Full Text of HB0821 98th General Assembly
HB0821sam001 98TH GENERAL ASSEMBLY | Sen. Kwame Raoul Filed: 5/20/2013
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| 1 | | AMENDMENT TO HOUSE BILL 821
| 2 | | AMENDMENT NO. ______. Amend House Bill 821 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Criminal Identification Act is amended by | 5 | | changing Section 5.2 as follows:
| 6 | | (20 ILCS 2630/5.2)
| 7 | | Sec. 5.2. Expungement and sealing. | 8 | | (a) General Provisions. | 9 | | (1) Definitions. In this Act, words and phrases have
| 10 | | the meanings set forth in this subsection, except when a
| 11 | | particular context clearly requires a different meaning. | 12 | | (A) The following terms shall have the meanings | 13 | | ascribed to them in the Unified Code of Corrections, | 14 | | 730 ILCS 5/5-1-2 through 5/5-1-22: | 15 | | (i) Business Offense (730 ILCS 5/5-1-2), | 16 | | (ii) Charge (730 ILCS 5/5-1-3), |
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| 1 | | (iii) Court (730 ILCS 5/5-1-6), | 2 | | (iv) Defendant (730 ILCS 5/5-1-7), | 3 | | (v) Felony (730 ILCS 5/5-1-9), | 4 | | (vi) Imprisonment (730 ILCS 5/5-1-10), | 5 | | (vii) Judgment (730 ILCS 5/5-1-12), | 6 | | (viii) Misdemeanor (730 ILCS 5/5-1-14), | 7 | | (ix) Offense (730 ILCS 5/5-1-15), | 8 | | (x) Parole (730 ILCS 5/5-1-16), | 9 | | (xi) Petty Offense (730 ILCS 5/5-1-17), | 10 | | (xii) Probation (730 ILCS 5/5-1-18), | 11 | | (xiii) Sentence (730 ILCS 5/5-1-19), | 12 | | (xiv) Supervision (730 ILCS 5/5-1-21), and | 13 | | (xv) Victim (730 ILCS 5/5-1-22). | 14 | | (B) As used in this Section, "charge not initiated | 15 | | by arrest" means a charge (as defined by 730 ILCS | 16 | | 5/5-1-3) brought against a defendant where the | 17 | | defendant is not arrested prior to or as a direct | 18 | | result of the charge. | 19 | | (C) "Conviction" means a judgment of conviction or | 20 | | sentence entered upon a plea of guilty or upon a | 21 | | verdict or finding of guilty of an offense, rendered by | 22 | | a legally constituted jury or by a court of competent | 23 | | jurisdiction authorized to try the case without a jury. | 24 | | An order of supervision successfully completed by the | 25 | | petitioner is not a conviction. An order of qualified | 26 | | probation (as defined in subsection (a)(1)(J)) |
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| 1 | | successfully completed by the petitioner is not a | 2 | | conviction. An order of supervision or an order of | 3 | | qualified probation that is terminated | 4 | | unsatisfactorily is a conviction, unless the | 5 | | unsatisfactory termination is reversed, vacated, or | 6 | | modified and the judgment of conviction, if any, is | 7 | | reversed or vacated. | 8 | | (D) "Criminal offense" means a petty offense, | 9 | | business offense, misdemeanor, felony, or municipal | 10 | | ordinance violation (as defined in subsection | 11 | | (a)(1)(H)). As used in this Section, a minor traffic | 12 | | offense (as defined in subsection (a)(1)(G)) shall not | 13 | | be considered a criminal offense. | 14 | | (E) "Expunge" means to physically destroy the | 15 | | records or return them to the petitioner and to | 16 | | obliterate the petitioner's name from any official | 17 | | index or public record, or both. Nothing in this Act | 18 | | shall require the physical destruction of the circuit | 19 | | court file, but such records relating to arrests or | 20 | | charges, or both, ordered expunged shall be impounded | 21 | | as required by subsections (d)(9)(A)(ii) and | 22 | | (d)(9)(B)(ii). | 23 | | (F) As used in this Section, "last sentence" means | 24 | | the sentence, order of supervision, or order of | 25 | | qualified probation (as defined by subsection | 26 | | (a)(1)(J)), for a criminal offense (as defined by |
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| 1 | | subsection (a)(1)(D)) that terminates last in time in | 2 | | any jurisdiction, regardless of whether the petitioner | 3 | | has included the criminal offense for which the | 4 | | sentence or order of supervision or qualified | 5 | | probation was imposed in his or her petition. If | 6 | | multiple sentences, orders of supervision, or orders | 7 | | of qualified probation terminate on the same day and | 8 | | are last in time, they shall be collectively considered | 9 | | the "last sentence" regardless of whether they were | 10 | | ordered to run concurrently. | 11 | | (G) "Minor traffic offense" means a petty offense, | 12 | | business offense, or Class C misdemeanor under the | 13 | | Illinois Vehicle Code or a similar provision of a | 14 | | municipal or local ordinance. | 15 | | (H) "Municipal ordinance violation" means an | 16 | | offense defined by a municipal or local ordinance that | 17 | | is criminal in nature and with which the petitioner was | 18 | | charged or for which the petitioner was arrested and | 19 | | released without charging. | 20 | | (I) "Petitioner" means an adult or a minor | 21 | | prosecuted as an
