HB0976 Engrossed LRB094 08689 RXD 38900 b

1     AN ACT in relation to criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Unified Code of Corrections is amended by
5 changing Section 5-5-3 as follows:
 
6     (730 ILCS 5/5-5-3)  (from Ch. 38, par. 1005-5-3)
7     Sec. 5-5-3. Disposition.
8     (a) Except as provided in Section 11-501 of the Illinois
9 Vehicle Code, every person convicted of an offense shall be
10 sentenced as provided in this Section.
11     (b) The following options shall be appropriate
12 dispositions, alone or in combination, for all felonies and
13 misdemeanors other than those identified in subsection (c) of
14 this Section:
15         (1) A period of probation.
16         (2) A term of periodic imprisonment.
17         (3) A term of conditional discharge.
18         (4) A term of imprisonment.
19         (5) An order directing the offender to clean up and
20     repair the damage, if the offender was convicted under
21     paragraph (h) of Section 21-1 of the Criminal Code of 1961
22     (now repealed).
23         (6) A fine.
24         (7) An order directing the offender to make restitution
25     to the victim under Section 5-5-6 of this Code.
26         (8) A sentence of participation in a county impact
27     incarceration program under Section 5-8-1.2 of this Code.
28         (9) A term of imprisonment in combination with a term
29     of probation when the offender has been admitted into a
30     drug court program under Section 20 of the Drug Court
31     Treatment Act.
32         (10) Subject to appropriations, an order directing the

 

 

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1     offender to seek social service counseling, proper medical
2     screening, and treatment in addition to other remedies set
3     forth in this Section, if the offender was convicted under
4     Section 11-14 or 11-18 of the Criminal Code of 1961.
5     Neither a fine nor restitution shall be the sole
6 disposition for a felony and either or both may be imposed only
7 in conjunction with another disposition.
8     (c) (1) When a defendant is found guilty of first degree
9     murder the State may either seek a sentence of imprisonment
10     under Section 5-8-1 of this Code, or where appropriate seek
11     a sentence of death under Section 9-1 of the Criminal Code
12     of 1961.
13         (2) A period of probation, a term of periodic
14     imprisonment or conditional discharge shall not be imposed
15     for the following offenses. The court shall sentence the
16     offender to not less than the minimum term of imprisonment
17     set forth in this Code for the following offenses, and may
18     order a fine or restitution or both in conjunction with
19     such term of imprisonment:
20             (A) First degree murder where the death penalty is
21         not imposed.
22             (B) Attempted first degree murder.
23             (C) A Class X felony.
24             (D) A violation of Section 401.1 or 407 of the
25         Illinois Controlled Substances Act, or a violation of
26         subdivision (c)(1) or (c)(2) of Section 401 of that Act
27         which relates to more than 5 grams of a substance
28         containing heroin or cocaine or an analog thereof.
29             (E) A violation of Section 5.1 or 9 of the Cannabis
30         Control Act.
31             (F) A Class 2 or greater felony if the offender had
32         been convicted of a Class 2 or greater felony within 10
33         years of the date on which the offender committed the
34         offense for which he or she is being sentenced, except
35         as otherwise provided in Section 40-10 of the
36         Alcoholism and Other Drug Abuse and Dependency Act.

 

 

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1             (G) Residential burglary, except as otherwise
2         provided in Section 40-10 of the Alcoholism and Other
3         Drug Abuse and Dependency Act.
4             (H) Criminal sexual assault.
5             (I) Aggravated battery of a senior citizen.
6             (J) A forcible felony if the offense was related to
7         the activities of an organized gang.
8             Before July 1, 1994, for the purposes of this
9         paragraph, "organized gang" means an association of 5
10         or more persons, with an established hierarchy, that
11         encourages members of the association to perpetrate
12         crimes or provides support to the members of the
13         association who do commit crimes.
14             Beginning July 1, 1994, for the purposes of this
15         paragraph, "organized gang" has the meaning ascribed
16         to it in Section 10 of the Illinois Streetgang
17         Terrorism Omnibus Prevention Act.
18             (K) Vehicular hijacking.
19             (L) A second or subsequent conviction for the
20         offense of hate crime when the underlying offense upon
21         which the hate crime is based is felony aggravated
22         assault or felony mob action.
23             (M) A second or subsequent conviction for the
24         offense of institutional vandalism if the damage to the
25         property exceeds $300.
26             (N) A Class 3 felony violation of paragraph (1) of
27         subsection (a) of Section 2 of the Firearm Owners
28         Identification Card Act.
29             (O) A violation of Section 12-6.1 of the Criminal
30         Code of 1961.
31             (P) A violation of paragraph (1), (2), (3), (4),
32         (5), or (7) of subsection (a) of Section 11-20.1 of the
33         Criminal Code of 1961.
34             (Q) A violation of Section 20-1.2 or 20-1.3 of the
35         Criminal Code of 1961.
36             (R) A violation of Section 24-3A of the Criminal

