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92nd General Assembly

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Public Act 92-0422

HB2300 Enrolled                                LRB9207864ARsb

    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 Section 5-5-3 as follows:

    (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
    Sec. 5-5-3.  Disposition.
    (a)  Every  person  convicted  of  an  offense  shall  be
sentenced as provided in this Section.
    (b)  The   following   options   shall   be   appropriate
dispositions,  alone  or in combination, for all felonies and
misdemeanors other than those identified in subsection (c) of
this Section:
         (1)  A period of probation.
         (2)  A term of periodic imprisonment.
         (3)  A term of conditional discharge.
         (4)  A term of imprisonment.
         (5)  An order directing the offender to clean up and
    repair the damage, if the offender  was  convicted  under
    paragraph  (h)  of  Section  21-1 of the Criminal Code of
    1961.
         (6)  A fine.
         (7)  An  order  directing  the  offender   to   make
    restitution  to  the  victim  under Section 5-5-6 of this
    Code.
         (8)  A sentence of participation in a county  impact
    incarceration program under Section 5-8-1.2 of this Code.
    Whenever  an individual is sentenced for an offense based
upon an arrest for a  violation  of  Section  11-501  of  the
Illinois  Vehicle  Code,  or  a  similar provision of a local
ordinance,  and  the   professional   evaluation   recommends
remedial  or  rehabilitative  treatment or education, neither
the treatment nor the education shall be the sole disposition
and either or both may be imposed only  in  conjunction  with
another  disposition. The court shall monitor compliance with
any remedial education or treatment recommendations contained
in the professional evaluation.  Programs conducting  alcohol
or  other  drug  evaluation  or  remedial  education  must be
licensed by the Department of Human  Services.   However,  if
the  individual  is not a resident of Illinois, the court may
accept an  alcohol  or  other  drug  evaluation  or  remedial
education   program   in   the  state  of  such  individual's
residence.  Programs providing  treatment  must  be  licensed
under  existing  applicable  alcoholism  and  drug  treatment
licensure standards.
    In addition to any other fine or penalty required by law,
any  individual convicted of a violation of Section 11-501 of
the Illinois Vehicle Code or a  similar  provision  of  local
ordinance,  whose  operation  of  a  motor  vehicle  while in
violation of Section 11-501  or  such  ordinance  proximately
caused  an  incident  resulting  in  an appropriate emergency
response, shall be required to make restitution to  a  public
agency  for  the  costs  of  that  emergency  response.  Such
restitution shall not exceed $500 per public agency for  each
such  emergency response.  For the purpose of this paragraph,
emergency  response  shall  mean  any  incident  requiring  a
response by: a police officer as defined under Section  1-162
of  the Illinois Vehicle Code; a fireman carried on the rolls
of a regularly constituted fire department; and an  ambulance
as  defined  under  Section  4.05  of  the  Emergency Medical
Services (EMS) Systems Act.
    Neither  a  fine  nor  restitution  shall  be  the   sole
disposition  for  a  felony and either or both may be imposed
only in conjunction with another disposition.
    (c) (1)  When a defendant is found guilty of first degree
    murder  the  State  may  either  seek   a   sentence   of
    imprisonment  under  Section 5-8-1 of this Code, or where
    appropriate seek a sentence of death under Section 9-1 of
    the Criminal Code of 1961.
         (2)  A period  of  probation,  a  term  of  periodic
    imprisonment   or  conditional  discharge  shall  not  be
    imposed for  the  following  offenses.  The  court  shall
    sentence  the  offender to not less than the minimum term
    of imprisonment set forth in this Code for the  following
    offenses,  and may order a fine or restitution or both in
    conjunction with such term of imprisonment:
              (A)  First  degree  murder  where   the   death
         penalty is not imposed.
              (B)  Attempted first degree murder.
              (C)  A Class X felony.
              (D)  A violation of Section 401.1 or 407 of the
         Illinois  Controlled  Substances Act, or a violation
         of subdivision (c)(2) of Section  401  of  that  Act
         which  relates  to  more than 5 grams of a substance
         containing cocaine or an analog thereof.
              (E)  A violation of Section 5.1  or  9  of  the
         Cannabis Control Act.
              (F)  A   Class  2  or  greater  felony  if  the
         offender had been convicted of a Class 2 or  greater
         felony  within  10  years  of  the date on which the
         offender committed the offense for which he  or  she
         is  being sentenced, except as otherwise provided in
         Section 40-10 of the Alcoholism and Other Drug Abuse
         and Dependency Act.
