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Public Act 91-0015
SB759 Enrolled LRB9100804RCmb
AN ACT to amend the Juvenile Court Act of 1987 by
changing Sections 5-130 and 5-805.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Juvenile Court Act of 1987 is amended by
changing Sections 5-130 and 5-805 as follows:
(705 ILCS 405/5-130)
Sec. 5-130. Excluded jurisdiction.
(1) (a) The definition of delinquent minor under Section
5-120 of this Article shall not apply to any minor who at the
time of an offense was at least 15 years of age and who is
charged with first degree murder, aggravated criminal sexual
assault, aggravated battery with a firearm committed in a
school, on the real property comprising a school, within
1,000 feet of the real property comprising a school, at a
school related activity, or on, boarding, or departing from
any conveyance owned, leased, or contracted by a school or
school district to transport students to or from school or a
school related activity regardless of the time of day or time
of year that the offense was committed, armed robbery when
the armed robbery was committed with a firearm, or aggravated
vehicular hijacking when the hijacking was committed with a
firearm.
These charges and all other charges arising out of the
same incident shall be prosecuted under the criminal laws of
this State.
For purposes of this paragraph (a) of subsection (l):
"School" means a public or private elementary or
secondary school, community college, college, or university.
"School related activity" means any sporting, social,
academic or other activity for which students' attendance or
participation is sponsored, organized, or funded in whole or
in part by a school or school district.
(b) (i) If before trial or plea an information or
indictment is filed that does not charge an offense specified
in paragraph (a) of this subsection (1) the State's Attorney
may proceed on any lesser charge or charges, but only in
Juvenile Court under the provisions of this Article. The
State's Attorney may proceed under the Criminal Code of 1961
on a lesser charge if before trial the minor defendant
knowingly and with advice of counsel waives, in writing, his
or her right to have the matter proceed in Juvenile Court.
(ii) If before trial or plea an information or
indictment is filed that includes one or more charges
specified in paragraph (a) of this subsection (1) and
additional charges that are not specified in that paragraph,
all of the charges arising out of the same incident shall be
prosecuted under the Criminal Code of 1961.
(c) (i) If after trial or plea the minor is convicted of
any offense covered by paragraph (a) of this subsection (1),
then, in sentencing the minor, the court shall have available
any or all dispositions prescribed for that offense under
Chapter V of the Unified Code of Corrections.
(ii) If after trial or plea the court finds that the
minor committed an offense not covered by paragraph (a) of
this subsection (1), that finding shall not invalidate the
verdict or the prosecution of the minor under the criminal
laws of the State; however, unless the State requests a
hearing for the purpose of sentencing the minor under Chapter
V of the Unified Code of Corrections, the Court must proceed
under Sections 5-705 and 5-710 of this Article. To request a
hearing, the State must file a written motion within 10 days
following the entry of a finding or the return of a verdict.
Reasonable notice of the motion shall be given to the minor
or his or her counsel. If the motion is made by the State,
the court shall conduct a hearing to determine if the minor
should be sentenced under Chapter V of the Unified Code of
Corrections. In making its determination, the court shall
consider among other matters: (a) whether there is evidence
that the offense was committed in an aggressive and
premeditated manner; (b) the age of the minor; (c) the
previous history of the minor; (d) whether there are
facilities particularly available to the Juvenile Court or
the Department of Corrections, Juvenile Division, for the
treatment and rehabilitation of the minor; (e) whether the
security of the public requires sentencing under Chapter V of
the Unified Code of Corrections; and (f) whether the minor
possessed a deadly weapon when committing the offense. The
rules of evidence shall be the same as if at trial. If after
the hearing the court finds that the minor should be
sentenced under Chapter V of the Unified Code of Corrections,
then the court shall sentence the minor accordingly having
available to it any or all dispositions so prescribed.
