97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB0081

 

Introduced 1/12/2011, by Rep. Annazette Collins

 

SYNOPSIS AS INTRODUCED:
 
705 ILCS 405/5-130

    Amends the Juvenile Court Act of 1987. Makes a technical change in a Section concerning delinquent minors.


LRB097 05049 RLC 45089 b

 

 

A BILL FOR

 

HB0081LRB097 05049 RLC 45089 b

1    AN ACT concerning courts.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Juvenile Court Act of 1987 is amended by
5changing Section 5-130 as follows:
 
6    (705 ILCS 405/5-130)
7    Sec. 5-130. Excluded jurisdiction.
8    (1) (a) The The definition of delinquent minor under
9Section 5-120 of this Article shall not apply to any minor who
10at the time of an offense was at least 15 years of age and who
11is charged with: (i) first degree murder, (ii) aggravated
12criminal sexual assault, (iii) aggravated battery with a
13firearm where the minor personally discharged a firearm as
14defined in Section 2-15.5 of the Criminal Code of 1961, (iv)
15armed robbery when the armed robbery was committed with a
16firearm, or (v) aggravated vehicular hijacking when the
17hijacking was committed with a firearm.
18    These charges and all other charges arising out of the same
19incident shall be prosecuted under the criminal laws of this
20State.
21    (b) (i) If before trial or plea an information or
22indictment is filed that does not charge an offense specified
23in paragraph (a) of this subsection (1) the State's Attorney

 

 

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1may proceed on any lesser charge or charges, but only in
2Juvenile Court under the provisions of this Article. The
3State's Attorney may proceed under the Criminal Code of 1961 on
4a lesser charge if before trial the minor defendant knowingly
5and with advice of counsel waives, in writing, his or her right
6to have the matter proceed in Juvenile Court.
7    (ii) If before trial or plea an information or indictment
8is filed that includes one or more charges specified in
9paragraph (a) of this subsection (1) and additional charges
10that are not specified in that paragraph, all of the charges
11arising out of the same incident shall be prosecuted under the
12Criminal Code of 1961.
13    (c) (i) If after trial or plea the minor is convicted of
14any offense covered by paragraph (a) of this subsection (1),
15then, in sentencing the minor, the court shall have available
16any or all dispositions prescribed for that offense under
17Chapter V of the Unified Code of Corrections.
18    (ii) If after trial or plea the court finds that the minor
19committed an offense not covered by paragraph (a) of this
20subsection (1), that finding shall not invalidate the verdict
21or the prosecution of the minor under the criminal laws of the
22State; however, unless the State requests a hearing for the
23purpose of sentencing the minor under Chapter V of the Unified
24Code of Corrections, the Court must proceed under Sections
255-705 and 5-710 of this Article. To request a hearing, the
26State must file a written motion within 10 days following the

 

 

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1entry of a finding or the return of a verdict. Reasonable
2notice of the motion shall be given to the minor or his or her
3counsel. If the motion is made by the State, the court shall
4conduct a hearing to determine if the minor should be sentenced
5under Chapter V of the Unified Code of Corrections. In making
6its determination, the court shall consider among other
7matters: (a) whether there is evidence that the offense was
8committed in an aggressive and premeditated manner; (b) the age
9of the minor; (c) the previous history of the minor; (d)
10whether there are facilities particularly available to the
11Juvenile Court or the Department of Juvenile Justice for the
12treatment and rehabilitation of the minor; (e) whether the
13security of the public requires sentencing under Chapter V of
14the Unified Code of Corrections; and (f) whether the minor
15possessed a deadly weapon when committing the offense. The
16rules of evidence shall be the same as if at trial. If after
17the hearing the court finds that the minor should be sentenced
18under Chapter V of the Unified Code of Corrections, then the
19court shall sentence the minor accordingly having available to
20it any or all dispositions so prescribed.
21    (2) (Blank).
22    (3) (a) The definition of delinquent minor under Section
235-120 of this Article shall not apply to any minor who at the
24time of the offense was at least 15 years of age and who is
25charged with a violation of the provisions of paragraph (1),
26(3), (4), or (10) of subsection (a) of Section 24-1 of the