 

 

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1         Code of 1961.
2             (S) (Blank).
3             (T) A second or subsequent violation of paragraph
4         (6.6) of subsection (a), subsection (c-5), or
5         subsection (d-5) of Section 401 of the Illinois
6         Controlled Substances Act.
7         (3) (Blank).
8         (4) A minimum term of imprisonment of not less than 10
9     consecutive days or 30 days of community service shall be
10     imposed for a violation of paragraph (c) of Section 6-303
11     of the Illinois Vehicle Code.
12         (4.1) (Blank).
13         (4.2) Except as provided in paragraph (4.3) of this
14     subsection (c), a minimum of 100 hours of community service
15     shall be imposed for a second violation of Section 6-303 of
16     the Illinois Vehicle Code.
17         (4.3) A minimum term of imprisonment of 30 days or 300
18     hours of community service, as determined by the court,
19     shall be imposed for a second violation of subsection (c)
20     of Section 6-303 of the Illinois Vehicle Code.
21         (4.4) Except as provided in paragraph (4.5) and
22     paragraph (4.6) of this subsection (c), a minimum term of
23     imprisonment of 30 days or 300 hours of community service,
24     as determined by the court, shall be imposed for a third or
25     subsequent violation of Section 6-303 of the Illinois
26     Vehicle Code.
27         (4.5) A minimum term of imprisonment of 30 days shall
28     be imposed for a third violation of subsection (c) of
29     Section 6-303 of the Illinois Vehicle Code.
30         (4.6) A minimum term of imprisonment of 180 days shall
31     be imposed for a fourth or subsequent violation of
32     subsection (c) of Section 6-303 of the Illinois Vehicle
33     Code.
34         (5) The court may sentence an offender convicted of a
35     business offense or a petty offense or a corporation or
36     unincorporated association convicted of any offense to:

 

 

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1             (A) a period of conditional discharge;
2             (B) a fine;
3             (C) make restitution to the victim under Section
4         5-5-6 of this Code.
5         (5.1) In addition to any penalties imposed under
6     paragraph (5) of this subsection (c), and except as
7     provided in paragraph (5.2) or (5.3), a person convicted of
8     violating subsection (c) of Section 11-907 of the Illinois
9     Vehicle Code shall have his or her driver's license,
10     permit, or privileges suspended for at least 90 days but
11     not more than one year, if the violation resulted in damage
12     to the property of another person.
13         (5.2) In addition to any penalties imposed under
14     paragraph (5) of this subsection (c), and except as
15     provided in paragraph (5.3), a person convicted of
16     violating subsection (c) of Section 11-907 of the Illinois
17     Vehicle Code shall have his or her driver's license,
18     permit, or privileges suspended for at least 180 days but
19     not more than 2 years, if the violation resulted in injury
20     to another person.
21         (5.3) In addition to any penalties imposed under
22     paragraph (5) of this subsection (c), a person convicted of
23     violating subsection (c) of Section 11-907 of the Illinois
24     Vehicle Code shall have his or her driver's license,
25     permit, or privileges suspended for 2 years, if the
26     violation resulted in the death of another person.
27         (6) In no case shall an offender be eligible for a
28     disposition of probation or conditional discharge for a
29     Class 1 felony committed while he was serving a term of
30     probation or conditional discharge for a felony.
31         (7) When a defendant is adjudged a habitual criminal
32     under Article 33B of the Criminal Code of 1961, the court
33     shall sentence the defendant to a term of natural life
34     imprisonment.
35         (8) When a defendant, over the age of 21 years, is
36     convicted of a Class 1 or Class 2 felony, after having

