Full Text of HB5358 94th General Assembly
HB5358 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 HB5358
Introduced 01/26/06, by Rep. Annazette Collins SYNOPSIS AS INTRODUCED: |
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705 ILCS 405/5-710 |
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730 ILCS 5/5-5-3 |
from Ch. 38, par. 1005-5-3 |
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Amends the Juvenile Court Act of 1987 and the Unified Code of Corrections. Provides that if a person convicted of or adjudicated delinquent for an offense is under 21 years of age and has not received a high school diploma or a General Educational Development (GED) certificate, the court shall order that person to attend school or courses that lead to a high school diploma or the receipt of a General Educational Development (GED) certificate until the person has attained 21 years of age. This provision does not apply to a person who is determined by
the court to be developmentally disabled or otherwise mentally incapable of
completing the educational requirements.
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A BILL FOR
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HB5358 |
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LRB094 18183 RLC 53494 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Juvenile Court Act of 1987 is amended by | 5 |
| changing Section 5-710 as follows:
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| (705 ILCS 405/5-710)
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| Sec. 5-710. Kinds of sentencing orders.
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| (1) The following kinds of sentencing orders may be made in | 9 |
| respect of
wards of the court:
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| (a) Except as provided in Sections 5-805, 5-810, 5-815, | 11 |
| a minor who is
found
guilty under Section 5-620 may be:
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| (i) put on probation or conditional discharge and | 13 |
| released to his or her
parents, guardian or legal | 14 |
| custodian, provided, however, that any such minor
who | 15 |
| is not committed to the Department of Juvenile Justice | 16 |
| under
this subsection and who is found to be a | 17 |
| delinquent for an offense which is
first degree murder, | 18 |
| a Class X felony, or a forcible felony shall be placed | 19 |
| on
probation;
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| (ii) placed in accordance with Section 5-740, with | 21 |
| or without also being
put on probation or conditional | 22 |
| discharge;
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| (iii) required to undergo a substance abuse | 24 |
| assessment conducted by a
licensed provider and | 25 |
| participate in the indicated clinical level of care;
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| (iv) placed in the guardianship of the Department | 27 |
| of Children and Family
Services, but only if the | 28 |
| delinquent minor is under 13 years of age;
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| (v) placed in detention for a period not to exceed | 30 |
| 30 days, either as
the
exclusive order of disposition | 31 |
| or, where appropriate, in conjunction with any
other | 32 |
| order of disposition issued under this paragraph, |
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| provided that any such
detention shall be in a juvenile | 2 |
| detention home and the minor so detained shall
be 10 | 3 |
| years of age or older. However, the 30-day limitation | 4 |
| may be extended by
further order of the court for a | 5 |
| minor under age 13 committed to the Department
of | 6 |
| Children and Family Services if the court finds that | 7 |
| the minor is a danger
to himself or others. The minor | 8 |
| shall be given credit on the sentencing order
of | 9 |
| detention for time spent in detention under Sections | 10 |
| 5-501, 5-601, 5-710, or
5-720 of this
Article as a | 11 |
| result of the offense for which the sentencing order | 12 |
| was imposed.
The court may grant credit on a sentencing | 13 |
| order of detention entered under a
violation of | 14 |
| probation or violation of conditional discharge under | 15 |
| Section
5-720 of this Article for time spent in | 16 |
| detention before the filing of the
petition
alleging | 17 |
| the violation. A minor shall not be deprived of credit | 18 |
| for time spent
in detention before the filing of a | 19 |
| violation of probation or conditional
discharge | 20 |
| alleging the same or related act or acts;
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| (vi) ordered partially or completely emancipated | 22 |
| in accordance with the
provisions of the Emancipation | 23 |
| of Minors Act;
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| (vii) subject to having his or her driver's license | 25 |
| or driving
privileges
suspended for such time as | 26 |
| determined by the court but only until he or she
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| attains 18 years of age;
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| (viii) put on probation or conditional discharge | 29 |
| and placed in detention
under Section 3-6039 of the | 30 |
| Counties Code for a period not to exceed the period
of | 31 |
| incarceration permitted by law for adults found guilty | 32 |
| of the same offense
or offenses for which the minor was | 33 |
| adjudicated delinquent, and in any event no
longer than | 34 |
| upon attainment of age 21; this subdivision (viii) | 35 |
| notwithstanding
any contrary provision of the law; or
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| (ix) ordered to undergo a medical or other |
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| procedure to have a tattoo
symbolizing allegiance to a | 2 |
| street gang removed from his or her body.
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| (a-5) If the minor has not received a high school | 4 |
| diploma or a General Educational Development (GED) | 5 |
| certificate, the court shall order the minor to attend | 6 |
| school or courses that lead to a high school diploma or the | 7 |
| receipt of a General Educational Development (GED) | 8 |
| certificate until the minor has attained 21 years of age. | 9 |
| This subsection (a-5) does not apply to a minor who is | 10 |
| determined by
the court to be developmentally disabled or | 11 |
| otherwise mentally incapable of
completing the educational | 12 |
| requirements.
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| (b) A minor found to be guilty may be committed to the | 14 |
| Department of
Juvenile Justice under Section 5-750 if the | 15 |
| minor is 13 years of age or
older,
provided that the | 16 |
| commitment to the Department of Juvenile Justice shall be | 17 |
| made only if a term of incarceration is permitted by law | 18 |
| for
adults found guilty of the offense for which the minor | 19 |
| was adjudicated
delinquent. The time during which a minor | 20 |
| is in custody before being released
upon the request of a | 21 |
| parent, guardian or legal custodian shall be considered
as | 22 |
| time spent in detention.