(2) (a) The definition of a delinquent minor under
Section 5-120 of this Article shall not apply to any minor
who at the time of the offense was at least 15 years of age
and who is charged with an offense under Section 401 of the
Illinois Controlled Substances Act, while in a school,
regardless of the time of day or the time of year, or any
conveyance owned, leased or contracted by a school to
transport students to or from school or a school related
activity, or residential property owned, operated and managed
by a public housing agency, on the real property comprising
any school, regardless of the time of day or the time of
year, or residential property owned, operated and managed by
a public housing agency, or on a public way within 1,000 feet
of the real property comprising any school, regardless of the
time of day or the time of year, or residential property
owned, operated and managed by a public housing agency.
School is defined, for the purposes of this Section, as any
public or private elementary or secondary school, community
college, college, or university. These charges and all other
charges arising out of the same incident shall be prosecuted
under the criminal laws of this State.
(b) (i) If before trial or plea an information or
indictment is filed that does not charge an offense specified
in paragraph (a) of this subsection (2) the State's Attorney
may proceed on any lesser charge or charges, but only in
Juvenile Court under the provisions of this Article. The
State's Attorney may proceed under the criminal laws of this
State on a lesser charge if before trial the minor defendant
knowingly and with advice of counsel waives, in writing, his
or her right to have the matter proceed in Juvenile Court.
(ii) If before trial or plea an information or
indictment is filed that includes one or more charges
specified in paragraph (a) of this subsection (2) and
additional charges that are not specified in that paragraph,
all of the charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.
(c) (i) If after trial or plea the minor is convicted of
any offense covered by paragraph (a) of this subsection (2),
then, in sentencing the minor, the court shall have available
any or all dispositions prescribed for that offense under
Chapter V of the Unified Code of Corrections.
(ii) If after trial or plea the court finds that the
minor committed an offense not covered by paragraph (a) of
this subsection (2), that finding shall not invalidate the
verdict or the prosecution of the minor under the criminal
laws of the State; however, unless the State requests a
hearing for the purpose of sentencing the minor under Chapter
V of the Unified Code of Corrections, the Court must proceed
under Sections 5-705 and 5-710 of this Article. To request a
hearing, the State must file a written motion within 10 days
following the entry of a finding or the return of a verdict.
Reasonable notice of the motion shall be given to the minor
or his or her counsel. If the motion is made by the State,
the court shall conduct a hearing to determine if the minor
should be sentenced under Chapter V of the Unified Code of
Corrections. In making its determination, the court shall
consider among other matters: (a) whether there is evidence
that the offense was committed in an aggressive and
premeditated manner; (b) the age of the minor; (c) the
previous history of the minor; (d) whether there are
facilities particularly available to the Juvenile Court or
the Department of Corrections, Juvenile Division, for the
treatment and rehabilitation of the minor; (e) whether the
security of the public requires sentencing under Chapter V of
the Unified Code of Corrections; and (f) whether the minor
possessed a deadly weapon when committing the offense. The
rules of evidence shall be the same as if at trial. If after
the hearing the court finds that the minor should be
sentenced under Chapter V of the Unified Code of Corrections,
then the court shall sentence the minor accordingly having
available to it any or all dispositions so prescribed.
(3) (a) The definition of delinquent minor under Section
5-120 of this Article shall not apply to any minor who at the
time of the offense was at least 15 years of age and who is
charged with a violation of the provisions of paragraph (1),
(3), (4), or (10) of subsection (a) of Section 24-1 of the
Criminal Code of 1961 while in school, regardless of the time
of day or the time of year, or on the real property
comprising any school, regardless of the time of day or the
time of year. School is defined, for purposes of this Section
as any public or private elementary or secondary school,
community college, college, or university. These charges and
all other charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.
(b) (i) If before trial or plea an information or
indictment is filed that does not charge an offense specified
in paragraph (a) of this subsection (3) the State's Attorney
may proceed on any lesser charge or charges, but only in
Juvenile Court under the provisions of this Article. The
State's Attorney may proceed under the criminal laws of this
State on a lesser charge if before trial the minor defendant
knowingly and with advice of counsel waives, in writing, his
or her right to have the matter proceed in Juvenile Court.