 

 

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1     twice been convicted in any state or federal court of an
2     offense that contains the same elements as an offense now
3     classified in Illinois as a Class 2 or greater Class felony
4     and such charges are separately brought and tried and arise
5     out of different series of acts, such defendant shall be
6     sentenced as a Class X offender. This paragraph shall not
7     apply unless (1) the first felony was committed after the
8     effective date of this amendatory Act of 1977; and (2) the
9     second felony was committed after conviction on the first;
10     and (3) the third felony was committed after conviction on
11     the second. A person sentenced as a Class X offender under
12     this paragraph is not eligible to apply for treatment as a
13     condition of probation as provided by Section 40-10 of the
14     Alcoholism and Other Drug Abuse and Dependency Act.
15         (9) A defendant convicted of a second or subsequent
16     offense of ritualized abuse of a child may be sentenced to
17     a term of natural life imprisonment.
18         (10) (Blank).
19         (11) The court shall impose a minimum fine of $1,000
20     for a first offense and $2,000 for a second or subsequent
21     offense upon a person convicted of or placed on supervision
22     for battery when the individual harmed was a sports
23     official or coach at any level of competition and the act
24     causing harm to the sports official or coach occurred
25     within an athletic facility or within the immediate
26     vicinity of the athletic facility at which the sports
27     official or coach was an active participant of the athletic
28     contest held at the athletic facility. For the purposes of
29     this paragraph (11), "sports official" means a person at an
30     athletic contest who enforces the rules of the contest,
31     such as an umpire or referee; "athletic facility" means an
32     indoor or outdoor playing field or recreational area where
33     sports activities are conducted; and "coach" means a person
34     recognized as a coach by the sanctioning authority that
35     conducted the sporting event.
36         (12) (11) A person may not receive a disposition of

 

 

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1     court supervision for a violation of Section 5-16 of the
2     Boat Registration and Safety Act if that person has
3     previously received a disposition of court supervision for
4     a violation of that Section.
5     (d) In any case in which a sentence originally imposed is
6 vacated, the case shall be remanded to the trial court. The
7 trial court shall hold a hearing under Section 5-4-1 of the
8 Unified Code of Corrections which may include evidence of the
9 defendant's life, moral character and occupation during the
10 time since the original sentence was passed. The trial court
11 shall then impose sentence upon the defendant. The trial court
12 may impose any sentence which could have been imposed at the
13 original trial subject to Section 5-5-4 of the Unified Code of
14 Corrections. If a sentence is vacated on appeal or on
15 collateral attack due to the failure of the trier of fact at
16 trial to determine beyond a reasonable doubt the existence of a
17 fact (other than a prior conviction) necessary to increase the
18 punishment for the offense beyond the statutory maximum
19 otherwise applicable, either the defendant may be re-sentenced
20 to a term within the range otherwise provided or, if the State
21 files notice of its intention to again seek the extended
22 sentence, the defendant shall be afforded a new trial.
23     (e) In cases where prosecution for aggravated criminal
24 sexual abuse under Section 12-16 of the Criminal Code of 1961
25 results in conviction of a defendant who was a family member of
26 the victim at the time of the commission of the offense, the
27 court shall consider the safety and welfare of the victim and
28 may impose a sentence of probation only where:
29         (1) the court finds (A) or (B) or both are appropriate:
30             (A) the defendant is willing to undergo a court
31         approved counseling program for a minimum duration of 2
32         years; or
33             (B) the defendant is willing to participate in a
34         court approved plan including but not limited to the
35         defendant's:
36                 (i) removal from the household;

 

 