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| (c) When a minor is found to be guilty for an offense | 24 |
| which is a violation
of the Illinois Controlled Substances | 25 |
| Act, the Cannabis Control Act, or the Methamphetamine | 26 |
| Control and Community Protection Act and made
a ward of the | 27 |
| court, the court may enter a disposition order requiring | 28 |
| the
minor to undergo assessment,
counseling or treatment in | 29 |
| a substance abuse program approved by the Department
of | 30 |
| Human Services.
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| (2) Any sentencing order other than commitment to the | 32 |
| Department of
Juvenile Justice may provide for protective | 33 |
| supervision under
Section 5-725 and may include an order of | 34 |
| protection under Section 5-730.
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| (3) Unless the sentencing order expressly so provides, it | 36 |
| does not operate
to close proceedings on the pending petition, |
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| but is subject to modification
until final closing and | 2 |
| discharge of the proceedings under Section 5-750.
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| (4) In addition to any other sentence, the court may order | 4 |
| any
minor
found to be delinquent to make restitution, in | 5 |
| monetary or non-monetary form,
under the terms and conditions | 6 |
| of Section 5-5-6 of the Unified Code of
Corrections, except | 7 |
| that the "presentencing hearing" referred to in that
Section
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| shall be
the sentencing hearing for purposes of this Section. | 9 |
| The parent, guardian or
legal custodian of the minor may be | 10 |
| ordered by the court to pay some or all of
the restitution on | 11 |
| the minor's behalf, pursuant to the Parental Responsibility
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| Law. The State's Attorney is authorized to act
on behalf of any | 13 |
| victim in seeking restitution in proceedings under this
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| Section, up to the maximum amount allowed in Section 5 of the | 15 |
| Parental
Responsibility Law.
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| (5) Any sentencing order where the minor is committed or | 17 |
| placed in
accordance
with Section 5-740 shall provide for the | 18 |
| parents or guardian of the estate of
the minor to pay to the | 19 |
| legal custodian or guardian of the person of the minor
such | 20 |
| sums as are determined by the custodian or guardian of the | 21 |
| person of the
minor as necessary for the minor's needs. The | 22 |
| payments may not exceed the
maximum amounts provided for by | 23 |
| Section 9.1 of the Children and Family Services
Act.
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| (6) Whenever the sentencing order requires the minor to | 25 |
| attend school or
participate in a program of training, the | 26 |
| truant officer or designated school
official shall regularly | 27 |
| report to the court if the minor is a chronic or
habitual | 28 |
| truant under Section 26-2a of the School Code.
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| (7) In no event shall a guilty minor be committed to the | 30 |
| Department of
Juvenile Justice for a period of time in
excess | 31 |
| of
that period for which an adult could be committed for the | 32 |
| same act.
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| (8) A minor found to be guilty for reasons that include a | 34 |
| violation of
Section 21-1.3 of the Criminal Code of 1961 shall | 35 |
| be ordered to perform
community service for not less than 30 | 36 |
| and not more than 120 hours, if
community service is available |
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| in the jurisdiction. The community service
shall include, but | 2 |
| need not be limited to, the cleanup and repair of the damage
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| that was caused by the violation or similar damage to property | 4 |
| located in the
municipality or county in which the violation | 5 |
| occurred. The order may be in
addition to any other order | 6 |
| authorized by this Section.
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| (8.5) A minor found to be guilty for reasons that include a | 8 |
| violation of
Section
3.02 or Section 3.03 of the Humane Care | 9 |
| for Animals Act or paragraph (d) of
subsection (1) of
Section | 10 |
| 21-1 of
the Criminal Code
of
1961 shall be ordered to undergo | 11 |
| medical or psychiatric treatment rendered by
a
psychiatrist or | 12 |
| psychological treatment rendered by a clinical psychologist.
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| The order
may be in addition to any other order authorized by | 14 |
| this Section.
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| (9) In addition to any other sentencing order, the court | 16 |
| shall order any
minor found
to be guilty for an act which would | 17 |
| constitute, predatory criminal sexual
assault of a child, | 18 |
| aggravated criminal sexual assault, criminal sexual
assault, | 19 |
| aggravated criminal sexual abuse, or criminal sexual abuse if
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| committed by an
adult to undergo medical testing to determine | 21 |
| whether the defendant has any
sexually transmissible disease | 22 |
| including a test for infection with human
immunodeficiency | 23 |
| virus (HIV) or any other identified causative agency of
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| acquired immunodeficiency syndrome (AIDS). Any medical test | 25 |
| shall be performed
only by appropriately licensed medical | 26 |
| practitioners and may include an
analysis of any bodily fluids | 27 |
| as well as an examination of the minor's person.
