Full Text of SB2781 97th General Assembly
SB2781sam001 97TH GENERAL ASSEMBLY | Sen. Donne E. Trotter Filed: 4/24/2012
| | 09700SB2781sam001 | | LRB097 16183 JWD 68719 a |
|
| 1 | | AMENDMENT TO SENATE BILL 2781
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2781 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-702 as follows: | 6 | | (735 ILCS 5/2-702) | 7 | | Sec. 2-702. Petition for a certificate of innocence that | 8 | | the petitioner was innocent of all offenses for which he or she | 9 | | was incarcerated. | 10 | | (a) The General Assembly finds and declares that innocent | 11 | | persons who have been wrongly convicted of crimes in Illinois | 12 | | and subsequently imprisoned have been frustrated in seeking | 13 | | legal redress due to a variety of substantive and technical | 14 | | obstacles in the law and that such persons should have an | 15 | | available avenue to obtain a finding of innocence so that they | 16 | | may obtain relief through a petition in the Court of Claims. |
| | | 09700SB2781sam001 | - 2 - | LRB097 16183 JWD 68719 a |
|
| 1 | | The General Assembly further finds misleading the current legal | 2 | | nomenclature which compels an innocent person to seek a pardon | 3 | | for being wrongfully incarcerated. It is the intent of the | 4 | | General Assembly that the court, in exercising its discretion | 5 | | as permitted by law regarding the weight and admissibility of | 6 | | evidence submitted pursuant to this Section, shall, in the | 7 | | interest of justice, give due consideration to difficulties of | 8 | | proof caused by the passage of time, the death or | 9 | | unavailability of witnesses, the destruction of evidence or | 10 | | other factors not caused by such persons or those acting on | 11 | | their behalf. | 12 | | (b) Any person convicted and subsequently imprisoned for | 13 | | one or more felonies by the State of Illinois which he or she | 14 | | did not commit may, under the conditions hereinafter provided, | 15 | | file a petition for certificate of innocence in the circuit | 16 | | court of the county in which the person was convicted. The | 17 | | petition shall request a certificate of innocence finding that | 18 | | the petitioner was innocent of all offenses for which he or she | 19 | | was incarcerated. | 20 | | (b-5) The presumption of innocence is restored when: a | 21 | | conviction has been reversed or vacated, and the indictment or | 22 | | information has been dismissed; or a new trial has been ordered | 23 | | and the defendant has been found not guilty at the new trial or | 24 | | he or she has not been retried, and the indictment or | 25 | | information has been dismissed; or the statute, or the | 26 | | application thereof, upon which the indictment or information |
| | | 09700SB2781sam001 | - 3 - | LRB097 16183 JWD 68719 a |
|
| 1 | | was based has been found by a court to have violated the | 2 | | Constitution of the United States or the Constitution of the | 3 | | State of Illinois. | 4 | | (c) In order to present the claim for certificate of | 5 | | innocence of an unjust conviction and imprisonment, the | 6 | | petitioner must attach to his or her petition documentation | 7 | | demonstrating that: | 8 | | (1) he or she has been convicted of one or more | 9 | | felonies by the State of Illinois and subsequently | 10 | | sentenced to a term of imprisonment, and has served all or | 11 | | any part of the sentence; and | 12 | | (2) his or her judgment of conviction was reversed or | 13 | | vacated, and the indictment or information dismissed or, if | 14 | | a new trial was ordered, either he or she was found not | 15 | | guilty at the new trial or he or she was not retried and | 16 | | the indictment or information dismissed; or the statute, or | 17 | | application thereof, on which the indictment or | 18 | | information was based violated the Constitution of the | 19 | | United States or the State of Illinois; and | 20 | | (3) his or her claim is not time barred by the | 21 | | provisions of subsection (i) of this Section. | 22 | | (d) The petition shall state facts in sufficient detail to | 23 | | permit the court to find that the petitioner is likely to | 24 | | succeed at trial in proving that the petitioner is innocent of | 25 | | the offenses charged in the indictment or information or his or | 26 | | her acts or omissions charged in the indictment or information |
| | | 09700SB2781sam001 | - 4 - | LRB097 16183 JWD 68719 a |
|