adult who has applied for relief under | 22 | | this Section. | 23 | | (J) "Qualified probation" means an order of | 24 | | probation under Section 10 of the Cannabis Control Act, | 25 | | Section 410 of the Illinois Controlled Substances Act, | 26 | | Section 70 of the Methamphetamine Control and |
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| 1 | | Community Protection Act, Section 5-6-3.3 of the | 2 | | Unified Code of Corrections, Section 12-4.3(b)(1) and | 3 | | (2) of the Criminal Code of 1961 (as those provisions | 4 | | existed before their deletion by Public Act 89-313), | 5 | | Section 10-102 of the Illinois Alcoholism and Other | 6 | | Drug Dependency Act, Section 40-10 of the Alcoholism | 7 | | and Other Drug Abuse and Dependency Act, or Section 10 | 8 | | of the Steroid Control Act. For the purpose of this | 9 | | Section, "successful completion" of an order of | 10 | | qualified probation under Section 10-102 of the | 11 | | Illinois Alcoholism and Other Drug Dependency Act and | 12 | | Section 40-10 of the Alcoholism and Other Drug Abuse | 13 | | and Dependency Act means that the probation was | 14 | | terminated satisfactorily and the judgment of | 15 | | conviction was vacated. | 16 | | (K) "Seal" means to physically and electronically | 17 | | maintain the records, unless the records would | 18 | | otherwise be destroyed due to age, but to make the | 19 | | records unavailable without a court order, subject to | 20 | | the exceptions in Sections 12 and 13 of this Act. The | 21 | | petitioner's name shall also be obliterated from the | 22 | | official index required to be kept by the circuit court | 23 | | clerk under Section 16 of the Clerks of Courts Act, but | 24 | | any index issued by the circuit court clerk before the | 25 | | entry of the order to seal shall not be affected. | 26 | | (L) "Sexual offense committed against a minor" |
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| 1 | | includes but is
not limited to the offenses of indecent | 2 | | solicitation of a child
or criminal sexual abuse when | 3 | | the victim of such offense is
under 18 years of age. | 4 | | (M) "Terminate" as it relates to a sentence or | 5 | | order of supervision or qualified probation includes | 6 | | either satisfactory or unsatisfactory termination of | 7 | | the sentence, unless otherwise specified in this | 8 | | Section. | 9 | | (2) Minor Traffic Offenses.
Orders of supervision or | 10 | | convictions for minor traffic offenses shall not affect a | 11 | | petitioner's eligibility to expunge or seal records | 12 | | pursuant to this Section. | 13 | | (3) Exclusions. Except as otherwise provided in | 14 | | subsections (b)(5), (b)(6), (b)(8), (e), and (e-5) of this | 15 | | Section, the court shall not order: | 16 | | (A) the sealing or expungement of the records of | 17 | | arrests or charges not initiated by arrest that result | 18 | | in an order of supervision for or conviction of:
(i) | 19 | | any sexual offense committed against a
minor; (ii) | 20 | | Section 11-501 of the Illinois Vehicle Code or a | 21 | | similar provision of a local ordinance; or (iii) | 22 | | Section 11-503 of the Illinois Vehicle Code or a | 23 | | similar provision of a local ordinance, unless the | 24 | | arrest or charge is for a misdemeanor violation of | 25 | | subsection (a) of Section 11-503 or a similar provision | 26 | | of a local ordinance, that occurred prior to the |
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| 1 | | offender reaching the age of 25 years and the offender | 2 | | has no other conviction for violating Section 11-501 or | 3 | | 11-503 of the Illinois Vehicle Code or a similar | 4 | | provision of a local ordinance. | 5 | | (B) the sealing or expungement of records of minor | 6 | | traffic offenses (as defined in subsection (a)(1)(G)), | 7 | | unless the petitioner was arrested and released | 8 | | without charging. | 9 | | (C) the sealing of the records of arrests or | 10 | | charges not initiated by arrest which result in an | 11 | | order of supervision, an order of qualified probation | 12 | | (as defined in subsection (a)(1)(J)), or a conviction | 13 | | for the following offenses: | 14 | | (i) offenses included in Article 11 of the | 15 | | Criminal Code of 1961 or the Criminal Code of 2012 | 16 | | or a similar provision of a local ordinance, except | 17 | | Section 11-14 of the Criminal Code of 1961 or the | 18 | | Criminal Code of 2012, or a similar provision of a | 19 | | local ordinance; | 20 | | (ii) Section 11-1.50, 12-3.4, 12-15, 12-30, | 21 | | 26-5, or 48-1 of the Criminal Code of 1961 or the | 22 | | Criminal Code of 2012, or a similar provision of a | 23 | | local ordinance; | 24 | | (iii) offenses defined as "crimes of violence" | 25 | | in Section 2 of the Crime Victims Compensation Act | 26 | | or a similar provision of a local ordinance; |
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| 1 | | (iv) offenses which are Class A misdemeanors | 2 | | under the Humane Care for Animals Act; or | 3 | | (v) any offense or attempted offense that | 4 | | would subject a person to registration under the | 5 | | Sex Offender Registration Act. | 6 | | (D) the sealing of the records of an arrest which | 7 | | results in