              (G)  Residential burglary, except as  otherwise
         provided  in  Section  40-10  of  the Alcoholism and
         Other Drug Abuse and Dependency Act.
              (H)  Criminal   sexual   assault,   except   as
         otherwise  provided  in  subsection  (e)   of   this
         Section.
              (I)  Aggravated battery of a senior citizen.
              (J)  A  forcible  felony  if  the  offense  was
         related to the activities of an organized gang.
              Before  July  1, 1994, for the purposes of this
         paragraph, "organized gang" means an association  of
         5  or  more  persons, with an established hierarchy,
         that  encourages  members  of  the  association   to
         perpetrate crimes or provides support to the members
         of the association who do commit crimes.
              Beginning  July  1,  1994,  for the purposes of
         this paragraph, "organized  gang"  has  the  meaning
         ascribed  to  it  in  Section  10  of  the  Illinois
         Streetgang Terrorism Omnibus Prevention Act.
              (K)  Vehicular hijacking.
              (L)  A  second or subsequent conviction for the
         offense of hate crime when  the  underlying  offense
         upon  which  the  hate  crime  is  based  is  felony
         aggravated assault or felony mob action.
              (M)  A  second or subsequent conviction for the
         offense of institutional vandalism if the damage  to
         the property exceeds $300.
              (N)  A  Class  3  felony violation of paragraph
         (1) of subsection (a) of Section 2  of  the  Firearm
         Owners Identification Card Act.
              (O)  A  violation  of  Section  12-6.1  of  the
         Criminal Code of 1961.
              (P)  A  violation  of  paragraph (1), (2), (3),
         (4), (5),  or  (7)  of  subsection  (a)  of  Section
         11-20.1 of the Criminal Code of 1961.
              (Q)  A  violation  of  Section  20-1.2  of  the
         Criminal Code of 1961.
              (R)  A   violation  of  Section  24-3A  of  the
         Criminal Code of 1961.
         (3)  A minimum term of imprisonment of not less than
    48 consecutive hours or 100 hours of community service as
    may be determined by the court shall  be  imposed  for  a
    second  or  subsequent violation committed within 5 years
    of a previous violation of Section 11-501 of the Illinois
    Vehicle Code or a similar provision of a local ordinance.
         (4)  A minimum term of imprisonment of not less than
    7 consecutive days or 30 days of community service  shall
    be  imposed  for  a violation of paragraph (c) of Section
    6-303 of the Illinois Vehicle Code.
         (4.1)  A minimum term  of  30  consecutive  days  of
    imprisonment, 40 days of 24 hour periodic imprisonment or
    720  hours  of community service, as may be determined by
    the court, shall be imposed for a  violation  of  Section
    11-501  of  the  Illinois Vehicle Code during a period in
    which the defendant's driving privileges are  revoked  or
    suspended,  where  the revocation or suspension was for a
    violation of Section 11-501 or Section 11-501.1  of  that
    Code.
         (5)  The court may sentence an offender convicted of
    a business offense or a petty offense or a corporation or
    unincorporated association convicted of any offense to:
              (A)  a period of conditional discharge;
              (B)  a fine;
              (C)  make   restitution  to  the  victim  under
         Section 5-5-6 of this Code.
         (6)  In no case shall an offender be eligible for  a
    disposition  of  probation or conditional discharge for a
    Class 1 felony committed while he was serving a  term  of
    probation or conditional discharge for a felony.
         (7)  When   a   defendant  is  adjudged  a  habitual
    criminal under Article 33B of the Criminal Code of  1961,
    the  court  shall  sentence  the  defendant  to a term of
    natural life imprisonment.
         (8)  When a defendant, over the age of 21 years,  is
    convicted  of  a  Class 1 or Class 2 felony, after having
    twice been convicted in any state or federal court of  an
    offense that contains the same elements as an offense now
    classified  in  Illinois  as  a  Class 2 or greater Class
    felony of any  Class  2  or  greater  Class  felonies  in
    Illinois  and  such  charges  are  separately brought and
    tried and arise out of different  series  of  acts,  such
    defendant  shall be sentenced as a Class X offender. This
    paragraph shall not apply unless (1) the first felony was
    committed after the effective date of this amendatory Act
    of 1977; and (2) the second felony  was  committed  after
    conviction  on  the  first;  and (3) the third felony was
    committed after conviction  on  the  second.    A  person
    sentenced  as  a Class X offender under this paragraph is
    not eligible to apply for treatment  as  a  condition  of
    probation  as provided by Section 40-10 of the Alcoholism
    and Other Drug Abuse and Dependency Act.