 

 

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1Criminal Code of 1961 while in school, regardless of the time
2of day or the time of year, or on the real property comprising
3any school, regardless of the time of day or the time of year.
4School is defined, for purposes of this Section as any public
5or private elementary or secondary school, community college,
6college, or university. These charges and all other charges
7arising out of the same incident shall be prosecuted under the
8criminal laws of this State.
9    (b) (i) If before trial or plea an information or
10indictment is filed that does not charge an offense specified
11in paragraph (a) of this subsection (3) the State's Attorney
12may proceed on any lesser charge or charges, but only in
13Juvenile Court under the provisions of this Article. The
14State's Attorney may proceed under the criminal laws of this
15State on a lesser charge if before trial the minor defendant
16knowingly and with advice of counsel waives, in writing, his or
17her right to have the matter proceed in Juvenile Court.
18    (ii) If before trial or plea an information or indictment
19is filed that includes one or more charges specified in
20paragraph (a) of this subsection (3) and additional charges
21that are not specified in that paragraph, all of the charges
22arising out of the same incident shall be prosecuted under the
23criminal laws of this State.
24    (c) (i) If after trial or plea the minor is convicted of
25any offense covered by paragraph (a) of this subsection (3),
26then, in sentencing the minor, the court shall have available

 

 

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1any or all dispositions prescribed for that offense under
2Chapter V of the Unified Code of Corrections.
3    (ii) If after trial or plea the court finds that the minor
4committed an offense not covered by paragraph (a) of this
5subsection (3), that finding shall not invalidate the verdict
6or the prosecution of the minor under the criminal laws of the
7State; however, unless the State requests a hearing for the
8purpose of sentencing the minor under Chapter V of the Unified
9Code of Corrections, the Court must proceed under Sections
105-705 and 5-710 of this Article. To request a hearing, the
11State must file a written motion within 10 days following the
12entry of a finding or the return of a verdict. Reasonable
13notice of the motion shall be given to the minor or his or her
14counsel. If the motion is made by the State, the court shall
15conduct a hearing to determine if the minor should be sentenced
16under Chapter V of the Unified Code of Corrections. In making
17its determination, the court shall consider among other
18matters: (a) whether there is evidence that the offense was
19committed in an aggressive and premeditated manner; (b) the age
20of the minor; (c) the previous history of the minor; (d)
21whether there are facilities particularly available to the
22Juvenile Court or the Department of Juvenile Justice for the
23treatment and rehabilitation of the minor; (e) whether the
24security of the public requires sentencing under Chapter V of
25the Unified Code of Corrections; and (f) whether the minor
26possessed a deadly weapon when committing the offense. The

 

 

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1rules of evidence shall be the same as if at trial. If after
2the hearing the court finds that the minor should be sentenced
3under Chapter V of the Unified Code of Corrections, then the
4court shall sentence the minor accordingly having available to
5it any or all dispositions so prescribed.
6    (4) (a) The definition of delinquent minor under Section
75-120 of this Article shall not apply to any minor who at the
8time of an offense was at least 13 years of age and who is
9charged with first degree murder committed during the course of
10either aggravated criminal sexual assault, criminal sexual
11assault, or aggravated kidnaping. However, this subsection (4)
12does not include a minor charged with first degree murder based
13exclusively upon the accountability provisions of the Criminal
14Code of 1961.
15    (b) (i) If before trial or plea an information or
16indictment is filed that does not charge first degree murder
17committed during the course of aggravated criminal sexual
18assault, criminal sexual assault, or aggravated kidnaping, the
19State's Attorney may proceed on any lesser charge or charges,
20but only in Juvenile Court under the provisions of this
21Article. The State's Attorney may proceed under the criminal
22laws of this State on a lesser charge if before trial the minor
23defendant knowingly and with advice of counsel waives, in
24writing, his or her right to have the matter proceed in
25Juvenile Court.
26    (ii) If before trial or plea an information or indictment

 

 