the petitioner being charged with a felony | 8 | | offense or records of a charge not initiated by arrest | 9 | | for a felony offense unless: | 10 | | (i) the charge is amended to a misdemeanor and | 11 | | is otherwise
eligible to be sealed pursuant to | 12 | | subsection (c); | 13 | | (ii) the charge is brought along with another | 14 | | charge as a part of one case and the charge results | 15 | | in acquittal, dismissal, or conviction when the | 16 | | conviction was reversed or vacated, and another | 17 | | charge brought in the same case results in a | 18 | | disposition for a misdemeanor offense that is | 19 | | eligible to be sealed pursuant to subsection (c) or | 20 | | a disposition listed in paragraph (i), (iii), or | 21 | | (iv) of this subsection; | 22 | | (iii) the charge results in first offender | 23 | | probation as set forth in subsection (c)(2)(E); | 24 | | (iv) the charge is for a Class 4 felony offense | 25 | | listed in subsection (c)(2)(F) or the charge is | 26 | | amended to a Class 4 felony offense listed in |
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| 1 | | subsection (c)(2)(F). Records of arrests which | 2 | | result in the petitioner being charged with a Class | 3 | | 4 felony offense listed in subsection (c)(2)(F), | 4 | | records of charges not initiated by arrest for | 5 | | Class 4 felony offenses listed in subsection | 6 | | (c)(2)(F), and records of charges amended to a | 7 | | Class 4 felony offense listed in (c)(2)(F) may be | 8 | | sealed, regardless of the disposition, subject to | 9 | | any waiting periods set forth in subsection | 10 | | (c)(3); | 11 | | (v) the charge results in acquittal, | 12 | | dismissal, or the petitioner's release without | 13 | | conviction; or | 14 | | (vi) the charge results in a conviction, but | 15 | | the conviction was reversed or vacated. | 16 | | (b) Expungement. | 17 | | (1) A petitioner may petition the circuit court to | 18 | | expunge the
records of his or her arrests and charges not | 19 | | initiated by arrest when: | 20 | | (A) He or she has never been convicted of a | 21 | | criminal offense; and | 22 | | (B) Each arrest or charge not initiated by arrest
| 23 | | sought to be expunged resulted in:
(i) acquittal, | 24 | | dismissal, or the petitioner's release without | 25 | | charging, unless excluded by subsection (a)(3)(B);
| 26 | | (ii) a conviction which was vacated or reversed, unless |
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| 1 | | excluded by subsection (a)(3)(B);
(iii) an order of | 2 | | supervision and such supervision was successfully | 3 | | completed by the petitioner, unless excluded by | 4 | | subsection (a)(3)(A) or (a)(3)(B); or
(iv) an order of | 5 | | qualified probation (as defined in subsection | 6 | | (a)(1)(J)) and such probation was successfully | 7 | | completed by the petitioner. | 8 | | (2) Time frame for filing a petition to expunge. | 9 | | (A) When the arrest or charge not initiated by | 10 | | arrest sought to be expunged resulted in an acquittal, | 11 | | dismissal, the petitioner's release without charging, | 12 | | or the reversal or vacation of a conviction, there is | 13 | | no waiting period to petition for the expungement of | 14 | | such records. | 15 | | (B) When the arrest or charge not initiated by | 16 | | arrest
sought to be expunged resulted in an order of | 17 | | supervision, successfully
completed by the petitioner, | 18 | | the following time frames will apply: | 19 | | (i) Those arrests or charges that resulted in | 20 | | orders of
supervision under Section 3-707, 3-708, | 21 | | 3-710, or 5-401.3 of the Illinois Vehicle Code or a | 22 | | similar provision of a local ordinance, or under | 23 | | Section 11-1.50, 12-3.2, or 12-15 of the Criminal | 24 | | Code of 1961 or the Criminal Code of 2012, or a | 25 | | similar provision of a local ordinance, shall not | 26 | | be eligible for expungement until 5 years have |
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| 1 | | passed following the satisfactory termination of | 2 | | the supervision. | 3 | | (i-5) Those arrests or charges that resulted | 4 | | in orders of supervision for a misdemeanor | 5 | | violation of subsection (a) of Section 11-503 of | 6 | | the Illinois Vehicle Code or a similar provision of | 7 | | a local ordinance, that occurred prior to the | 8 | | offender reaching the age of 25 years and the | 9 | | offender has no other conviction for violating | 10 | | Section 11-501 or 11-503 of the Illinois Vehicle | 11 | | Code or a similar provision of a local ordinance | 12 | | shall not be eligible for expungement until the | 13 | | petitioner has reached the age of 25 years. | 14 | | (ii) Those arrests or charges that resulted in | 15 | | orders
of supervision for any other offenses shall | 16 | | not be
eligible for expungement until 2 years have | 17 | | passed
following the satisfactory termination of | 18 | | the supervision. | 19 | | (C) When the arrest or charge not initiated by | 20 | | arrest sought to
be expunged resulted in an order of | 21 | | qualified probation, successfully
completed by the | 22 | | petitioner, such records shall not be eligible for