         (9)  A defendant convicted of a second or subsequent
    offense of ritualized abuse of a child may  be  sentenced
    to a term of natural life imprisonment.
    (d)  In  any  case in which a sentence originally imposed
is vacated, the case shall be remanded to  the  trial  court.
The  trial  court shall hold a hearing under Section 5-4-1 of
the Unified Code of Corrections which may include evidence of
the defendant's life, moral character and  occupation  during
the  time  since the original sentence was passed.  The trial
court shall then impose sentence  upon  the  defendant.   The
trial  court  may  impose  any sentence which could have been
imposed at the original trial subject to Section 5-5-4 of the
Unified Code of Corrections.
    (e)  In  cases  where  prosecution  for  criminal  sexual
assault or aggravated criminal  sexual  abuse  under  Section
12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
conviction of a defendant who was  a  family  member  of  the
victim  at  the  time  of  the commission of the offense, the
court shall consider the safety and welfare of the victim and
may impose a sentence of probation only where:
         (1)  the  court  finds  (A)  or  (B)  or  both   are
    appropriate:
              (A)  the  defendant  is  willing  to  undergo a
         court approved  counseling  program  for  a  minimum
         duration of 2 years; or
              (B)  the defendant is willing to participate in
         a  court  approved plan including but not limited to
         the defendant's:
                   (i)  removal from the household;
                   (ii)  restricted contact with the victim;
                   (iii)  continued financial support of  the
              family;
                   (iv)  restitution  for  harm  done  to the
              victim; and
                   (v)  compliance with  any  other  measures
              that the court may deem appropriate; and
         (2)  the  court  orders the defendant to pay for the
    victim's counseling services,  to  the  extent  that  the
    court finds, after considering the defendant's income and
    assets,  that  the  defendant  is  financially capable of
    paying for such services, if  the  victim  was  under  18
    years  of  age  at the time the offense was committed and
    requires counseling as a result of the offense.
    Probation may be revoked or modified pursuant to  Section
5-6-4;  except where the court determines at the hearing that
the defendant violated a condition of his  or  her  probation
restricting  contact  with the victim or other family members
or commits another offense with the victim  or  other  family
members, the court shall revoke the defendant's probation and
impose a term of imprisonment.
    For  the  purposes  of  this Section, "family member" and
"victim" shall have the meanings ascribed to them in  Section
12-12 of the Criminal Code of 1961.
    (f)  This  Article  shall  not  deprive  a court in other
proceedings to order a forfeiture of property, to suspend  or
cancel  a  license,  to  remove  a  person from office, or to
impose any other civil penalty.
    (g)  Whenever a defendant  is  convicted  of  an  offense
under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
12-15  or  12-16  of the Criminal Code of 1961, the defendant
shall  undergo  medical  testing  to  determine  whether  the
defendant has any sexually transmissible disease, including a
test for infection with human immunodeficiency virus (HIV) or
any   other   identified   causative   agent   of    acquired
immunodeficiency  syndrome  (AIDS).   Any  such  medical test
shall be performed only  by  appropriately  licensed  medical
practitioners  and  may  include  an  analysis  of any bodily
fluids as well as an examination of the  defendant's  person.
Except as otherwise provided by law, the results of such test
shall  be kept strictly confidential by all medical personnel
involved in the testing and must be personally delivered in a
sealed envelope to the  judge  of  the  court  in  which  the
conviction  was entered for the judge's inspection in camera.
Acting in accordance with the best interests  of  the  victim
and  the  public,  the  judge  shall  have  the discretion to
determine to whom, if anyone, the results of the testing  may
be revealed. The court shall notify the defendant of the test
results.  The court shall also notify the victim if requested
by  the  victim, and if the victim is under the age of 15 and
if requested by the victim's parents or legal  guardian,  the
court  shall notify the victim's parents or legal guardian of
the test results.  The court shall provide information on the
availability of HIV testing and counseling at  Department  of
Public  Health  facilities to all parties to whom the results
of the testing are revealed  and  shall  direct  the  State's
Attorney  to  provide  the  information  to  the  victim when
possible. A State's Attorney may petition the court to obtain
the results of any HIV test administered under this  Section,
and  the  court  shall  grant  the  disclosure if the State's
Attorney shows it is relevant in order to prosecute a  charge
of  criminal transmission of HIV under Section 12-16.2 of the
Criminal Code of 1961 against the defendant.  The court shall
order that the cost of any such test shall  be  paid  by  the
county  and  may  be  taxed  as  costs  against the convicted
defendant.