(ii) If before trial or plea an information or
indictment is filed that includes one or more charges
specified in paragraph (a) of this subsection (3) and
additional charges that are not specified in that paragraph,
all of the charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.
(c) (i) If after trial or plea the minor is convicted of
any offense covered by paragraph (a) of this subsection (3),
then, in sentencing the minor, the court shall have available
any or all dispositions prescribed for that offense under
Chapter V of the Unified Code of Corrections.
(ii) If after trial or plea the court finds that the
minor committed an offense not covered by paragraph (a) of
this subsection (3), that finding shall not invalidate the
verdict or the prosecution of the minor under the criminal
laws of the State; however, unless the State requests a
hearing for the purpose of sentencing the minor under Chapter
V of the Unified Code of Corrections, the Court must proceed
under Sections 5-705 and 5-710 of this Article. To request a
hearing, the State must file a written motion within 10 days
following the entry of a finding or the return of a verdict.
Reasonable notice of the motion shall be given to the minor
or his or her counsel. If the motion is made by the State,
the court shall conduct a hearing to determine if the minor
should be sentenced under Chapter V of the Unified Code of
Corrections. In making its determination, the court shall
consider among other matters: (a) whether there is evidence
that the offense was committed in an aggressive and
premeditated manner; (b) the age of the minor; (c) the
previous history of the minor; (d) whether there are
facilities particularly available to the Juvenile Court or
the Department of Corrections, Juvenile Division, for the
treatment and rehabilitation of the minor; (e) whether the
security of the public requires sentencing under Chapter V of
the Unified Code of Corrections; and (f) whether the minor
possessed a deadly weapon when committing the offense. The
rules of evidence shall be the same as if at trial. If after
the hearing the court finds that the minor should be
sentenced under Chapter V of the Unified Code of Corrections,
then the court shall sentence the minor accordingly having
available to it any or all dispositions so prescribed.
(4) (a) The definition of delinquent minor under Section
5-120 of this Article shall not apply to any minor who at the
time of an offense was at least 13 years of age and who is
charged with first degree murder committed during the course
of either aggravated criminal sexual assault, criminal sexual
assault, or aggravated kidnaping. However, this subsection
(4) does not include a minor charged with first degree murder
based exclusively upon the accountability provisions of the
Criminal Code of 1961.
(b) (i) If before trial or plea an information or
indictment is filed that does not charge first degree murder
committed during the course of aggravated criminal sexual
assault, criminal sexual assault, or aggravated kidnaping,
the State's Attorney may proceed on any lesser charge or
charges, but only in Juvenile Court under the provisions of
this Article. The State's Attorney may proceed under the
criminal laws of this State on a lesser charge if before
trial the minor defendant knowingly and with advice of
counsel waives, in writing, his or her right to have the
matter proceed in Juvenile Court.
(ii) If before trial or plea an information or
indictment is filed that includes first degree murder
committed during the course of aggravated criminal sexual
assault, criminal sexual assault, or aggravated kidnaping,
and additional charges that are not specified in paragraph
(a) of this subsection, all of the charges arising out of the
same incident shall be prosecuted under the criminal laws of
this State.
(c) (i) If after trial or plea the minor is convicted of
first degree murder committed during the course of aggravated
criminal sexual assault, criminal sexual assault, or
aggravated kidnaping, in sentencing the minor, the court
shall have available any or all dispositions prescribed for
that offense under Chapter V of the Unified Code of
Corrections.
(ii) If the minor was not yet 15 years of age at the
time of the offense, and if after trial or plea the court
finds that the minor committed an offense other than first
degree murder committed during the course of either
aggravated criminal sexual assault, criminal sexual assault,
or aggravated kidnapping, the finding shall not invalidate
the verdict or the prosecution of the minor under the
criminal laws of the State; however, unless the State
requests a hearing for the purpose of sentencing the minor
under Chapter V of the Unified Code of Corrections, the Court
must proceed under Sections 5-705 and 5-710 of this Article.