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1is filed that includes first degree murder committed during the
2course of aggravated criminal sexual assault, criminal sexual
3assault, or aggravated kidnaping, and additional charges that
4are not specified in paragraph (a) of this subsection, all of
5the charges arising out of the same incident shall be
6prosecuted under the criminal laws of this State.
7    (c) (i) If after trial or plea the minor is convicted of
8first degree murder committed during the course of aggravated
9criminal sexual assault, criminal sexual assault, or
10aggravated kidnaping, in sentencing the minor, the court shall
11have available any or all dispositions prescribed for that
12offense under Chapter V of the Unified Code of Corrections.
13    (ii) If the minor was not yet 15 years of age at the time of
14the offense, and if after trial or plea the court finds that
15the minor committed an offense other than first degree murder
16committed during the course of either aggravated criminal
17sexual assault, criminal sexual assault, or aggravated
18kidnapping, the finding shall not invalidate the verdict or the
19prosecution of the minor under the criminal laws of the State;
20however, unless the State requests a hearing for the purpose of
21sentencing the minor under Chapter V of the Unified Code of
22Corrections, the Court must proceed under Sections 5-705 and
235-710 of this Article. To request a hearing, the State must
24file a written motion within 10 days following the entry of a
25finding or the return of a verdict. Reasonable notice of the
26motion shall be given to the minor or his or her counsel. If

 

 

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1the motion is made by the State, the court shall conduct a
2hearing to determine whether the minor should be sentenced
3under Chapter V of the Unified Code of Corrections. In making
4its determination, the court shall consider among other
5matters: (a) whether there is evidence that the offense was
6committed in an aggressive and premeditated manner; (b) the age
7of the minor; (c) the previous delinquent history of the minor;
8(d) whether there are facilities particularly available to the
9Juvenile Court or the Department of Juvenile Justice for the
10treatment and rehabilitation of the minor; (e) whether the best
11interest of the minor and the security of the public require
12sentencing under Chapter V of the Unified Code of Corrections;
13and (f) whether the minor possessed a deadly weapon when
14committing the offense. The rules of evidence shall be the same
15as if at trial. If after the hearing the court finds that the
16minor should be sentenced under Chapter V of the Unified Code
17of Corrections, then the court shall sentence the minor
18accordingly having available to it any or all dispositions so
19prescribed.
20    (5) (a) The definition of delinquent minor under Section
215-120 of this Article shall not apply to any minor who is
22charged with a violation of subsection (a) of Section 31-6 or
23Section 32-10 of the Criminal Code of 1961 when the minor is
24subject to prosecution under the criminal laws of this State as
25a result of the application of the provisions of Section 5-125,
26or subsection (1) or (2) of this Section. These charges and all

 

 

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1other charges arising out of the same incident shall be
2prosecuted under the criminal laws of this State.
3    (b) (i) If before trial or plea an information or
4indictment is filed that does not charge an offense specified
5in paragraph (a) of this subsection (5), the State's Attorney
6may proceed on any lesser charge or charges, but only in
7Juvenile Court under the provisions of this Article. The
8State's Attorney may proceed under the criminal laws of this
9State on a lesser charge if before trial the minor defendant
10knowingly and with advice of counsel waives, in writing, his or
11her right to have the matter proceed in Juvenile Court.
12    (ii) If before trial or plea an information or indictment
13is filed that includes one or more charges specified in
14paragraph (a) of this subsection (5) and additional charges
15that are not specified in that paragraph, all of the charges
16arising out of the same incident shall be prosecuted under the
17criminal laws of this State.
18    (c) (i) If after trial or plea the minor is convicted of
19any offense covered by paragraph (a) of this subsection (5),
20then, in sentencing the minor, the court shall have available
21any or all dispositions prescribed for that offense under
22Chapter V of the Unified Code of Corrections.
23    (ii) If after trial or plea the court finds that the minor
24committed an offense not covered by paragraph (a) of this
25subsection (5), the conviction shall not invalidate the verdict
26or the prosecution of the minor under the criminal laws of this

 

 