Except as | 28 |
| otherwise provided by law, the results of the test shall be | 29 |
| kept
strictly confidential by all medical personnel involved in | 30 |
| the testing and must
be personally delivered in a sealed | 31 |
| envelope to the judge of the court in which
the sentencing | 32 |
| order was entered for the judge's inspection in camera. Acting
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| in accordance with the best interests of the victim and the | 34 |
| public, the judge
shall have the discretion to determine to | 35 |
| whom the results of the testing may
be revealed. The court | 36 |
| shall notify the minor of the results of the test for
infection |
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| with the human immunodeficiency virus (HIV). The court shall | 2 |
| also
notify the victim if requested by the victim, and if the | 3 |
| victim is under the
age of 15 and if requested by the victim's | 4 |
| parents or legal guardian, the court
shall notify the victim's | 5 |
| parents or the legal guardian, of the results of the
test for | 6 |
| infection with the human immunodeficiency virus (HIV). The | 7 |
| court
shall provide information on the availability of HIV | 8 |
| testing and counseling at
the Department of Public Health | 9 |
| facilities to all parties to whom the
results of the testing | 10 |
| are revealed. The court shall order that the cost of
any test | 11 |
| shall be paid by the county and may be taxed as costs against | 12 |
| the
minor.
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| (10) When a court finds a minor to be guilty the court | 14 |
| shall, before
entering a sentencing order under this Section, | 15 |
| make a finding whether the
offense committed either: (a) was | 16 |
| related to or in furtherance of the criminal
activities of an | 17 |
| organized gang or was motivated by the minor's membership in
or | 18 |
| allegiance to an organized gang, or (b) involved a violation of
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| subsection (a) of Section 12-7.1 of the Criminal Code of 1961, | 20 |
| a violation of
any
Section of Article 24 of the Criminal Code | 21 |
| of 1961, or a violation of any
statute that involved the | 22 |
| wrongful use of a firearm. If the court determines
the question | 23 |
| in the affirmative,
and the court does not commit the minor to | 24 |
| the Department of Juvenile Justice, the court shall order the | 25 |
| minor to perform community service
for not less than 30 hours | 26 |
| nor more than 120 hours, provided that community
service is | 27 |
| available in the jurisdiction and is funded and approved by the
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| county board of the county where the offense was committed. The | 29 |
| community
service shall include, but need not be limited to, | 30 |
| the cleanup and repair of
any damage caused by a violation of | 31 |
| Section 21-1.3 of the Criminal Code of 1961
and similar damage | 32 |
| to property located in the municipality or county in which
the | 33 |
| violation occurred. When possible and reasonable, the | 34 |
| community service
shall be performed in the minor's | 35 |
| neighborhood. This order shall be in
addition to any other | 36 |
| order authorized by this Section
except for an order to place |
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LRB094 18183 RLC 53494 b |
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| the minor in the custody of the Department of
Juvenile Justice. | 2 |
| For the purposes of this Section, "organized
gang" has the | 3 |
| meaning ascribed to it in Section 10 of the Illinois Streetgang
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| Terrorism Omnibus Prevention Act.
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| (Source: P.A. 94-556, eff. 9-11-05; 94-696, eff. 6-1-06.)
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| Section 10. The Unified Code of Corrections is amended by | 7 |
| changing Section 5-5-3 as follows:
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| (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
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| Sec. 5-5-3. Disposition.
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| (a) Except as provided in Section 11-501 of the Illinois | 11 |
| Vehicle Code, every person convicted of an offense shall be | 12 |
| sentenced as provided
in this Section.
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| (b) The following options shall be appropriate | 14 |
| dispositions, alone
or in combination, for all felonies and | 15 |
| misdemeanors other than those
identified in subsection (c) of | 16 |
| this Section:
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| (1) A period of probation.
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| (2) A term of periodic imprisonment.
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| (3) A term of conditional discharge.
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| (4) A term of imprisonment.
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| (5) An order directing the offender to clean up and | 22 |
| repair the
damage, if the offender was convicted under | 23 |
| paragraph (h) of Section
21-1 of the Criminal Code of 1961 | 24 |
| (now repealed).
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| (6) A fine.
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| (7) An order directing the offender to make restitution | 27 |
| to the
victim under Section 5-5-6 of this Code.
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| (8) A sentence of participation in a county impact | 29 |
| incarceration
program under Section 5-8-1.2 of this Code. | 30 |
| (9) A term of imprisonment in combination with a term | 31 |
| of probation when the offender has been admitted into a | 32 |
| drug court program under Section 20 of the Drug Court | 33 |
| Treatment Act.
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| Neither a fine nor restitution shall be the sole |
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| disposition
for a felony and either or both may be imposed only | 2 |
| in conjunction with
another disposition.
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| (c) (1) When a defendant is found guilty of first degree | 4 |
| murder the
State may either seek a sentence of imprisonment | 5 |
| under Section 5-8-1 of
this Code, or where appropriate seek | 6 |
| a sentence of death under Section 9-1
of the Criminal Code | 7 |
| of 1961.
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| (2) A period of probation, a term of periodic | 9 |
| imprisonment or
conditional discharge shall not be imposed | 10 |
| for the following offenses.
The court shall sentence the | 11 |
| offender to not less than the minimum term
of imprisonment | 12 |
| set forth in this Code for the following offenses, and
may | 13 |
| order a fine or restitution or both in conjunction with | 14 |
| such term of
imprisonment:
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| (A) First degree murder where the death penalty is | 16 |
| not imposed.
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| (B) Attempted first degree murder.
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| (C) A Class X felony.
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| (D) A violation of Section 401.1 or 407 of the
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| Illinois Controlled Substances Act, or a violation of | 21 |
| subdivision (c)(1) or
(c)(2) of
Section 401 of that Act | 22 |
| which relates to more than 5 grams of a substance
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| containing heroin or cocaine or an analog thereof.
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| (E) A violation of Section 5.1 or 9 of the Cannabis | 25 |
| Control
Act.