| 23 | | expungement until 5 years have passed following the | 24 | | satisfactory
termination of the probation. | 25 | | (3) Those records maintained by the Department for
| 26 | | persons arrested prior to their 17th birthday shall be
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| 1 | | expunged as provided in Section 5-915 of the Juvenile Court
| 2 | | Act of 1987. | 3 | | (4) Whenever a person has been arrested for or | 4 | | convicted of any
offense, in the name of a person whose | 5 | | identity he or she has stolen or otherwise
come into | 6 | | possession of, the aggrieved person from whom the identity
| 7 | | was stolen or otherwise obtained without authorization,
| 8 | | upon learning of the person having been arrested using his
| 9 | | or her identity, may, upon verified petition to the chief | 10 | | judge of
the circuit wherein the arrest was made, have a | 11 | | court order
entered nunc pro tunc by the Chief Judge to | 12 | | correct the
arrest record, conviction record, if any, and | 13 | | all official
records of the arresting authority, the | 14 | | Department, other
criminal justice agencies, the | 15 | | prosecutor, and the trial
court concerning such arrest, if | 16 | | any, by removing his or her name
from all such records in | 17 | | connection with the arrest and
conviction, if any, and by | 18 | | inserting in the records the
name of the offender, if known | 19 | | or ascertainable, in lieu of
the aggrieved's name. The | 20 | | records of the circuit court clerk shall be sealed until | 21 | | further order of
the court upon good cause shown and the | 22 | | name of the
aggrieved person obliterated on the official | 23 | | index
required to be kept by the circuit court clerk under
| 24 | | Section 16 of the Clerks of Courts Act, but the order shall
| 25 | | not affect any index issued by the circuit court clerk
| 26 | | before the entry of the order. Nothing in this Section
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| 1 | | shall limit the Department of State Police or other
| 2 | | criminal justice agencies or prosecutors from listing
| 3 | | under an offender's name the false names he or she has
| 4 | | used. | 5 | | (5) Whenever a person has been convicted of criminal
| 6 | | sexual assault, aggravated criminal sexual assault,
| 7 | | predatory criminal sexual assault of a child, criminal
| 8 | | sexual abuse, or aggravated criminal sexual abuse, the
| 9 | | victim of that offense may request that the State's
| 10 | | Attorney of the county in which the conviction occurred
| 11 | | file a verified petition with the presiding trial judge at
| 12 | | the petitioner's trial to have a court order entered to | 13 | | seal
the records of the circuit court clerk in connection
| 14 | | with the proceedings of the trial court concerning that
| 15 | | offense. However, the records of the arresting authority
| 16 | | and the Department of State Police concerning the offense
| 17 | | shall not be sealed. The court, upon good cause shown,
| 18 | | shall make the records of the circuit court clerk in
| 19 | | connection with the proceedings of the trial court
| 20 | | concerning the offense available for public inspection. | 21 | | (6) If a conviction has been set aside on direct review
| 22 | | or on collateral attack and the court determines by clear
| 23 | | and convincing evidence that the petitioner was factually
| 24 | | innocent of the charge, the court that finds the petitioner | 25 | | factually innocent of the charge shall enter an
expungement | 26 | | order for the conviction for which the petitioner has been |
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| 1 | | determined to be innocent as provided in subsection (b) of | 2 | | Section
5-5-4 of the Unified Code of Corrections. | 3 | | (7) Nothing in this Section shall prevent the | 4 | | Department of
State Police from maintaining all records of | 5 | | any person who
is admitted to probation upon terms and | 6 | | conditions and who
fulfills those terms and conditions | 7 | | pursuant to Section 10
of the Cannabis Control Act, Section | 8 | | 410 of the Illinois
Controlled Substances Act, Section 70 | 9 | | of the
Methamphetamine Control and Community Protection | 10 | | Act,
Section 5-6-3.3 of the Unified Code of Corrections, | 11 | | Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of | 12 | | the Criminal Code of 1961 or the Criminal Code of 2012, | 13 | | Section 10-102
of the Illinois Alcoholism and Other Drug | 14 | | Dependency Act,
Section 40-10 of the Alcoholism and Other | 15 | | Drug Abuse and
Dependency Act, or Section 10 of the Steroid | 16 | | Control Act. | 17 | | (8) If the petitioner has been granted a certificate of | 18 | | innocence under Section 2-702 of the Code of Civil | 19 | | Procedure, the court that grants the certificate of | 20 | | innocence shall also enter an order expunging the | 21 | | conviction for which the petitioner has been determined to | 22 | | be innocent as provided in subsection (h) of Section 2-702 | 23 | | of the Code of Civil Procedure. | 24 | | (c) Sealing. | 25 | | (1) Applicability. Notwithstanding any other provision | 26 | | of this Act to the contrary, and cumulative with any rights |