To request a hearing, the State must file a written motion
within 10 days following the entry of a finding or the return
of a verdict. Reasonable notice of the motion shall be given
to the minor or his or her counsel. If the motion is made by
the State, the court shall conduct a hearing to determine
whether the minor should be sentenced under Chapter V of the
Unified Code of Corrections. In making its determination,
the court shall consider among other matters: (a) whether
there is evidence that the offense was committed in an
aggressive and premeditated manner; (b) the age of the
minor; (c) the previous delinquent history of the minor;
(d) whether there are facilities particularly available to
the Juvenile Court or the Department of Corrections, Juvenile
Division, for the treatment and rehabilitation of the minor;
(e) whether the best interest of the minor and the security
of the public require sentencing under Chapter V of the
Unified Code of Corrections; and (f) whether the minor
possessed a deadly weapon when committing the offense. The
rules of evidence shall be the same as if at trial. If after
the hearing the court finds that the minor should be
sentenced under Chapter V of the Unified Code of Corrections,
then the court shall sentence the minor accordingly having
available to it any or all dispositions so prescribed.
(5) (a) The definition of delinquent minor under Section
5-120 of this Article shall not apply to any minor who is
charged with a violation of subsection (a) of Section 31-6 or
Section 32-10 of the Criminal Code of 1961 when the minor is
subject to prosecution under the criminal laws of this State
as a result of the application of the provisions of Section
5-125, or subsection (1) or (2) of this Section. These
charges and all other charges arising out of the same
incident shall be prosecuted under the criminal laws of this
State.
(b) (i) If before trial or plea an information or
indictment is filed that does not charge an offense specified
in paragraph (a) of this subsection (5), the State's Attorney
may proceed on any lesser charge or charges, but only in
Juvenile Court under the provisions of this Article. The
State's Attorney may proceed under the criminal laws of this
State on a lesser charge if before trial the minor defendant
knowingly and with advice of counsel waives, in writing, his
or her right to have the matter proceed in Juvenile Court.
(ii) If before trial or plea an information or
indictment is filed that includes one or more charges
specified in paragraph (a) of this subsection (5) and
additional charges that are not specified in that paragraph,
all of the charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.
(c) (i) If after trial or plea the minor is convicted of
any offense covered by paragraph (a) of this subsection (5),
then, in sentencing the minor, the court shall have available
any or all dispositions prescribed for that offense under
Chapter V of the Unified Code of Corrections.
(ii) If after trial or plea the court finds that the
minor committed an offense not covered by paragraph (a) of
this subsection (5), the conviction shall not invalidate the
verdict or the prosecution of the minor under the criminal
laws of this State; however, unless the State requests a
hearing for the purpose of sentencing the minor under Chapter
V of the Unified Code of Corrections, the Court must proceed
under Sections 5-705 and 5-710 of this Article. To request a
hearing, the State must file a written motion within 10 days
following the entry of a finding or the return of a verdict.
Reasonable notice of the motion shall be given to the minor
or his or her counsel. If the motion is made by the State,
the court shall conduct a hearing to determine if whether the
minor should be sentenced under Chapter V of the Unified Code
of Corrections. In making its determination, the court shall
consider among other matters: (a) whether there is evidence
that the offense was committed in an aggressive and
premeditated manner; (b) the age of the minor; (c) the
previous delinquent history of the minor; (d) whether there
are facilities particularly available to the Juvenile Court
or the Department of Corrections, Juvenile Division, for the
treatment and rehabilitation of the minor; (e) whether the
security of the public requires sentencing under Chapter V of
the Unified Code of Corrections; and (f) whether the minor
possessed a deadly weapon when committing the offense. The
rules of evidence shall be the same as if at trial. If after
the hearing the court finds that the minor should be
sentenced under Chapter V of the Unified Code of Corrections,
then the court shall sentence the minor accordingly having
available to it any or all dispositions so prescribed.
