Sen. Toi W. Hutchinson

Filed: 4/11/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1035

2    AMENDMENT NO. ______. Amend Senate Bill 1035 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Criminal Procedure of 1963 is
5amended by adding Section 115-17b as follows:
 
6    (725 ILCS 5/115-17b new)
7    Sec. 115-17b. Administrative subpoenas.
8    (a) Definitions. As used in this Section:
9        "Electronic communication services" and "remote
10    computing services" have the same meaning as provided in
11    the Electronic Communications Privacy Act in Chapter 121
12    (commencing with Section 2701) of Part I of Title 18 of the
13    United States Code Annotated.
14        "Offense involving the sexual exploitation of
15    children" means an offense under Section 11-6, 11-6.5,
16    11-9.1, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2,

 

 

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1    11-20.1, 11-20.3, 11-21, 11-23, 12-13, 12-14, 12-14.1,
2    12-15, or 12-16 of the Criminal Code of 1961 or any attempt
3    to commit any of these offenses.
4    (b) Subpoenas duces tecum. In any criminal investigation of
5an offense involving the sexual exploitation of children, the
6Attorney General, or his or her designee, or a State's
7Attorney, or his or her designee, may issue in writing and
8cause to be served subpoenas duces tecum to providers of
9electronic communication services or remote computing services
10requiring the production of records relevant to the
11investigation. Any such request for records shall not extend
12beyond requiring the provider to disclose the information
13specified in 18 U.S.C. 2703(c)(2). Any subpoena duces tecum
14issued under this Section shall be made returnable to the Chief
15Judge of the Circuit Court for the Circuit in which the State's
16Attorney resides, or his or her designee, or for subpoenas
17issued by the Attorney General, the subpoena shall be made
18returnable to the Chief Judge of the Circuit Court for the
19Circuit to which the investigation pertains, or his or her
20designee, to determine whether the documents are privileged and
21whether the subpoena is unreasonable or oppressive.
22    (c) Contents of subpoena. A subpoena under this Section
23shall describe the records or other things required to be
24produced and prescribe a return date within a reasonable period
25of time within which the objects or records can be assembled
26and made available.

 

 

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1    (c-5) Contemporaneous notice to Chief Judge. Whenever a
2subpoena is issued under this Section the Attorney General or
3his or her designee or the State's Attorney or his of her
4designee shall be required to provide a copy of the subpoena to
5the Chief Judge of the county in which the subpoena is
6returnable.
7    (d) Modifying or quashing subpoena. At any time before the
8return date specified in the subpoena, the person or entity to
9whom the subpoena is directed may petition for an order
10modifying or quashing the subpoena on the grounds that the
11subpoena is oppressive or unreasonable or that the subpoena
12seeks privileged documents or records.
13    (e) Ex parte order. An Illinois circuit court for the
14circuit in which the subpoena is or will be issued, upon
15application of the Attorney General, or his or her designee, or
16State's Attorney, or his or her designee, may issue an ex parte
17order that no person or entity disclose to any other person or
18entity (other than persons necessary to comply with the
19subpoena) the existence of such subpoena for a period of up to
2090 days.
21        (1) Such order may be issued upon a showing that the
22    things being sought may be relevant to the investigation
23    and there is reason to believe that such disclosure may
24    result in:
25            (A) endangerment to the life or physical safety of
26        any person;

 

 

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1            (B) flight to avoid prosecution;
2            (C) destruction of or tampering with evidence;
3            (D) intimidation of potential witnesses; or
4            (E) otherwise seriously jeopardizing an
5        investigation or unduly delaying a trial.
6        (2) An order under this Section may be renewed for
7    additional periods of up to 90 days upon a showing that the
8    circumstances described in paragraph (1) of this
9    subsection (e) continue to exist.
10    (f) Enforcement. A witness who is duly subpoenaed who
11neglects or refuses to comply with the subpoena shall be
12proceeded against and punished for contempt of the court. A
13subpoena duces tecum issued under this Section may be enforced
14pursuant to the Uniform Act to Secure the Attendance of
15Witnesses from Within or Without a State in Criminal
16Proceedings.
17    (g) Immunity From civil liability. Notwithstanding any
18federal, State, or local law, any person, including officers,
19agents, and employees, receiving a subpoena under this Section,
20who complies in good faith with the subpoena and thus produces
21the materials sought, shall not be liable in any court of
22Illinois to any customer or other person for such production or
23for nondisclosure of that production to the customer.
 