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| 1 | | to expungement of criminal records, this subsection | 2 | | authorizes the sealing of criminal records of adults and of | 3 | | minors prosecuted as adults. | 4 | | (2) Eligible Records. The following records may be | 5 | | sealed: | 6 | | (A) All arrests resulting in release without | 7 | | charging; | 8 | | (B) Arrests or charges not initiated by arrest | 9 | | resulting in acquittal, dismissal, or conviction when | 10 | | the conviction was reversed or vacated, except as | 11 | | excluded by subsection (a)(3)(B); | 12 | | (C) Arrests or charges not initiated by arrest | 13 | | resulting in orders of supervision successfully | 14 | | completed by the petitioner, unless excluded by | 15 | | subsection (a)(3); | 16 | | (D) Arrests or charges not initiated by arrest | 17 | | resulting in convictions unless excluded by subsection | 18 | | (a)(3); | 19 | | (E) Arrests or charges not initiated by arrest | 20 | | resulting in orders of first offender probation under | 21 | | Section 10 of the Cannabis Control Act, Section 410 of | 22 | | the Illinois Controlled Substances Act, Section 70 of | 23 | | the Methamphetamine Control and Community Protection | 24 | | Act, or Section 5-6-3.3 of the Unified Code of | 25 | | Corrections; and | 26 | | (F) Arrests or charges not initiated by arrest |
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| 1 | | resulting in Class 4 felony convictions for the | 2 | | following offenses: | 3 | | (i) Section 11-14 of the Criminal Code of 1961 | 4 | | or the Criminal Code of 2012; | 5 | | (ii) Section 4 of the Cannabis Control Act; | 6 | | (iii) Section 402 of the Illinois Controlled | 7 | | Substances Act; | 8 | | (iv) the Methamphetamine Precursor Control | 9 | | Act; and | 10 | | (v) the Steroid Control Act. | 11 | | (3) When Records Are Eligible to Be Sealed. Records | 12 | | identified as eligible under subsection (c)(2) may be | 13 | | sealed as follows: | 14 | | (A) Records identified as eligible under | 15 | | subsection (c)(2)(A) and (c)(2)(B) may be sealed at any | 16 | | time. | 17 | | (B) Records identified as eligible under | 18 | | subsection (c)(2)(C) may be sealed
(i) 3 years after | 19 | | the termination of petitioner's last sentence (as | 20 | | defined in subsection (a)(1)(F)) if the petitioner has | 21 | | never been convicted of a criminal offense (as defined | 22 | | in subsection (a)(1)(D)); or
(ii) 4 years after the | 23 | | termination of the petitioner's last sentence (as | 24 | | defined in subsection (a)(1)(F)) if the petitioner has | 25 | | ever been convicted of a criminal offense (as defined | 26 | | in subsection (a)(1)(D)). |
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| 1 | | (C) Records identified as eligible under | 2 | | subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be | 3 | | sealed 4 years after the termination of the | 4 | | petitioner's last sentence (as defined in subsection | 5 | | (a)(1)(F)). | 6 | | (D) Records identified in subsection | 7 | | (a)(3)(A)(iii) may be sealed after the petitioner has | 8 | | reached the age of 25 years. | 9 | | (4) Subsequent felony convictions. A person may not | 10 | | have
subsequent felony conviction records sealed as | 11 | | provided in this subsection
(c) if he or she is convicted | 12 | | of any felony offense after the date of the
sealing of | 13 | | prior felony convictions as provided in this subsection | 14 | | (c). The court may, upon conviction for a subsequent felony | 15 | | offense, order the unsealing of prior felony conviction | 16 | | records previously ordered sealed by the court. | 17 | | (5) Notice of eligibility for sealing. Upon entry of a | 18 | | disposition for an eligible record under this subsection | 19 | | (c), the petitioner shall be informed by the court of the | 20 | | right to have the records sealed and the procedures for the | 21 | | sealing of the records. | 22 | | (d) Procedure. The following procedures apply to | 23 | | expungement under subsections (b) and (e), and sealing under | 24 | | subsections (c) and (e-5): | 25 | | (1) Filing the petition. Upon becoming eligible to | 26 | | petition for
the expungement or sealing of records under |
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| 1 | | this Section, the petitioner shall file a petition | 2 | | requesting the expungement
or sealing of records with the | 3 | | clerk of the court where the arrests occurred or the | 4 | | charges were brought, or both. If arrests occurred or | 5 | | charges were brought in multiple jurisdictions, a petition | 6 | | must be filed in each such jurisdiction. The petitioner | 7 | | shall pay the applicable fee, if not waived. | 8 | | (2) Contents of petition. The petition shall be
| 9 | | verified and shall contain the petitioner's name, date of
| 10 | | birth, current address and, for each arrest or charge not | 11 | | initiated by
arrest sought to be sealed or expunged, the | 12 | | case number, the date of
arrest (if any), the identity of | 13 | | the arresting authority, and such