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| (F) A Class 2 or greater felony if the offender had | 27 |
| been convicted
of a Class 2 or greater felony within 10 | 28 |
| years of the date on which the
offender
committed the | 29 |
| offense for which he or she is being sentenced, except | 30 |
| as
otherwise provided in Section 40-10 of the | 31 |
| Alcoholism and Other Drug Abuse and
Dependency Act.
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| (F-5) A violation of Section 24-1, 24-1.1, or | 33 |
| 24-1.6 of the Criminal Code of 1961 for which | 34 |
| imprisonment is prescribed in those Sections.
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| (G) Residential burglary, except as otherwise | 36 |
| provided in Section 40-10
of the Alcoholism and Other |
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LRB094 18183 RLC 53494 b |
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| Drug Abuse and Dependency Act.
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| (H) Criminal sexual assault.
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| (I) Aggravated battery of a senior citizen.
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| (J) A forcible felony if the offense was related to | 5 |
| the activities of an
organized gang.
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| Before July 1, 1994, for the purposes of this | 7 |
| paragraph, "organized
gang" means an association of 5 | 8 |
| or more persons, with an established hierarchy,
that | 9 |
| encourages members of the association to perpetrate | 10 |
| crimes or provides
support to the members of the | 11 |
| association who do commit crimes.
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| Beginning July 1, 1994, for the purposes of this | 13 |
| paragraph,
"organized gang" has the meaning ascribed | 14 |
| to it in Section 10 of the Illinois
Streetgang | 15 |
| Terrorism Omnibus Prevention Act.
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| (K) Vehicular hijacking.
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| (L) A second or subsequent conviction for the | 18 |
| offense of hate crime
when the underlying offense upon | 19 |
| which the hate crime is based is felony
aggravated
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| assault or felony mob action.
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| (M) A second or subsequent conviction for the | 22 |
| offense of institutional
vandalism if the damage to the | 23 |
| property exceeds $300.
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| (N) A Class 3 felony violation of paragraph (1) of | 25 |
| subsection (a) of
Section 2 of the Firearm Owners | 26 |
| Identification Card Act.
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| (O) A violation of Section 12-6.1 of the Criminal | 28 |
| Code of 1961.
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| (P) A violation of paragraph (1), (2), (3), (4), | 30 |
| (5), or (7) of
subsection (a)
of Section 11-20.1 of the | 31 |
| Criminal Code of 1961.
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| (Q) A violation of Section 20-1.2 or 20-1.3 of the | 33 |
| Criminal Code of
1961.
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| (R) A violation of Section 24-3A of the Criminal | 35 |
| Code of
1961.
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| (S) (Blank).
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LRB094 18183 RLC 53494 b |
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| (T) A second or subsequent violation of the | 2 |
| Methamphetamine Control and Community Protection Act.
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| (3) (Blank).
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| (4) A minimum term of imprisonment of not less than 10
| 5 |
| consecutive days or 30 days of community service shall be | 6 |
| imposed for a
violation of paragraph (c) of Section 6-303 | 7 |
| of the Illinois Vehicle Code.
| 8 |
| (4.1) (Blank).
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| (4.2) Except as provided in paragraph (4.3) of this | 10 |
| subsection (c), a
minimum of
100 hours of community service | 11 |
| shall be imposed for a second violation of
Section 6-303
of | 12 |
| the Illinois Vehicle Code.
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| (4.3) A minimum term of imprisonment of 30 days or 300 | 14 |
| hours of community
service, as determined by the court, | 15 |
| shall
be imposed for a second violation of subsection (c) | 16 |
| of Section 6-303 of the
Illinois Vehicle Code.
| 17 |
| (4.4) Except as provided in paragraph (4.5) and | 18 |
| paragraph (4.6) of this
subsection (c), a
minimum term of | 19 |
| imprisonment of 30 days or 300 hours of community service, | 20 |
| as
determined by the court, shall
be imposed
for a third or | 21 |
| subsequent violation of Section 6-303 of the Illinois | 22 |
| Vehicle
Code.
| 23 |
| (4.5) A minimum term of imprisonment of 30 days
shall | 24 |
| be imposed for a third violation of subsection (c) of
| 25 |
| Section 6-303 of the Illinois Vehicle Code.
| 26 |
| (4.6) A minimum term of imprisonment of 180 days shall | 27 |
| be imposed for a
fourth or subsequent violation of | 28 |
| subsection (c) of Section 6-303 of the
Illinois Vehicle | 29 |
| Code.
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| (5) The court may sentence an offender convicted of a | 31 |
| business
offense or a petty offense or a corporation or | 32 |
| unincorporated
association convicted of any offense to:
| 33 |
| (A) a period of conditional discharge;
| 34 |
| (B) a fine;
| 35 |
| (C) make restitution to the victim under Section | 36 |
| 5-5-6 of this Code.
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LRB094 18183 RLC 53494 b |
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| (5.1) In addition to any penalties imposed under | 2 |
| paragraph (5) of this
subsection (c), and except as | 3 |
| provided in paragraph (5.2) or (5.3), a person
convicted of | 4 |
| violating subsection (c) of Section 11-907 of the Illinois
| 5 |
| Vehicle Code shall have his or her driver's license, | 6 |
| permit, or privileges
suspended for at least 90 days but | 7 |
| not more than one year, if the violation
resulted in damage | 8 |
| to the property of another person.