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1State; however, unless the State requests a hearing for the
2purpose of sentencing the minor under Chapter V of the Unified
3Code of Corrections, the Court must proceed under Sections
45-705 and 5-710 of this Article. To request a hearing, the
5State must file a written motion within 10 days following the
6entry of a finding or the return of a verdict. Reasonable
7notice of the motion shall be given to the minor or his or her
8counsel. If the motion is made by the State, the court shall
9conduct a hearing to determine if whether the minor should be
10sentenced under Chapter V of the Unified Code of Corrections.
11In making its determination, the court shall consider among
12other matters: (a) whether there is evidence that the offense
13was committed in an aggressive and premeditated manner; (b) the
14age of the minor; (c) the previous delinquent history of the
15minor; (d) whether there are facilities particularly available
16to the Juvenile Court or the Department of Juvenile Justice for
17the treatment and rehabilitation of the minor; (e) whether the
18security of the public requires sentencing under Chapter V of
19the Unified Code of Corrections; and (f) whether the minor
20possessed a deadly weapon when committing the offense. The
21rules of evidence shall be the same as if at trial. If after
22the hearing the court finds that the minor should be sentenced
23under Chapter V of the Unified Code of Corrections, then the
24court shall sentence the minor accordingly having available to
25it any or all dispositions so prescribed.
26    (6) The definition of delinquent minor under Section 5-120

 

 

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1of this Article shall not apply to any minor who, pursuant to
2subsection (1) or (3) or Section 5-805 or 5-810, has previously
3been placed under the jurisdiction of the criminal court and
4has been convicted of a crime under an adult criminal or penal
5statute. Such a minor shall be subject to prosecution under the
6criminal laws of this State.
7    (7) The procedures set out in this Article for the
8investigation, arrest and prosecution of juvenile offenders
9shall not apply to minors who are excluded from jurisdiction of
10the Juvenile Court, except that minors under 17 years of age
11shall be kept separate from confined adults.
12    (8) Nothing in this Act prohibits or limits the prosecution
13of any minor for an offense committed on or after his or her
1417th birthday even though he or she is at the time of the
15offense a ward of the court.
16    (9) If an original petition for adjudication of wardship
17alleges the commission by a minor 13 years of age or over of an
18act that constitutes a crime under the laws of this State, the
19minor, with the consent of his or her counsel, may, at any time
20before commencement of the adjudicatory hearing, file with the
21court a motion that criminal prosecution be ordered and that
22the petition be dismissed insofar as the act or acts involved
23in the criminal proceedings are concerned. If such a motion is
24filed as herein provided, the court shall enter its order
25accordingly.
26    (10) If, prior to August 12, 2005 (the effective date of

 

 

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1Public Act 94-574), a minor is charged with a violation of
2Section 401 of the Illinois Controlled Substances Act under the
3criminal laws of this State, other than a minor charged with a
4Class X felony violation of the Illinois Controlled Substances
5Act or the Methamphetamine Control and Community Protection
6Act, any party including the minor or the court sua sponte may,
7before trial, move for a hearing for the purpose of trying and
8sentencing the minor as a delinquent minor. To request a
9hearing, the party must file a motion prior to trial.
10Reasonable notice of the motion shall be given to all parties.
11On its own motion or upon the filing of a motion by one of the
12parties including the minor, the court shall conduct a hearing
13to determine whether the minor should be tried and sentenced as
14a delinquent minor under this Article. In making its
15determination, the court shall consider among other matters:
16    (a) The age of the minor;
17    (b) Any previous delinquent or criminal history of the
18minor;
19    (c) Any previous abuse or neglect history of the minor;
20    (d) Any mental health or educational history of the minor,
21or both; and
22    (e) Whether there is probable cause to support the charge,
23whether the minor is charged through accountability, and
24whether there is evidence the minor possessed a deadly weapon
25or caused serious bodily harm during the offense.
26    Any material that is relevant and reliable shall be

 

 

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1admissible at the hearing. In all cases, the judge shall enter
2an order permitting prosecution under the criminal laws of
3Illinois unless the judge makes a finding based on a
4preponderance of the evidence that the minor would be amenable
5to the care, treatment, and training programs available through
6the facilities of the juvenile court based on an evaluation of
7the factors listed in this subsection (10).
8(Source: P.A. 94-556, eff. 9-11-05; 94-574, eff. 8-12-05;
994-696, eff. 6-1-06.)