    (g-5)  When  an  inmate  is  tested   for   an   airborne
communicable   disease,   as   determined   by  the  Illinois
Department of Public Health  including  but  not  limited  to
tuberculosis,  the  results  of  the test shall be personally
delivered by the warden or his or her designee  in  a  sealed
envelope  to  the judge of the court in which the inmate must
appear for the judge's inspection in camera if  requested  by
the  judge.   Acting in accordance with the best interests of
those in the courtroom, the judge shall have  the  discretion
to  determine  what  if  any  precautions need to be taken to
prevent transmission of the disease in the courtroom.
    (h)  Whenever a defendant  is  convicted  of  an  offense
under  Section  1 or 2 of the Hypodermic Syringes and Needles
Act, the defendant shall undergo medical testing to determine
whether   the   defendant   has   been   exposed   to   human
immunodeficiency  virus  (HIV)  or   any   other   identified
causative agent of acquired immunodeficiency syndrome (AIDS).
Except as otherwise provided by law, the results of such test
shall  be kept strictly confidential by all medical personnel
involved in the testing and must be personally delivered in a
sealed envelope to the  judge  of  the  court  in  which  the
conviction  was entered for the judge's inspection in camera.
Acting in accordance with the best interests of  the  public,
the  judge shall have the discretion to determine to whom, if
anyone, the results of the testing may be revealed. The court
shall notify the defendant of  a  positive  test  showing  an
infection  with  the  human immunodeficiency virus (HIV). The
court shall provide information on the  availability  of  HIV
testing   and  counseling  at  Department  of  Public  Health
facilities to all parties to whom the results of the  testing
are revealed and shall direct the State's Attorney to provide
the  information  to  the  victim  when  possible.  A State's
Attorney may petition the court to obtain the results of  any
HIV  test  administered  under  this   Section, and the court
shall grant the disclosure if the State's Attorney  shows  it
is  relevant  in  order  to  prosecute  a  charge of criminal
transmission of HIV under Section  12-16.2  of  the  Criminal
Code  of  1961  against  the defendant. The court shall order
that the cost of any such test shall be paid  by  the  county
and may be taxed as costs against the convicted defendant.
    (i)  All  fines  and penalties imposed under this Section
for any violation of Chapters 3, 4, 6, and 11 of the Illinois
Vehicle Code, or a similar provision of  a  local  ordinance,
and any violation of the Child Passenger Protection Act, or a
similar  provision  of  a local ordinance, shall be collected
and disbursed by the circuit clerk as provided under  Section
27.5 of the Clerks of Courts Act.
    (j)  In  cases  when  prosecution  for  any  violation of
Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
12-16  of  the  Criminal  Code  of 1961, any violation of the
Illinois Controlled Substances Act, or any violation  of  the
Cannabis  Control Act results in conviction, a disposition of
court supervision, or an order  of  probation  granted  under
Section  10 of the Cannabis Control Act or Section 410 of the
Illinois Controlled Substance Act of a defendant,  the  court
shall  determine  whether  the  defendant  is  employed  by a
facility or center as defined under the  Child  Care  Act  of
1969,  a public or private elementary or secondary school, or
otherwise works with children under 18  years  of  age  on  a
daily  basis.   When  a  defendant  is so employed, the court
shall order the Clerk of the Court to  send  a  copy  of  the
judgment  of  conviction or order of supervision or probation
to  the  defendant's  employer  by  certified  mail.  If  the
employer of the defendant is a school, the Clerk of the Court
shall direct the  mailing  of  a  copy  of  the  judgment  of
conviction  or  order  of  supervision  or  probation  to the
appropriate regional superintendent of schools.  The regional
superintendent of schools shall notify  the  State  Board  of
Education of any notification under this subsection.