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| (5.2) In addition to any penalties imposed under | 10 |
| paragraph (5) of this
subsection (c), and except as | 11 |
| provided in paragraph (5.3), a person convicted
of | 12 |
| violating subsection (c) of Section 11-907 of the Illinois | 13 |
| Vehicle Code
shall have his or her driver's license, | 14 |
| permit, or privileges suspended for at
least 180 days but | 15 |
| not more than 2 years, if the violation resulted in injury
| 16 |
| to
another person.
| 17 |
| (5.3) In addition to any penalties imposed under | 18 |
| paragraph (5) of
this
subsection (c), a person convicted of | 19 |
| violating subsection (c) of Section
11-907 of the Illinois | 20 |
| Vehicle Code shall have his or her driver's license,
| 21 |
| permit, or privileges suspended for 2 years, if the | 22 |
| violation resulted in the
death of another person.
| 23 |
| (6) In no case shall an offender be eligible for a | 24 |
| disposition of
probation or conditional discharge for a | 25 |
| Class 1 felony committed while
he was serving a term of | 26 |
| probation or conditional discharge for a felony.
| 27 |
| (7) When a defendant is adjudged a habitual criminal | 28 |
| under Article
33B of the Criminal Code of 1961, the court | 29 |
| shall sentence
the defendant to a term of natural life | 30 |
| imprisonment.
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| (8) When a defendant, over the age of 21 years, is | 32 |
| convicted of a
Class 1 or Class 2 felony, after having | 33 |
| twice been convicted
in any state or
federal court of an | 34 |
| offense that contains the same elements as an offense now
| 35 |
| classified in Illinois as a Class 2 or greater Class felony
| 36 |
| and such charges are
separately brought and tried and arise |
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HB5358 |
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| out of different series of acts,
such defendant shall be | 2 |
| sentenced as a Class X offender. This paragraph
shall not | 3 |
| apply unless (1) the first felony was committed after the
| 4 |
| effective date of this amendatory Act of 1977; and (2) the | 5 |
| second felony
was committed after conviction on the first; | 6 |
| and (3) the third felony
was committed after conviction on | 7 |
| the second.
A person sentenced as a Class X offender under | 8 |
| this paragraph is not
eligible to apply for treatment as a | 9 |
| condition of probation as provided by
Section 40-10 of the | 10 |
| Alcoholism and Other Drug Abuse and Dependency Act.
| 11 |
| (9) A defendant convicted of a second or subsequent | 12 |
| offense of ritualized
abuse of a child may be sentenced to | 13 |
| a term of natural life imprisonment.
| 14 |
| (10) (Blank).
| 15 |
| (11) The court shall impose a minimum fine of $1,000 | 16 |
| for a first offense
and $2,000 for a second or subsequent | 17 |
| offense upon a person convicted of or
placed on supervision | 18 |
| for battery when the individual harmed was a sports
| 19 |
| official or coach at any level of competition and the act | 20 |
| causing harm to the
sports
official or coach occurred | 21 |
| within an athletic facility or within the immediate | 22 |
| vicinity
of the athletic facility at which the sports | 23 |
| official or coach was an active
participant
of the athletic | 24 |
| contest held at the athletic facility. For the purposes of
| 25 |
| this paragraph (11), "sports official" means a person at an | 26 |
| athletic contest
who enforces the rules of the contest, | 27 |
| such as an umpire or referee; "athletic facility" means an | 28 |
| indoor or outdoor playing field or recreational area where | 29 |
| sports activities are conducted;
and "coach" means a person | 30 |
| recognized as a coach by the sanctioning
authority that | 31 |
| conducted the sporting event. | 32 |
| (12) A person may not receive a disposition of court | 33 |
| supervision for a
violation of Section 5-16 of the Boat | 34 |
| Registration and Safety Act if that
person has previously | 35 |
| received a disposition of court supervision for a
violation | 36 |
| of that Section.
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
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| 1 |
| (d) In any case in which a sentence originally imposed is | 2 |
| vacated,
the case shall be remanded to the trial court. The | 3 |
| trial court shall
hold a hearing under Section 5-4-1 of the | 4 |
| Unified Code of Corrections
which may include evidence of the | 5 |
| defendant's life, moral character and
occupation during the | 6 |
| time since the original sentence was passed. The
trial court | 7 |
| shall then impose sentence upon the defendant. The trial
court | 8 |
| may impose any sentence which could have been imposed at the
| 9 |
| original trial subject to Section 5-5-4 of the Unified Code of | 10 |
| Corrections.
If a sentence is vacated on appeal or on | 11 |
| collateral attack due to the
failure of the trier of fact at | 12 |
| trial to determine beyond a reasonable doubt
the
existence of a | 13 |
| fact (other than a prior conviction) necessary to increase the
| 14 |
| punishment for the offense beyond the statutory maximum | 15 |
| otherwise applicable,
either the defendant may be re-sentenced | 16 |
| to a term within the range otherwise
provided or, if the State | 17 |
| files notice of its intention to again seek the
extended | 18 |
| sentence, the defendant shall be afforded a new trial.