(6) The definition of delinquent minor under Section
5-120 of this Article shall not apply to any minor who,
pursuant to subsection (1), (2), or (3) or Section 5-805, or
5-810, has previously been placed under the jurisdiction of
the criminal court and has been convicted of a crime under an
adult criminal or penal statute. Such a minor shall be
subject to prosecution under the criminal laws of this State.
(7) The procedures set out in this Article for the
investigation, arrest and prosecution of juvenile offenders
shall not apply to minors who are excluded from jurisdiction
of the Juvenile Court, except that minors under 17 years of
age shall be kept separate from confined adults.
(8) Nothing in this Act prohibits or limits the
prosecution of any minor for an offense committed on or after
his or her 17th birthday even though he or she is at the time
of the offense a ward of the court.
(9) If an original petition for adjudication of wardship
alleges the commission by a minor 13 years of age or over of
an act that constitutes a crime under the laws of this State,
the minor, with the consent of his or her counsel, may, at
any time before commencement of the adjudicatory hearing,
file with the court a motion that criminal prosecution be
ordered and that the petition be dismissed insofar as the act
or acts involved in the criminal proceedings are concerned.
If such a motion is filed as herein provided, the court shall
enter its order accordingly.
(Source: P.A. 90-590, eff. 1-1-99.)
(705 ILCS 405/5-805)
Sec. 5-805. Transfer of jurisdiction.
(1) Mandatory transfers.
(a) If a petition alleges commission by a minor 15
years of age or older of an act that constitutes a
forcible felony under the laws of this State, and if a
motion by the State's Attorney to prosecute the minor
under the criminal laws of Illinois for the alleged
forcible felony alleges that (i) the minor has previously
been adjudicated delinquent or found guilty for
commission of an act that constitutes a felony under the
laws of this State or any other state and (ii) the act
that constitutes the offense was committed in furtherance
of criminal activity by an organized gang, the Juvenile
Judge assigned to hear and determine those motions shall,
upon determining that there is probable cause that both
allegations are true, enter an order permitting
prosecution under the criminal laws of Illinois.
(b) If a petition alleges commission by a minor 15
years of age or older of an act that constitutes a felony
under the laws of this State, and if a motion by a
State's Attorney to prosecute the minor under the
criminal laws of Illinois for the alleged felony alleges
that (i) the minor has previously been adjudicated
delinquent or found guilty for commission of an act that
constitutes a forcible felony under the laws of this
State or any other state and (ii) the act that
constitutes the offense was committed in furtherance of
criminal activities by an organized gang, the Juvenile
Judge assigned to hear and determine those motions shall,
upon determining that there is probable cause that both
allegations are true, enter an order permitting
prosecution under the criminal laws of Illinois.
(c) If a petition alleges commission by a minor 15
years of age or older of: (i) an act that constitutes an
offense enumerated in the presumptive transfer provisions
of subsection (2); and (ii) the minor has previously been
adjudicated delinquent or found guilty of a forcible
felony, the Juvenile Judge designated to hear and
determine those motions shall, upon determining that
there is probable cause that both allegations are true,
enter an order permitting prosecution under the criminal
laws of Illinois.
(d) If a petition alleges commission by a minor 15
years of age or older of an act that constitutes the
offense of aggravated discharge of a firearm committed in
a school, on the real property comprising a school,
within 1,000 feet of the real property comprising a
school, at a school related activity, or on, boarding, or
departing from any conveyance owned, leased, or
contracted by a school or school district to transport
students to or from school or a school related activity,
regardless of the time of day or the time of year, the
juvenile judge designated to hear and determine those
motions shall, upon determining that there is probable
cause that the allegations are true, enter an order
permitting prosecution under the criminal laws of
Illinois.
For purposes of this paragraph (d) of subsection
(1):
"School" means a public or private elementary or
secondary school, community college, college, or
university.
"School related activity" means any sporting,
social, academic, or other activity for which students'
attendance or participation is sponsored, organized, or
funded in whole or in part by a school or school
district.
(2) Presumptive transfer.