24    Section 10. The Unified Code of Corrections is amended by
25changing Section 5-8-4 as follows:
 

 

 

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1    (730 ILCS 5/5-8-4)  (from Ch. 38, par. 1005-8-4)
2    Sec. 5-8-4. Concurrent and consecutive terms of
3imprisonment.
4    (a) Concurrent terms; multiple or additional sentences.
5When an Illinois court (i) imposes multiple sentences of
6imprisonment on a defendant at the same time or (ii) imposes a
7sentence of imprisonment on a defendant who is already subject
8to a sentence of imprisonment imposed by an Illinois court, a
9court of another state, or a federal court, then the sentences
10shall run concurrently unless otherwise determined by the
11Illinois court under this Section.
12    (b) Concurrent terms; misdemeanor and felony. A defendant
13serving a sentence for a misdemeanor who is convicted of a
14felony and sentenced to imprisonment shall be transferred to
15the Department of Corrections, and the misdemeanor sentence
16shall be merged in and run concurrently with the felony
17sentence.
18    (c) Consecutive terms; permissive. The court may impose
19consecutive sentences in any of the following circumstances:
20        (1) If, having regard to the nature and circumstances
21    of the offense and the history and character of the
22    defendant, it is the opinion of the court that consecutive
23    sentences are required to protect the public from further
24    criminal conduct by the defendant, the basis for which the
25    court shall set forth in the record.

 

 

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1        (2) If one of the offenses for which a defendant was
2    convicted was a violation of Section 32-5.2 (aggravated
3    false personation of a peace officer) of the Criminal Code
4    of 1961 (720 ILCS 5/32-5.2) and the offense was committed
5    in attempting or committing a forcible felony.
6    (d) Consecutive terms; mandatory. The court shall impose
7consecutive sentences in each of the following circumstances:
8        (1) One of the offenses for which the defendant was
9    convicted was first degree murder or a Class X or Class 1
10    felony and the defendant inflicted severe bodily injury.
11        (2) The defendant was convicted of a violation of
12    Section 11-20.1 (child pornography), 11-20.3 (aggravated
13    child pornography), 12-13 (criminal sexual assault), 12-14
14    (aggravated criminal sexual assault), or 12-14.1
15    (predatory criminal sexual assault of a child) of the
16    Criminal Code of 1961 (720 ILCS 5/11-20.1, 5/11-20.3,
17    5/12-13, 5/12-14, or 5/12-14.1).
18        (3) The defendant was convicted of armed violence based
19    upon the predicate offense of any of the following:
20    solicitation of murder, solicitation of murder for hire,
21    heinous battery, aggravated battery of a senior citizen,
22    criminal sexual assault, a violation of subsection (g) of
23    Section 5 of the Cannabis Control Act (720 ILCS 550/5),
24    cannabis trafficking, a violation of subsection (a) of
25    Section 401 of the Illinois Controlled Substances Act (720
26    ILCS 570/401), controlled substance trafficking involving

 

 

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1    a Class X felony amount of controlled substance under
2    Section 401 of the Illinois Controlled Substances Act (720
3    ILCS 570/401), a violation of the Methamphetamine Control
4    and Community Protection Act (720 ILCS 646/), calculated
5    criminal drug conspiracy, or streetgang criminal drug
6    conspiracy.
7        (4) The defendant was convicted of the offense of
8    leaving the scene of a motor vehicle accident involving
9    death or personal injuries under Section 11-401 of the
10    Illinois Vehicle Code (625 ILCS 5/11-401) and either: (A)
11    aggravated driving under the influence of alcohol, other
12    drug or drugs, or intoxicating compound or compounds, or
13    any combination thereof under Section 11-501 of the
14    Illinois Vehicle Code (625 ILCS 5/11-501), (B) reckless
15    homicide under Section 9-3 of the Criminal Code of 1961
16    (720 ILCS 5/9-3), or (C) both an offense described in item
17    (A) and an offense described in item (B).
18        (5) The defendant was convicted of a violation of
19    Section 9-3.1 (concealment of homicidal death) or Section
20    12-20.5 (dismembering a human body) of the Criminal Code of
21    1961 (720 ILCS 5/9-3.1 or 5/12-20.5).
22        (5.5) The defendant was convicted of a violation of
23    Section 24-3.7 (use of a stolen firearm in the commission
24    of an offense) of the Criminal Code of 1961.
25        (6) If the defendant was in the custody of the
26    Department of Corrections at the time of the commission of

 

 

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1    the offense, the sentence shall be served consecutive to
2    the sentence under which the defendant is held by the
3    Department of Corrections. If, however, the defendant is
4    sentenced to punishment by death, the sentence shall be
5    executed at such time as the court may fix without regard
6    to the sentence under which the defendant may be held by
7    the Department.
8        (7) A sentence under Section 3-6-4 (730 ILCS 5/3-6-4)
9    for escape or attempted escape shall be served consecutive
10    to the terms under which the offender is held by the
11    Department of Corrections.
12        (8) If a person charged with a felony commits a
13    separate felony while on pretrial release or in pretrial
14    detention in a county jail facility or county detention
15    facility, then the sentences imposed upon conviction of
16    these felonies shall be served consecutively regardless of
17    the order in which the judgments of conviction are entered.
18        (8.5) If a person commits a battery against a county
19    correctional officer or sheriff's employee while serving a
20    sentence or in pretrial detention in a county jail
21    facility, then the sentence imposed upon conviction of the
22    battery shall be served consecutively with the sentence
23    imposed upon conviction of the earlier misdemeanor or
24    felony, regardless of the order in which the judgments of
25    conviction are entered.
26        (9) If a person admitted to bail following conviction