| 19 |
| (e) In cases where prosecution for
aggravated criminal | 20 |
| sexual abuse under Section 12-16 of the
Criminal Code of 1961 | 21 |
| results in conviction of a defendant
who was a family member of | 22 |
| the victim at the time of the commission of the
offense, the | 23 |
| court shall consider the safety and welfare of the victim and
| 24 |
| may impose a sentence of probation only where:
| 25 |
| (1) the court finds (A) or (B) or both are appropriate:
| 26 |
| (A) the defendant is willing to undergo a court | 27 |
| approved counseling
program for a minimum duration of 2 | 28 |
| years; or
| 29 |
| (B) the defendant is willing to participate in a | 30 |
| court approved plan
including but not limited to the | 31 |
| defendant's:
| 32 |
| (i) removal from the household;
| 33 |
| (ii) restricted contact with the victim;
| 34 |
| (iii) continued financial support of the | 35 |
| family;
| 36 |
| (iv) restitution for harm done to the victim; |
|
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
|
| 1 |
| and
| 2 |
| (v) compliance with any other measures that | 3 |
| the court may
deem appropriate; and
| 4 |
| (2) the court orders the defendant to pay for the | 5 |
| victim's counseling
services, to the extent that the court | 6 |
| finds, after considering the
defendant's income and | 7 |
| assets, that the defendant is financially capable of
paying | 8 |
| for such services, if the victim was under 18 years of age | 9 |
| at the
time the offense was committed and requires | 10 |
| counseling as a result of the
offense.
| 11 |
| Probation may be revoked or modified pursuant to Section | 12 |
| 5-6-4; except
where the court determines at the hearing that | 13 |
| the defendant violated a
condition of his or her probation | 14 |
| restricting contact with the victim or
other family members or | 15 |
| commits another offense with the victim or other
family | 16 |
| members, the court shall revoke the defendant's probation and
| 17 |
| impose a term of imprisonment.
| 18 |
| For the purposes of this Section, "family member" and | 19 |
| "victim" shall have
the meanings ascribed to them in Section | 20 |
| 12-12 of the Criminal Code of
1961.
| 21 |
| (f) This Article shall not deprive a court in other | 22 |
| proceedings to
order a forfeiture of property, to suspend or | 23 |
| cancel a license, to
remove a person from office, or to impose | 24 |
| any other civil penalty.
| 25 |
| (g) Whenever a defendant is convicted of an offense under | 26 |
| Sections
11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 11-18.1, | 27 |
| 11-19, 11-19.1, 11-19.2,
12-13, 12-14, 12-14.1, 12-15 or 12-16 | 28 |
| of the Criminal Code of 1961,
the defendant shall undergo | 29 |
| medical testing to
determine whether the defendant has any | 30 |
| sexually transmissible disease,
including a test for infection | 31 |
| with human immunodeficiency virus (HIV) or
any other identified | 32 |
| causative agent of acquired immunodeficiency syndrome
(AIDS). | 33 |
| Any such medical test shall be performed only by appropriately
| 34 |
| licensed medical practitioners and may include an analysis of | 35 |
| any bodily
fluids as well as an examination of the defendant's | 36 |
| person.
Except as otherwise provided by law, the results of |
|
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
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| 1 |
| such test shall be kept
strictly confidential by all medical | 2 |
| personnel involved in the testing and must
be personally | 3 |
| delivered in a sealed envelope to the judge of the court in | 4 |
| which
the conviction was entered for the judge's inspection in | 5 |
| camera. Acting in
accordance with the best interests of the | 6 |
| victim and the public, the judge
shall have the discretion to | 7 |
| determine to whom, if anyone, the results of the
testing may be | 8 |
| revealed. The court shall notify the defendant
of the test | 9 |
| results. The court shall
also notify the victim if requested by | 10 |
| the victim, and if the victim is under
the age of 15 and if | 11 |
| requested by the victim's parents or legal guardian, the
court | 12 |
| shall notify the victim's parents or legal guardian of the test
| 13 |
| results.
The court shall provide information on the | 14 |
| availability of HIV testing
and counseling at Department of | 15 |
| Public Health facilities to all parties to
whom the results of | 16 |
| the testing are revealed and shall direct the State's
Attorney | 17 |
| to provide the information to the victim when possible.
A | 18 |
| State's Attorney may petition the court to obtain the results | 19 |
| of any HIV test
administered under this Section, and the court | 20 |
| shall grant the disclosure if
the State's Attorney shows it is | 21 |
| relevant in order to prosecute a charge of
criminal | 22 |
| transmission of HIV under Section 12-16.2 of the Criminal Code | 23 |
| of 1961
against the defendant. The court shall order that the | 24 |
| cost of any such test
shall be paid by the county and may be | 25 |
| taxed as costs against the convicted
defendant.
| 26 |
| (g-5) When an inmate is tested for an airborne communicable | 27 |
| disease, as
determined by the Illinois Department of Public | 28 |
| Health including but not
limited to tuberculosis, the results | 29 |
| of the test shall be
personally delivered by the warden or his | 30 |
| or her designee in a sealed envelope
to the judge of the court | 31 |
| in which the inmate must appear for the judge's
inspection in | 32 |
| camera if requested by the judge. Acting in accordance with the
| 33 |
| best interests of those in the courtroom, the judge shall have | 34 |
| the discretion
to determine what if any precautions need to be | 35 |
| taken to prevent transmission
of the disease in the courtroom.