    (j-5)  A  defendant  at  least  17  years  of  age who is
convicted of  a  felony  and  who  has  not  been  previously
convicted  of a misdemeanor or felony and who is sentenced to
a  term  of  imprisonment  in  the  Illinois  Department   of
Corrections  shall  as  a condition of his or her sentence be
required by the court to attend educational courses  designed
to  prepare  the  defendant  for a high school diploma and to
work toward a high school diploma or to work  toward  passing
the high school level Test of General Educational Development
(GED)  or  to  work  toward  completing a vocational training
program offered by  the  Department  of  Corrections.   If  a
defendant fails to complete the educational training required
by  his or her sentence during the term of incarceration, the
Prisoner Review Board shall,  as  a  condition  of  mandatory
supervised  release, require the defendant, at his or her own
expense, to pursue a course of study  toward  a  high  school
diploma  or  passage  of  the  GED test.  The Prisoner Review
Board shall revoke the  mandatory  supervised  release  of  a
defendant  who  wilfully fails to comply with this subsection
(j-5) upon his or her release from  confinement  in  a  penal
institution  while  serving  a  mandatory  supervised release
term; however, the inability of the defendant after making  a
good  faith  effort  to  obtain  financial aid or pay for the
educational training shall not be deemed a wilful failure  to
comply.    The  Prisoner  Review  Board  shall  recommit  the
defendant whose mandatory supervised release  term  has  been
revoked  under  this  subsection (j-5) as provided in Section
3-3-9.  This subsection (j-5) does not apply to  a  defendant
who  has a high school diploma or has successfully passed the
GED test. This subsection (j-5) does not apply to a defendant
who is determined by the court to be developmentally disabled
or otherwise mentally incapable of completing the educational
or vocational program.
    (k)  A court may not impose a sentence or disposition for
a felony or misdemeanor that requires  the  defendant  to  be
implanted  or  injected  with  or  to  use  any form of birth
control.
    (l) (A)  Except  as  provided   in   paragraph   (C)   of
    subsection  (l), whenever a defendant, who is an alien as
    defined  by  the  Immigration  and  Nationality  Act,  is
    convicted of any felony or misdemeanor offense, the court
    after sentencing the defendant may, upon  motion  of  the
    State's  Attorney,  hold  sentence in abeyance and remand
    the defendant to the custody of the Attorney  General  of
    the  United  States  or his or her designated agent to be
    deported when:
              (1)  a final  order  of  deportation  has  been
         issued against the defendant pursuant to proceedings
         under the Immigration and Nationality Act, and
              (2)  the deportation of the defendant would not
         deprecate the seriousness of the defendant's conduct
         and  would  not  be  inconsistent  with  the ends of
         justice.
         Otherwise,  the  defendant  shall  be  sentenced  as
    provided in this Chapter V.
         (B)  If the defendant has already been sentenced for
    a felony or misdemeanor offense, or has  been  placed  on
    probation under Section 10 of the Cannabis Control Act or
    Section  410  of  the Illinois Controlled Substances Act,
    the court may, upon motion of  the  State's  Attorney  to
    suspend the sentence imposed, commit the defendant to the
    custody  of  the Attorney General of the United States or
    his or her designated agent when:
              (1)  a final  order  of  deportation  has  been
         issued against the defendant pursuant to proceedings
         under the Immigration and Nationality Act, and
              (2)  the deportation of the defendant would not
         deprecate the seriousness of the defendant's conduct
         and  would  not  be  inconsistent  with  the ends of
         justice.
         (C)  This subsection (l) does not apply to offenders
    who are subject to the provisions  of  paragraph  (2)  of
    subsection (a) of Section 3-6-3.
         (D)  Upon  motion  of  the  State's  Attorney,  if a
    defendant sentenced under this  Section  returns  to  the
    jurisdiction of the United States, the defendant shall be
    recommitted to the custody of the county from which he or
    she  was  sentenced.  Thereafter,  the defendant shall be
    brought before the sentencing court, which may impose any
    sentence that was available under Section  5-5-3  at  the
    time  of  initial sentencing.  In addition, the defendant
    shall not be eligible for additional good conduct  credit
    for meritorious service as provided under Section 3-6-6.
    (m)  A   person   convicted  of  criminal  defacement  of
property under Section 21-1.3 of the Criminal Code  of  1961,
in  which  the  property damage exceeds $300 and the property
damaged is a school building, shall  be  ordered  to  perform
community  service  that  may  include  cleanup,  removal, or
painting over the defacement.
(Source: P.A. 90-14, eff. 7-1-97; 90-68, eff. 7-8-97; 90-680,
eff. 1-1-99;  90-685,  eff.  1-1-99;  90-787,  eff.  8-14-98;
91-357,  eff.  7-29-99;  91-404,  eff.  1-1-00;  91-663, eff.
12-22-99; 91-695, eff. 4-13-00.)

    Section 99.  Effective date.  This Act takes effect  upon
becoming law.
    Passed in the General Assembly May 23, 2001.
    Approved August 17, 2001.

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