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1                 (ii) restricted contact with the victim;
2                 (iii) continued financial support of the
3             family;
4                 (iv) restitution for harm done to the victim;
5             and
6                 (v) compliance with any other measures that
7             the court may deem appropriate; and
8         (2) the court orders the defendant to pay for the
9     victim's counseling services, to the extent that the court
10     finds, after considering the defendant's income and
11     assets, that the defendant is financially capable of paying
12     for such services, if the victim was under 18 years of age
13     at the time the offense was committed and requires
14     counseling as a result of the offense.
15     Probation may be revoked or modified pursuant to Section
16 5-6-4; except where the court determines at the hearing that
17 the defendant violated a condition of his or her probation
18 restricting contact with the victim or other family members or
19 commits another offense with the victim or other family
20 members, the court shall revoke the defendant's probation and
21 impose a term of imprisonment.
22     For the purposes of this Section, "family member" and
23 "victim" shall have the meanings ascribed to them in Section
24 12-12 of the Criminal Code of 1961.
25     (f) This Article shall not deprive a court in other
26 proceedings to order a forfeiture of property, to suspend or
27 cancel a license, to remove a person from office, or to impose
28 any other civil penalty.
29     (f-5) Subject to appropriations, a person convicted of
30 prostitution under Section 11-14 of the Criminal Code of 1961
31 shall be referred to a community based behavioral health
32 continuum or care facility for addiction evaluation and
33 treatment which may include, but is not limited to, clinical
34 mentally ill substance abuse screening, stress management,
35 psychosocial rehabilitation, parenting classes, employment
36 skills training, and family reunification activities.

 

 

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1     (g) Whenever a defendant is convicted of an offense under
2 Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 11-18.1,
3 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1, 12-15 or 12-16
4 of the Criminal Code of 1961, the defendant shall undergo
5 medical testing to determine whether the defendant has any
6 sexually transmissible disease, including a test for infection
7 with human immunodeficiency virus (HIV) or any other identified
8 causative agent of acquired immunodeficiency syndrome (AIDS).
9 Any such medical test shall be performed only by appropriately
10 licensed medical practitioners and may include an analysis of
11 any bodily fluids as well as an examination of the defendant's
12 person. Except as otherwise provided by law, the results of
13 such test shall be kept strictly confidential by all medical
14 personnel involved in the testing and must be personally
15 delivered in a sealed envelope to the judge of the court in
16 which the conviction was entered for the judge's inspection in
17 camera. Acting in accordance with the best interests of the
18 victim and the public, the judge shall have the discretion to
19 determine to whom, if anyone, the results of the testing may be
20 revealed. The court shall notify the defendant of the test
21 results. The court shall also notify the victim if requested by
22 the victim, and if the victim is under the age of 15 and if
23 requested by the victim's parents or legal guardian, the court
24 shall notify the victim's parents or legal guardian of the test
25 results. The court shall provide information on the
26 availability of HIV testing and counseling at Department of
27 Public Health facilities to all parties to whom the results of
28 the testing are revealed and shall direct the State's Attorney
29 to provide the information to the victim when possible. A
30 State's Attorney may petition the court to obtain the results
31 of any HIV test administered under this Section, and the court
32 shall grant the disclosure if the State's Attorney shows it is
33 relevant in order to prosecute a charge of criminal
34 transmission of HIV under Section 12-16.2 of the Criminal Code
35 of 1961 against the defendant. The court shall order that the
36 cost of any such test shall be paid by the county and may be

 

 