| 36 |
| (h) Whenever a defendant is convicted of an offense under |
|
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
|
| 1 |
| Section 1 or 2
of the Hypodermic Syringes and Needles Act, the | 2 |
| defendant shall undergo
medical testing to determine whether | 3 |
| the defendant has been exposed to human
immunodeficiency virus | 4 |
| (HIV) or any other identified causative agent of
acquired | 5 |
| immunodeficiency syndrome (AIDS). Except as otherwise provided | 6 |
| by
law, the results of such test shall be kept strictly | 7 |
| confidential by all
medical personnel involved in the testing | 8 |
| and must be personally delivered in a
sealed envelope to the | 9 |
| judge of the court in which the conviction was entered
for the | 10 |
| judge's inspection in camera. Acting in accordance with the | 11 |
| best
interests of the public, the judge shall have the | 12 |
| discretion to determine to
whom, if anyone, the results of the | 13 |
| testing may be revealed. The court shall
notify the defendant | 14 |
| of a positive test showing an infection with the human
| 15 |
| immunodeficiency virus (HIV). The court shall provide | 16 |
| information on the
availability of HIV testing and counseling | 17 |
| at Department of Public Health
facilities to all parties to | 18 |
| whom the results of the testing are revealed and
shall direct | 19 |
| the State's Attorney to provide the information to the victim | 20 |
| when
possible. A State's Attorney may petition the court to | 21 |
| obtain the results of
any HIV test administered under this | 22 |
| Section, and the court shall grant the
disclosure if the | 23 |
| State's Attorney shows it is relevant in order to prosecute a
| 24 |
| charge of criminal transmission of HIV under Section 12-16.2 of | 25 |
| the Criminal
Code of 1961 against the defendant. The court | 26 |
| shall order that the cost of any
such test shall be paid by the | 27 |
| county and may be taxed as costs against the
convicted | 28 |
| defendant.
| 29 |
| (i) All fines and penalties imposed under this Section for | 30 |
| any violation
of Chapters 3, 4, 6, and 11 of the Illinois | 31 |
| Vehicle Code, or a similar
provision of a local ordinance, and | 32 |
| any violation
of the Child Passenger Protection Act, or a | 33 |
| similar provision of a local
ordinance, shall be collected and | 34 |
| disbursed by the circuit
clerk as provided under Section 27.5 | 35 |
| of the Clerks of Courts Act.
| 36 |
| (j) In cases when prosecution for any violation of Section |
|
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
|
| 1 |
| 11-6, 11-8,
11-9, 11-11, 11-14, 11-15, 11-15.1, 11-16, 11-17, | 2 |
| 11-17.1, 11-18, 11-18.1,
11-19, 11-19.1, 11-19.2, 11-20.1, | 3 |
| 11-21, 12-13, 12-14, 12-14.1, 12-15, or
12-16 of the
Criminal | 4 |
| Code of 1961, any violation of the Illinois Controlled | 5 |
| Substances Act,
any violation of the Cannabis Control Act, or | 6 |
| any violation of the Methamphetamine Control and Community | 7 |
| Protection Act results in conviction, a
disposition of court | 8 |
| supervision, or an order of probation granted under
Section 10 | 9 |
| of the Cannabis Control Act, Section 410 of the Illinois
| 10 |
| Controlled Substance Act, or Section 70 of the Methamphetamine | 11 |
| Control and Community Protection Act of a defendant, the court | 12 |
| shall determine whether the
defendant is employed by a facility | 13 |
| or center as defined under the Child Care
Act of 1969, a public | 14 |
| or private elementary or secondary school, or otherwise
works | 15 |
| with children under 18 years of age on a daily basis. When a | 16 |
| defendant
is so employed, the court shall order the Clerk of | 17 |
| the Court to send a copy of
the judgment of conviction or order | 18 |
| of supervision or probation to the
defendant's employer by | 19 |
| certified mail.
If the employer of the defendant is a school, | 20 |
| the Clerk of the Court shall
direct the mailing of a copy of | 21 |
| the judgment of conviction or order of
supervision or probation | 22 |
| to the appropriate regional superintendent of schools.
The | 23 |
| regional superintendent of schools shall notify the State Board | 24 |
| of
Education of any notification under this subsection.
| 25 |
| (j-5) A defendant at least 21
17 years of age who is | 26 |
| convicted of a felony and
who has not been previously convicted | 27 |
| of a misdemeanor or felony and who is
sentenced to a term of | 28 |
| imprisonment in the Illinois Department of Corrections
shall as | 29 |
| a condition of his or her sentence be required by the court to | 30 |
| attend
educational courses designed to prepare the defendant | 31 |
| for a high school diploma
and to work toward a high school | 32 |
| diploma or to work toward passing the high
school level Test of | 33 |
| General Educational Development (GED) or to work toward
| 34 |
| completing a vocational training program offered by the | 35 |
| Department of
Corrections. A defendant under 21 years of age | 36 |
| shall as a condition of his or her sentence be required by the |
|
|
|
HB5358 |
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LRB094 18183 RLC 53494 b |
|
| 1 |
| court to attend
educational courses designed to prepare the | 2 |
| defendant for a high school diploma
and to work toward a high | 3 |
| school diploma or to work toward passing the high
school level | 4 |
| Test of General Educational Development (GED). If a defendant | 5 |
| fails to complete the educational training
required by his or | 6 |
| her sentence during the term of incarceration, the Prisoner
| 7 |
| Review Board shall, as a condition of mandatory supervised | 8 |
| release, require the
defendant, at his or her own expense, to | 9 |
| pursue a course of study toward a high
school diploma or | 10 |
| passage of the GED test. The Prisoner Review Board shall
revoke | 11 |
| the mandatory supervised release of a defendant who wilfully | 12 |
| fails to
comply with this subsection (j-5) upon his or her | 13 |
| release from confinement in a
penal institution while serving a | 14 |
| mandatory supervised release term; however,
the inability of | 15 |
| the defendant after making a good faith effort to obtain
| 16 |
| financial aid or pay for the educational training shall not be | 17 |
| deemed a wilful
failure to comply. The Prisoner Review Board | 18 |
| shall recommit the defendant
whose mandatory supervised | 19 |
| release term has been revoked under this subsection
(j-5) as | 20 |
| provided in Section 3-3-9. This subsection (j-5) does not apply | 21 |
| to a
defendant who has a high school diploma or has | 22 |
| successfully passed the GED
test. This subsection (j-5) does | 23 |
| not apply to a defendant who is determined by
the court to be | 24 |
| developmentally disabled or otherwise mentally incapable of
| 25 |
| completing the educational or vocational program.