other information as the | 14 | | court may require. During the pendency
of the proceeding, | 15 | | the petitioner shall promptly notify the
circuit court | 16 | | clerk of any change of his or her address. If the | 17 | | petitioner has received a certificate of eligibility for | 18 | | sealing from the Prisoner Review Board under paragraph (10) | 19 | | of subsection (a) of Section 3-3-2 of the Unified Code of | 20 | | Corrections, the certificate shall be attached to the | 21 | | petition. | 22 | | (3) Drug test. The petitioner must attach to the | 23 | | petition proof that the petitioner has passed a test taken | 24 | | within 30 days before the filing of the petition showing | 25 | | the absence within his or her body of all illegal | 26 | | substances as defined by the Illinois Controlled |
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| 1 | | Substances Act, the Methamphetamine Control and Community | 2 | | Protection Act, and the Cannabis Control Act if he or she | 3 | | is petitioning to seal felony records pursuant to clause | 4 | | (c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is | 5 | | petitioning to expunge felony records of a qualified | 6 | | probation pursuant to clause (b)(1)(B)(iv). | 7 | | (4) Service of petition. The circuit court clerk shall | 8 | | promptly
serve a copy of the petition on the State's | 9 | | Attorney or
prosecutor charged with the duty of prosecuting | 10 | | the
offense, the Department of State Police, the arresting
| 11 | | agency and the chief legal officer of the unit of local
| 12 | | government effecting the arrest. | 13 | | (5) Objections. | 14 | | (A) Any party entitled to notice of the petition | 15 | | may file an objection to the petition. All objections | 16 | | shall be in writing, shall be filed with the circuit | 17 | | court clerk, and shall state with specificity the basis | 18 | | of the objection. | 19 | | (B) Objections to a petition to expunge or seal | 20 | | must be filed within 60 days of the date of service of | 21 | | the petition. | 22 | | (6) Entry of order. | 23 | | (A) The Chief Judge of the circuit wherein the | 24 | | charge was brought, any judge of that circuit | 25 | | designated by the Chief Judge, or in counties of less | 26 | | than 3,000,000 inhabitants, the presiding trial judge |
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| 1 | | at the petitioner's trial, if any, shall rule on the | 2 | | petition to expunge or seal as set forth in this | 3 | | subsection (d)(6). | 4 | | (B) Unless the State's Attorney or prosecutor, the | 5 | | Department of
State Police, the arresting agency, or | 6 | | the chief legal officer
files an objection to the | 7 | | petition to expunge or seal within 60 days from the | 8 | | date of service of the petition, the court shall enter | 9 | | an order granting or denying the petition. | 10 | | (7) Hearings. If an objection is filed, the court shall | 11 | | set a date for a hearing and notify the petitioner and all | 12 | | parties entitled to notice of the petition of the hearing | 13 | | date at least 30 days prior to the hearing, and shall hear | 14 | | evidence on whether the petition should or should not be | 15 | | granted, and shall grant or deny the petition to expunge or | 16 | | seal the records based on the evidence presented at the | 17 | | hearing. | 18 | | (8) Service of order. After entering an order to | 19 | | expunge or
seal records, the court must provide copies of | 20 | | the order to the
Department, in a form and manner | 21 | | prescribed by the Department,
to the petitioner, to the | 22 | | State's Attorney or prosecutor
charged with the duty of | 23 | | prosecuting the offense, to the
arresting agency, to the | 24 | | chief legal officer of the unit of
local government | 25 | | effecting the arrest, and to such other
criminal justice | 26 | | agencies as may be ordered by the court. |
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| 1 | | (9) Effect of order. | 2 | | (A) Upon entry of an order to expunge records | 3 | | pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: | 4 | | (i) the records shall be expunged (as defined | 5 | | in subsection (a)(1)(E)) by the arresting agency, | 6 | | the Department, and any other agency as ordered by | 7 | | the court, within 60 days of the date of service of | 8 | | the order, unless a motion to vacate, modify, or | 9 | | reconsider the order is filed pursuant to | 10 | | paragraph (12) of subsection (d) of this Section; | 11 | | (ii) the records of the circuit court clerk | 12 | | shall be impounded until further order of the court | 13 | | upon good cause shown and the name of the | 14 | | petitioner obliterated on the official index | 15 | | required to be kept by the circuit court clerk | 16 | | under Section 16 of the Clerks of Courts Act, but | 17 | | the order shall not affect any index issued by the | 18 | | circuit court clerk before the entry of the order; | 19 | | and | 20 | | (iii) in response to an inquiry for expunged | 21 | | records, the court, the Department, or the agency | 22 | | receiving such inquiry, shall reply as it does in | 23 | | response to inquiries when no records ever | 24 | | existed. | 25 | | (B) Upon entry of an order to expunge records | 26 | | pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: |