(a) If the State's Attorney files a petition, at
any time prior to commencement of the minor's trial, to
permit prosecution under the criminal laws and the
petition alleges the commission by a minor 15 years of
age or older of: (i) a Class X felony other than armed
violence; (ii) aggravated discharge of a firearm; (iii)
armed violence with a firearm when the predicate offense
is a Class 1 or Class 2 felony and the State's Attorney's
motion to transfer the case alleges that the offense
committed is in furtherance of the criminal activities of
an organized gang; (iv) armed violence with a firearm
when the predicate offense is a violation of the Illinois
Controlled Substances Act or a violation of the Cannabis
Control Act; (v) armed violence when the weapon involved
was a machine gun or other weapon described in subsection
(a)(7) of Section 24-1 of the Criminal Code of 1961, and,
if the juvenile judge assigned to hear and determine
motions to transfer a case for prosecution in the
criminal court determines that there is probable cause to
believe that the allegations in the petition and motion
are true, there is a rebuttable presumption that the
minor is not a fit and proper subject to be dealt with
under the Juvenile Justice Reform Provisions of 1998
(Public Act 90-590), and that, except as provided in
paragraph (b), the case should be transferred to the
criminal court.
(b) The judge shall enter an order permitting
prosecution under the criminal laws of Illinois unless
the judge makes a finding based on clear and convincing
evidence that the minor would be amenable to the care,
treatment, and training programs available through the
facilities of the juvenile court based on an evaluation
of the following:
(i) The seriousness of the alleged offense;
(ii) The minor's history of delinquency;
(iii) The age of the minor;
(iv) The culpability of the minor in committing
the alleged offense;
(v) Whether the offense was committed in an
aggressive or premeditated manner;
(vi) Whether the minor used or possessed a deadly
weapon when committing the alleged offense;
(vii) The minor's history of services, including
the minor's willingness to participate meaningfully in
available services;
(viii) Whether there is a reasonable likelihood that
the minor can be rehabilitated before the expiration of
the juvenile court's jurisdiction;
(ix) The adequacy of the punishment or services
available in the juvenile justice system.
In considering these factors, the court shall give
greater weight to the seriousness of the alleged offense and
the minor's prior record of delinquency than to the other
factors listed in this subsection.
(3) Discretionary transfer.
(a) If a petition alleges commission by a minor 13
years of age or over of an act that constitutes a crime
under the laws of this State and, on motion of the
State's Attorney to permit prosecution of the minor under
the criminal laws, a Juvenile Judge assigned by the Chief
Judge of the Circuit to hear and determine those motions,
after hearing but before commencement of the trial, finds
that there is probable cause to believe that the
allegations in the motion are true and that it is not in
the best interests of the public to proceed under this
Act, the court may enter an order permitting prosecution
under the criminal laws.
(b) In making its determination on the motion to
permit prosecution under the criminal laws, the court
shall consider among other matters:
(i) The seriousness of the alleged offense;
(ii) The minor's history of delinquency;
(iii) The age of the minor;
(iv) The culpability of the minor in committing the
alleged offense;
(v) Whether the offense was committed in an
aggressive or premeditated manner;
(vi) Whether the minor used or possessed a deadly
weapon when committing the alleged offense;
(vii) The minor's history of services, including
the minor's willingness to participate meaningfully in
available services;
(viii) The adequacy of the punishment or services
available in the juvenile justice system.
In considering these factors, the court shall give
greater weight to the seriousness of the alleged offense and
the minor's prior record of delinquency than to the other
factors listed in this subsection.
(4) The rules of evidence for this hearing shall be the
same as under Section 5-705 of this Act. A minor must be
represented in court by counsel before the hearing may be
commenced.
(5) If criminal proceedings are instituted, the petition
for adjudication of wardship shall be dismissed insofar as
the act or acts involved in the criminal proceedings. Taking
of evidence in a trial on petition for adjudication of
wardship is a bar to criminal proceedings based upon the
conduct alleged in the petition.
(Source: P.A. 90-590, eff. 1-1-99; revised 10-28-98.)
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