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1 taxed as costs against the convicted defendant.
2     (g-5) When an inmate is tested for an airborne communicable
3 disease, as determined by the Illinois Department of Public
4 Health including but not limited to tuberculosis, the results
5 of the test shall be personally delivered by the warden or his
6 or her designee in a sealed envelope to the judge of the court
7 in which the inmate must appear for the judge's inspection in
8 camera if requested by the judge. Acting in accordance with the
9 best interests of those in the courtroom, the judge shall have
10 the discretion to determine what if any precautions need to be
11 taken to prevent transmission of the disease in the courtroom.
12     (h) Whenever a defendant is convicted of an offense under
13 Section 1 or 2 of the Hypodermic Syringes and Needles Act, the
14 defendant shall undergo medical testing to determine whether
15 the defendant has been exposed to human immunodeficiency virus
16 (HIV) or any other identified causative agent of acquired
17 immunodeficiency syndrome (AIDS). Except as otherwise provided
18 by law, the results of such test shall be kept strictly
19 confidential by all medical personnel involved in the testing
20 and must be personally delivered in a sealed envelope to the
21 judge of the court in which the conviction was entered for the
22 judge's inspection in camera. Acting in accordance with the
23 best interests of the public, the judge shall have the
24 discretion to determine to whom, if anyone, the results of the
25 testing may be revealed. The court shall notify the defendant
26 of a positive test showing an infection with the human
27 immunodeficiency virus (HIV). The court shall provide
28 information on the availability of HIV testing and counseling
29 at Department of Public Health facilities to all parties to
30 whom the results of the testing are revealed and shall direct
31 the State's Attorney to provide the information to the victim
32 when possible. A State's Attorney may petition the court to
33 obtain the results of any HIV test administered under this
34 Section, and the court shall grant the disclosure if the
35 State's Attorney shows it is relevant in order to prosecute a
36 charge of criminal transmission of HIV under Section 12-16.2 of

 

 

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1 the Criminal Code of 1961 against the defendant. The court
2 shall order that the cost of any such test shall be paid by the
3 county and may be taxed as costs against the convicted
4 defendant.
5     (i) All fines and penalties imposed under this Section for
6 any violation of Chapters 3, 4, 6, and 11 of the Illinois
7 Vehicle Code, or a similar provision of a local ordinance, and
8 any violation of the Child Passenger Protection Act, or a
9 similar provision of a local ordinance, shall be collected and
10 disbursed by the circuit clerk as provided under Section 27.5
11 of the Clerks of Courts Act.
12     (j) In cases when prosecution for any violation of Section
13 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1, 11-16, 11-17,
14 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1, 11-19.2, 11-20.1,
15 11-21, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal
16 Code of 1961, any violation of the Illinois Controlled
17 Substances Act, or any violation of the Cannabis Control Act
18 results in conviction, a disposition of court supervision, or
19 an order of probation granted under Section 10 of the Cannabis
20 Control Act or Section 410 of the Illinois Controlled Substance
21 Act of a defendant, the court shall determine whether the
22 defendant is employed by a facility or center as defined under
23 the Child Care Act of 1969, a public or private elementary or
24 secondary school, or otherwise works with children under 18
25 years of age on a daily basis. When a defendant is so employed,
26 the court shall order the Clerk of the Court to send a copy of
27 the judgment of conviction or order of supervision or probation
28 to the defendant's employer by certified mail. If the employer
29 of the defendant is a school, the Clerk of the Court shall
30 direct the mailing of a copy of the judgment of conviction or
31 order of supervision or probation to the appropriate regional
32 superintendent of schools. The regional superintendent of
33 schools shall notify the State Board of Education of any
34 notification under this subsection.
35     (j-5) A defendant at least 17 years of age who is convicted
36 of a felony and who has not been previously convicted of a

 

 

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1 misdemeanor or felony and who is sentenced to a term of
2 imprisonment in the Illinois Department of Corrections shall as
3 a condition of his or her sentence be required by the court to
4 attend educational courses designed to prepare the defendant
5 for a high school diploma and to work toward a high school
6 diploma or to work toward passing the high school level Test of
7 General Educational Development (GED) or to work toward
8 completing a vocational training program offered by the
9 Department of Corrections. If a defendant fails to complete the
10 educational training required by his or her sentence during the
11 term of incarceration, the Prisoner Review Board shall, as a
12 condition of mandatory supervised release, require the
13 defendant, at his or her own expense, to pursue a course of
14 study toward a high school diploma or passage of the GED test.
15 The Prisoner Review Board shall revoke the mandatory supervised
16 release of a defendant who wilfully fails to comply with this
17 subsection (j-5) upon his or her release from confinement in a
18 penal institution while serving a mandatory supervised release
19 term; however, the inability of the defendant after making a
20 good faith effort to obtain financial aid or pay for the
21 educational training shall not be deemed a wilful failure to
22 comply. The Prisoner Review Board shall recommit the defendant
23 whose mandatory supervised release term has been revoked under
24 this subsection (j-5) as provided in Section 3-3-9. This
25 subsection (j-5) does not apply to a defendant who has a high
26 school diploma or has successfully passed the GED test. This
27 subsection (j-5) does not apply to a defendant who is
28 determined by the court to be developmentally disabled or
29 otherwise mentally incapable of completing the educational or
30 vocational program.
31     (k) A court may not impose a sentence or disposition for a
32 felony or misdemeanor that requires the defendant to be
33 implanted or injected with or to use any form of birth control.
34     (l) (A) Except as provided in paragraph (C) of subsection
35     (l), whenever a defendant, who is an alien as defined by
36     the Immigration and Nationality Act, is convicted of any