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| 1 | | (i) the records shall be expunged (as defined | 2 | | in subsection (a)(1)(E)) by the arresting agency | 3 | | and any other agency as ordered by the court, | 4 | | within 60 days of the date of service of the order, | 5 | | unless a motion to vacate, modify, or reconsider | 6 | | the order is filed pursuant to paragraph (12) of | 7 | | subsection (d) of this Section; | 8 | | (ii) the records of the circuit court clerk | 9 | | shall be impounded until further order of the court | 10 | | upon good cause shown and the name of the | 11 | | petitioner obliterated on the official index | 12 | | required to be kept by the circuit court clerk | 13 | | under Section 16 of the Clerks of Courts Act, but | 14 | | the order shall not affect any index issued by the | 15 | | circuit court clerk before the entry of the order; | 16 | | (iii) the records shall be impounded by the
| 17 | | Department within 60 days of the date of service of | 18 | | the order as ordered by the court, unless a motion | 19 | | to vacate, modify, or reconsider the order is filed | 20 | | pursuant to paragraph (12) of subsection (d) of | 21 | | this Section; | 22 | | (iv) records impounded by the Department may | 23 | | be disseminated by the Department only as required | 24 | | by law or to the arresting authority, the State's | 25 | | Attorney, and the court upon a later arrest for the | 26 | | same or a similar offense or for the purpose of |
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| 1 | | sentencing for any subsequent felony, and to the | 2 | | Department of Corrections upon conviction for any | 3 | | offense; and | 4 | | (v) in response to an inquiry for such records | 5 | | from anyone not authorized by law to access such | 6 | | records the court, the Department, or the agency | 7 | | receiving such inquiry shall reply as it does in | 8 | | response to inquiries when no records ever | 9 | | existed. | 10 | | (C) Upon entry of an order to seal records under | 11 | | subsection
(c), the arresting agency, any other agency | 12 | | as ordered by the court, the Department, and the court | 13 | | shall seal the records (as defined in subsection | 14 | | (a)(1)(K)). In response to an inquiry for such records | 15 | | from anyone not authorized by law to access such | 16 | | records the court, the Department, or the agency | 17 | | receiving such inquiry shall reply as it does in | 18 | | response to inquiries when no records ever existed. | 19 | | (10) Fees. The Department may charge the petitioner a | 20 | | fee equivalent to the cost of processing any order to | 21 | | expunge or seal records. Notwithstanding any provision of | 22 | | the Clerks of Courts Act to the contrary, the circuit court | 23 | | clerk may charge a fee equivalent to the cost associated | 24 | | with the sealing or expungement of records by the circuit | 25 | | court clerk. From the total filing fee collected for the | 26 | | petition to seal or expunge, the circuit court clerk shall |
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| 1 | | deposit $10 into the Circuit Court Clerk Operation and | 2 | | Administrative Fund, to be used to offset the costs | 3 | | incurred by the circuit court clerk in performing the | 4 | | additional duties required to serve the petition to seal or | 5 | | expunge on all parties. The circuit court clerk shall | 6 | | collect and forward the Department of State Police portion | 7 | | of the fee to the Department and it shall be deposited in | 8 | | the State Police Services Fund. | 9 | | (11) Final Order. No court order issued under the | 10 | | expungement or sealing provisions of this Section shall | 11 | | become final for purposes of appeal until 30 days after | 12 | | service of the order on the petitioner and all parties | 13 | | entitled to notice of the petition. | 14 | | (12) Motion to Vacate, Modify, or Reconsider. The | 15 | | petitioner or any party entitled to notice may file a | 16 | | motion to vacate, modify, or reconsider the order granting | 17 | | or denying the petition to expunge or seal within 60 days | 18 | | of service of the order. | 19 | | (e) Whenever a person who has been convicted of an offense | 20 | | is granted
a pardon by the Governor which specifically | 21 | | authorizes expungement, he or she may,
upon verified petition | 22 | | to the Chief Judge of the circuit where the person had
been | 23 | | convicted, any judge of the circuit designated by the Chief | 24 | | Judge, or in
counties of less than 3,000,000 inhabitants, the | 25 | | presiding trial judge at the
defendant's trial, have a court | 26 | | order entered expunging the record of
arrest from the official |
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| 1 | | records of the arresting authority and order that the
records | 2 | | of the circuit court clerk and the Department be sealed until
| 3 | | further order of the court upon good cause shown or as | 4 | | otherwise provided