| 26 |
| (k) A court may not impose a sentence or disposition for a
| 27 |
| felony or misdemeanor that requires the defendant to be | 28 |
| implanted or injected
with or to use any form of birth control.
| 29 |
| (l) (A) Except as provided
in paragraph (C) of subsection | 30 |
| (l), whenever a defendant,
who is an alien as defined by | 31 |
| the Immigration and Nationality Act, is convicted
of any | 32 |
| felony or misdemeanor offense, the court after sentencing | 33 |
| the defendant
may, upon motion of the State's Attorney, | 34 |
| hold sentence in abeyance and remand
the defendant to the | 35 |
| custody of the Attorney General of
the United States or his | 36 |
| or her designated agent to be deported when:
|
|
|
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HB5358 |
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LRB094 18183 RLC 53494 b |
|
| 1 |
| (1) a final order of deportation has been issued | 2 |
| against the defendant
pursuant to proceedings under | 3 |
| the Immigration and Nationality Act, and
| 4 |
| (2) the deportation of the defendant would not | 5 |
| deprecate the seriousness
of the defendant's conduct | 6 |
| and would not be inconsistent with the ends of
justice.
| 7 |
| Otherwise, the defendant shall be sentenced as | 8 |
| provided in this Chapter V.
| 9 |
| (B) If the defendant has already been sentenced for a | 10 |
| felony or
misdemeanor
offense, or has been placed on | 11 |
| probation under Section 10 of the Cannabis
Control Act,
| 12 |
| Section 410 of the Illinois Controlled Substances Act, or | 13 |
| Section 70 of the Methamphetamine Control and Community | 14 |
| Protection Act, the court
may, upon motion of the State's | 15 |
| Attorney to suspend the
sentence imposed, commit the | 16 |
| defendant to the custody of the Attorney General
of the | 17 |
| United States or his or her designated agent when:
| 18 |
| (1) a final order of deportation has been issued | 19 |
| against the defendant
pursuant to proceedings under | 20 |
| the Immigration and Nationality Act, and
| 21 |
| (2) the deportation of the defendant would not | 22 |
| deprecate the seriousness
of the defendant's conduct | 23 |
| and would not be inconsistent with the ends of
justice.
| 24 |
| (C) This subsection (l) does not apply to offenders who | 25 |
| are subject to the
provisions of paragraph (2) of | 26 |
| subsection (a) of Section 3-6-3.
| 27 |
| (D) Upon motion of the State's Attorney, if a defendant | 28 |
| sentenced under
this Section returns to the jurisdiction of | 29 |
| the United States, the defendant
shall be recommitted to | 30 |
| the custody of the county from which he or she was
| 31 |
| sentenced.
Thereafter, the defendant shall be brought | 32 |
| before the sentencing court, which
may impose any sentence | 33 |
| that was available under Section 5-5-3 at the time of
| 34 |
| initial sentencing. In addition, the defendant shall not be | 35 |
| eligible for
additional good conduct credit for | 36 |
| meritorious service as provided under
Section 3-6-6.
|
|
|
|
HB5358 |
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LRB094 18183 RLC 53494 b |
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| 1 |
| (m) A person convicted of criminal defacement of property | 2 |
| under Section
21-1.3 of the Criminal Code of 1961, in which the | 3 |
| property damage exceeds $300
and the property damaged is a | 4 |
| school building, shall be ordered to perform
community service | 5 |
| that may include cleanup, removal, or painting over the
| 6 |
| defacement.
| 7 |
| (n) The court may sentence a person convicted of a | 8 |
| violation of Section
12-19, 12-21, or 16-1.3 of the Criminal | 9 |
| Code of 1961 (i) to an impact
incarceration program if the | 10 |
| person is otherwise eligible for that program
under Section | 11 |
| 5-8-1.1, (ii) to community service, or (iii) if the person is | 12 |
| an
addict or alcoholic, as defined in the Alcoholism and Other | 13 |
| Drug Abuse and
Dependency Act, to a substance or alcohol abuse | 14 |
| program licensed under that
Act.
| 15 |
| (Source: P.A. 93-44, eff. 7-1-03; 93-156, eff. 1-1-04; 93-169, | 16 |
| eff. 7-10-03; 93-301, eff. 1-1-04; 93-419, eff. 1-1-04; 93-546, | 17 |
| eff. 1-1-04; 93-694, eff. 7-9-04; 93-782, eff. 1-1-05; 93-800, | 18 |
| eff. 1-1-05; 93-1014, eff. 1-1-05; 94-72, eff. 1-1-06; 94-556, | 19 |
| eff. 9-11-05; revised 8-19-05.)
|
|