, it may continue him on the existing sentence, with
or without modifying or enlarging the conditions, or may impose
any other sentence that was available under Section 5-5-3 of
this Code or Section 11-501 of the Illinois Vehicle Code at the
time of initial sentencing. If the court finds that the person
has failed to successfully complete his or her sentence to a
county impact incarceration program, the court may impose any
other sentence that was available under Section 5-5-3 of this
Code or Section 11-501 of the Illinois Vehicle Code at the time
of initial sentencing, except for a sentence of probation or
conditional discharge. If the court finds that the offender has
violated paragraph (8.6) of subsection (a) of Section 5-6-3,
the court shall revoke the probation of the offender. If the
court finds that the offender has violated subsection (o) of
Section 5-6-3.1, the court shall revoke the supervision of the
offender.
    (f) The conditions of probation, of conditional discharge,
of supervision, or of a sentence of county impact incarceration
may be modified by the court on motion of the supervising
agency or on its own motion or at the request of the offender
after notice and a hearing.
    (g) A judgment revoking supervision, probation,
conditional discharge, or a sentence of county impact
incarceration is a final appealable order.
    (h) Resentencing after revocation of probation,
conditional discharge, supervision, or a sentence of county
impact incarceration shall be under Article 4. The term Time
served on probation, conditional discharge or supervision
shall not be credited by the court against a sentence of
imprisonment or periodic imprisonment unless the court orders
otherwise. The amount of credit to be applied against a
sentence of imprisonment or periodic imprisonment when the
defendant served a term or partial term of periodic
imprisonment shall be calculated upon the basis of the actual
days spent in confinement rather than the duration of the term.
    (i) Instead of filing a violation of probation, conditional
discharge, supervision, or a sentence of county impact
incarceration, an agent or employee of the supervising agency
with the concurrence of his or her supervisor may serve on the
defendant a Notice of Intermediate Sanctions. The Notice shall
contain the technical violation or violations involved, the
date or dates of the violation or violations, and the
intermediate sanctions to be imposed. Upon receipt of the
Notice, the defendant shall immediately accept or reject the
intermediate sanctions. If the sanctions are accepted, they
shall be imposed immediately. If the intermediate sanctions are
rejected or the defendant does not respond to the Notice, a
violation of probation, conditional discharge, supervision, or
a sentence of county impact incarceration shall be immediately
filed with the court. The State's Attorney and the sentencing
court shall be notified of the Notice of Sanctions. Upon
successful completion of the intermediate sanctions, a court
may not revoke probation, conditional discharge, supervision,
or a sentence of county impact incarceration or impose
additional sanctions for the same violation. A notice of
intermediate sanctions may not be issued for any violation of
probation, conditional discharge, supervision, or a sentence
of county impact incarceration which could warrant an
additional, separate felony charge. The intermediate sanctions
shall include a term of home detention as provided in Article
8A of Chapter V of this Code for multiple or repeat violations
of the terms and conditions of a sentence of probation,
conditional discharge, or supervision.
    (j) When an offender is re-sentenced after revocation of
probation that was imposed in combination with a sentence of
imprisonment for the same offense, the aggregate of the
sentences may not exceed the maximum term authorized under
Article 8 of this Chapter.
(Source: P.A. 93-800, eff. 1-1-05; 93-1014, eff. 1-1-05;
94-161, eff. 7-11-05.)
 
    (730 ILCS 5/5-7-2)  (from Ch. 38, par. 1005-7-2)
    Sec. 5-7-2. Modification and Revocation. (a) A sentence of
periodic imprisonment may be modified or revoked by the court
if:
    (1) the offender commits another offense; or
    (2) the offender violates any of the conditions of the
sentence; or
    (3) the offender violates any rule or regulation of the
institution, agency or Department to which he has been
committed.
    (b) If the offender violates the order of periodic
imprisonment, the Department of Corrections, the sheriff, or
the superintendent of the house of corrections shall report
such violation to the court.
    (c) The court shall not modify or revoke a sentence of
periodic imprisonment unless the offender has been given
written notice and afforded a hearing under Section 5-6-4. If
the offender is incarcerated as a result of his alleged
violation of the court's prior order, such hearing shall be
held within 14 days of the onset of said incarceration. Where a
sentence of periodic imprisonment is revoked, the court may
impose any other sentence that was available at the time of
initial sentencing. That part of the term under paragraph (d)
of Section 5-7-1 which has been served under the sentence of
periodic imprisonment shall be credited against a sentence of
imprisonment.
(Source: P.A. 80-1099.)

Effective Date: 1/1/2008