 

 

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1    of a felony commits a separate felony while free on bond or
2    if a person detained in a county jail facility or county
3    detention facility following conviction of a felony
4    commits a separate felony while in detention, then any
5    sentence following conviction of the separate felony shall
6    be consecutive to that of the original sentence for which
7    the defendant was on bond or detained.
8        (10) If a person is found to be in possession of an
9    item of contraband, as defined in clause (c)(2) of Section
10    31A-1.1 of the Criminal Code of 1961, while serving a
11    sentence in a county jail or while in pre-trial detention
12    in a county jail, the sentence imposed upon conviction for
13    the offense of possessing contraband in a penal institution
14    shall be served consecutively to the sentence imposed for
15    the offense in which the person is serving sentence in the
16    county jail or serving pretrial detention, regardless of
17    the order in which the judgments of conviction are entered.
18        (11) If a person is sentenced for a violation of bail
19    bond under Section 32-10 of the Criminal Code of 1961, any
20    sentence imposed for that violation shall be served
21    consecutive to the sentence imposed for the charge for
22    which bail had been granted and with respect to which the
23    defendant has been convicted.
24    (e) Consecutive terms; subsequent non-Illinois term. If an
25Illinois court has imposed a sentence of imprisonment on a
26defendant and the defendant is subsequently sentenced to a term

 

 

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1of imprisonment by a court of another state or a federal court,
2then the Illinois sentence shall run consecutively to the
3sentence imposed by the court of the other state or the federal
4court. That same Illinois court, however, may order that the
5Illinois sentence run concurrently with the sentence imposed by
6the court of the other state or the federal court, but only if
7the defendant applies to that same Illinois court within 30
8days after the sentence imposed by the court of the other state
9or the federal court is finalized.
10    (f) Consecutive terms; aggregate maximums and minimums.
11The aggregate maximum and aggregate minimum of consecutive
12sentences shall be determined as follows:
13        (1) For sentences imposed under law in effect prior to
14    February 1, 1978, the aggregate maximum of consecutive
15    sentences shall not exceed the maximum term authorized
16    under Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of
17    Chapter V for the 2 most serious felonies involved. The
18    aggregate minimum period of consecutive sentences shall
19    not exceed the highest minimum term authorized under
20    Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter
21    V for the 2 most serious felonies involved. When sentenced
22    only for misdemeanors, a defendant shall not be
23    consecutively sentenced to more than the maximum for one
24    Class A misdemeanor.
25        (2) For sentences imposed under the law in effect on or
26    after February 1, 1978, the aggregate of consecutive

 

 

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1    sentences for offenses that were committed as part of a
2    single course of conduct during which there was no
3    substantial change in the nature of the criminal objective
4    shall not exceed the sum of the maximum terms authorized
5    under Article 4.5 of Chapter V for the 2 most serious
6    felonies involved, but no such limitation shall apply for
7    offenses that were not committed as part of a single course
8    of conduct during which there was no substantial change in
9    the nature of the criminal objective. When sentenced only
10    for misdemeanors, a defendant shall not be consecutively
11    sentenced to more than the maximum for one Class A
12    misdemeanor.
13    (g) Consecutive terms; manner served. In determining the
14manner in which consecutive sentences of imprisonment, one or
15more of which is for a felony, will be served, the Department
16of Corrections shall treat the defendant as though he or she
17had been committed for a single term subject to each of the
18following:
19        (1) The maximum period of a term of imprisonment shall
20    consist of the aggregate of the maximums of the imposed
21    indeterminate terms, if any, plus the aggregate of the
22    imposed determinate sentences for felonies, plus the
23    aggregate of the imposed determinate sentences for
24    misdemeanors, subject to subsection (f) of this Section.
25        (2) The parole or mandatory supervised release term
26    shall be as provided in paragraph (e) of Section 5-4.5-50

 

 

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1    (730 ILCS 5/5-4.5-50) for the most serious of the offenses
2    involved.
3        (3) The minimum period of imprisonment shall be the
4    aggregate of the minimum and determinate periods of
5    imprisonment imposed by the court, subject to subsection
6    (f) of this Section.
7        (4) The defendant shall be awarded credit against the
8    aggregate maximum term and the aggregate minimum term of
9    imprisonment for all time served in an institution since
10    the commission of the offense or offenses and as a
11    consequence thereof at the rate specified in Section 3-6-3
12    (730 ILCS 5/3-6-3).
13(Source: P.A. 95-379, eff. 8-23-07; 95-766, eff. 1-1-09;
1495-1052, eff. 7-1-09; 96-190, eff. 1-1-10; 96-1000, eff.
157-2-10; 96-1200, eff. 7-22-10.)
 
16    Section 99. Effective date. This Act takes effect upon
17becoming law.".