 

 

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1     felony or misdemeanor offense, the court after sentencing
2     the defendant may, upon motion of the State's Attorney,
3     hold sentence in abeyance and remand the defendant to the
4     custody of the Attorney General of the United States or his
5     or her designated agent to be deported when:
6             (1) a final order of deportation has been issued
7         against the defendant pursuant to proceedings under
8         the Immigration and Nationality Act, and
9             (2) the deportation of the defendant would not
10         deprecate the seriousness of the defendant's conduct
11         and would not be inconsistent with the ends of justice.
12         Otherwise, the defendant shall be sentenced as
13     provided in this Chapter V.
14         (B) If the defendant has already been sentenced for a
15     felony or misdemeanor offense, or has been placed on
16     probation under Section 10 of the Cannabis Control Act or
17     Section 410 of the Illinois Controlled Substances Act, the
18     court may, upon motion of the State's Attorney to suspend
19     the sentence imposed, commit the defendant to the custody
20     of the Attorney General of the United States or his or her
21     designated agent when:
22             (1) a final order of deportation has been issued
23         against the defendant pursuant to proceedings under
24         the Immigration and Nationality Act, and
25             (2) the deportation of the defendant would not
26         deprecate the seriousness of the defendant's conduct
27         and would not be inconsistent with the ends of justice.
28         (C) This subsection (l) does not apply to offenders who
29     are subject to the provisions of paragraph (2) of
30     subsection (a) of Section 3-6-3.
31         (D) Upon motion of the State's Attorney, if a defendant
32     sentenced under this Section returns to the jurisdiction of
33     the United States, the defendant shall be recommitted to
34     the custody of the county from which he or she was
35     sentenced. Thereafter, the defendant shall be brought
36     before the sentencing court, which may impose any sentence

 

 

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1     that was available under Section 5-5-3 at the time of
2     initial sentencing. In addition, the defendant shall not be
3     eligible for additional good conduct credit for
4     meritorious service as provided under Section 3-6-6.
5     (m) A person convicted of criminal defacement of property
6 under Section 21-1.3 of the Criminal Code of 1961, in which the
7 property damage exceeds $300 and the property damaged is a
8 school building, shall be ordered to perform community service
9 that may include cleanup, removal, or painting over the
10 defacement.
11     (n) The court may sentence a person convicted of a
12 violation of Section 12-19, 12-21, or 16-1.3 of the Criminal
13 Code of 1961 (i) to an impact incarceration program if the
14 person is otherwise eligible for that program under Section
15 5-8-1.1, (ii) to community service, or (iii) if the person is
16 an addict or alcoholic, as defined in the Alcoholism and Other
17 Drug Abuse and Dependency Act, to a substance or alcohol abuse
18 program licensed under that Act.
19 (Source: P.A. 92-183, eff. 7-27-01; 92-248, eff. 8-3-01;
20 92-283, eff. 1-1-02; 92-340, eff. 8-10-01; 92-418, eff.
21 8-17-01; 92-422, eff. 8-17-01; 92-651, eff. 7-11-02; 92-698,
22 eff. 7-19-02; 93-44, eff. 7-1-03; 93-156, eff. 1-1-04; 93-169,
23 eff. 7-10-03; 93-301, eff. 1-1-04; 93-419, eff. 1-1-04; 93-546,
24 eff. 1-1-04; 93-694, eff. 7-9-04; 93-782, eff. 1-1-05; 93-800,
25 eff. 1-1-05; 93-1014, eff. 1-1-05; revised 10-25-04.)