| 1 | | did not constitute a felony or misdemeanor against the State of | 2 | | Illinois, and the petitioner did not by his or her own conduct | 3 | | voluntarily cause or bring about his or her conviction. The | 4 | | petition shall be verified by the petitioner. | 5 | | (e) A copy of the petition shall be served on the Attorney | 6 | | General and the State's Attorney of the county where the | 7 | | conviction was had. The Attorney General and the State's | 8 | | Attorney of the county where the conviction was had shall have | 9 | | the right to intervene as parties. | 10 | | (f) In any hearing seeking a certificate of innocence, the | 11 | | court may take judicial notice of prior sworn testimony or | 12 | | evidence admitted in the criminal proceedings related to the | 13 | | convictions which resulted in the alleged wrongful | 14 | | incarceration, if the petitioner was either represented by | 15 | | counsel at such prior proceedings or the right to counsel was | 16 | | knowingly waived. | 17 | | (g) In order to obtain a certificate of innocence the | 18 | | petitioner must prove by a preponderance of evidence that: | 19 | | (1) the petitioner was convicted of one or more | 20 | | felonies by the State of Illinois and subsequently | 21 | | sentenced to a term of imprisonment, and has served all or | 22 | | any part of the sentence; | 23 | | (2)(A) the judgment of conviction was reversed or | 24 | | vacated, and the indictment or information dismissed or, if | 25 | | a new trial was ordered, either the petitioner was found | 26 | | not guilty at the new trial or the petitioner was not |
| | | 09700SB2781sam001 | - 5 - | LRB097 16183 JWD 68719 a |
|
| 1 | | retried and the indictment or information dismissed; or (B) | 2 | | the statute, or application thereof, on which the | 3 | | indictment or information was based violated the | 4 | | Constitution of the United States or the State of Illinois; | 5 | | and | 6 | | (3) the petitioner is innocent of the offenses charged | 7 | | in the indictment or information or his or her acts or | 8 | | omissions charged in the indictment or information did not | 9 | | constitute a felony or misdemeanor against the State; and | 10 | | (3) (4) the petitioner did not by his or her own | 11 | | conduct
voluntarily cause or bring about his or her | 12 | | conviction. | 13 | | (h) If the court finds that the petitioner is entitled to a
| 14 | | judgment, it shall enter a certificate of innocence finding | 15 | | that
the petitioner was innocent of all offenses for which he | 16 | | or she was incarcerated. Upon entry of the certificate of | 17 | | innocence or pardon from the Governor stating that such pardon | 18 | | was issued on the ground of innocence of the crime for which he | 19 | | or she was imprisoned, (1) the clerk of the court shall | 20 | | transmit a copy of the certificate of innocence to the clerk of | 21 | | the Court of Claims, together with the claimant's current | 22 | | address; and (2) the court shall enter an order expunging or | 23 | | sealing the record of arrest from the
official records of the
| 24 | | arresting authority and order that the records of the clerk of | 25 | | the circuit
court and Department of
State Police be sealed | 26 | | until further order of the court upon good cause shown
or as |
| | | 09700SB2781sam001 | - 6 - | LRB097 16183 JWD 68719 a |
|
| 1 | | otherwise provided
herein, and the name of the defendant | 2 | | obliterated from the official index
requested to be kept by the
| 3 | | circuit court clerk under Section 16 of the Clerks of Courts | 4 | | Act in connection
with the arrest and
conviction for the | 5 | | offense but the order shall not affect any index issued by
the | 6 | | circuit court clerk before the entry of the order. | 7 | | (i) Any person seeking a certificate of innocence under | 8 | | this
Section based on the dismissal of an indictment or | 9 | | information
or acquittal that occurred before the effective | 10 | | date of this
amendatory Act of the 95th General Assembly shall | 11 | | file his or
her petition within 2 years after the effective | 12 | | date of this
amendatory Act of the 95th General Assembly. Any | 13 | | person seeking
a certificate of innocence under this Section | 14 | | based on the
dismissal of an indictment or information or | 15 | | acquittal that
occurred on or after the effective date of this | 16 | | amendatory Act
of the 95th General Assembly shall file his or | 17 | | her petition
within 2 years after the dismissal. | 18 | | (j) The decision to grant or deny a certificate of | 19 | | innocence shall be binding only with respect to claims filed in | 20 | | the Court of Claims and shall not have a res judicata effect on | 21 | | any other proceedings.
| 22 | | (Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11 .)
| 23 | | Section 99. Effective date. This Act takes effect upon | 24 | | becoming law.".
|
|