herein, and the name of the defendant | 5 | | obliterated from the official index
requested to be kept by the | 6 | | circuit court clerk under Section 16 of the Clerks
of Courts | 7 | | Act in connection with the arrest and conviction for the | 8 | | offense for
which he or she had been pardoned but the order | 9 | | shall not affect any index issued by
the circuit court clerk | 10 | | before the entry of the order. All records sealed by
the | 11 | | Department may be disseminated by the Department only to the | 12 | | arresting authority, the State's Attorney, and the court upon a | 13 | | later
arrest for the same or similar offense or for the purpose | 14 | | of sentencing for any
subsequent felony. Upon conviction for | 15 | | any subsequent offense, the Department
of Corrections shall | 16 | | have access to all sealed records of the Department
pertaining | 17 | | to that individual. Upon entry of the order of expungement, the
| 18 | | circuit court clerk shall promptly mail a copy of the order to | 19 | | the
person who was pardoned. | 20 | | (e-5) Whenever a person who has been convicted of an | 21 | | offense is granted a certificate of eligibility for sealing by | 22 | | the Prisoner Review Board which specifically authorizes | 23 | | sealing, he or she may, upon verified petition to the Chief | 24 | | Judge of the circuit where the person had been convicted, any | 25 | | judge of the circuit designated by the Chief Judge, or in | 26 | | counties of less than 3,000,000 inhabitants, the presiding |
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| 1 | | trial judge at the petitioner's trial, have a court order | 2 | | entered sealing the record of arrest from the official records | 3 | | of the arresting authority and order that the records of the | 4 | | circuit court clerk and the Department be sealed until further | 5 | | order of the court upon good cause shown or as otherwise | 6 | | provided herein, and the name of the petitioner obliterated | 7 | | from the official index requested to be kept by the circuit | 8 | | court clerk under Section 16 of the Clerks of Courts Act in | 9 | | connection with the arrest and conviction for the offense for | 10 | | which he or she had been granted the certificate but the order | 11 | | shall not affect any index issued by the circuit court clerk | 12 | | before the entry of the order. All records sealed by the | 13 | | Department may be disseminated by the Department only as | 14 | | required by this Act or to the arresting authority, a law | 15 | | enforcement agency, the State's Attorney, and the court upon a | 16 | | later arrest for the same or similar offense or for the purpose | 17 | | of sentencing for any subsequent felony. Upon conviction for | 18 | | any subsequent offense, the Department of Corrections shall | 19 | | have access to all sealed records of the Department pertaining | 20 | | to that individual. Upon entry of the order of sealing, the | 21 | | circuit court clerk shall promptly mail a copy of the order to | 22 | | the person who was granted the certificate of eligibility for | 23 | | sealing. | 24 | | (f) Subject to available funding, the Illinois Department
| 25 | | of Corrections shall conduct a study of the impact of sealing,
| 26 | | especially on employment and recidivism rates, utilizing a
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| 1 | | random sample of those who apply for the sealing of their
| 2 | | criminal records under Public Act 93-211. At the request of the
| 3 | | Illinois Department of Corrections, records of the Illinois
| 4 | | Department of Employment Security shall be utilized as
| 5 | | appropriate to assist in the study. The study shall not
| 6 | | disclose any data in a manner that would allow the
| 7 | | identification of any particular individual or employing unit.
| 8 | | The study shall be made available to the General Assembly no
| 9 | | later than September 1, 2010.
| 10 | | (Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10; | 11 | | 96-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff. | 12 | | 7-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443, | 13 | | eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13; | 14 | | 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff. | 15 | | 1-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.) | 16 | | Section 10. The Unified Code of Corrections is amended by | 17 | | changing Section 5-5-4 as follows:
| 18 | | (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
| 19 | | Sec. 5-5-4. Resentences.
| 20 | | (a) Where a conviction or sentence has been set aside on | 21 | | direct review
or on collateral attack, the court shall not | 22 | | impose a new sentence for the same
offense or for a different | 23 | | offense based on the same conduct which is more
severe than the | 24 | | prior sentence less the portion of the prior sentence
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| 1 | | previously satisfied unless the more severe sentence is based | 2 | | upon conduct
on the part of the defendant occurring after the | 3 | | original sentencing.
If a sentence is vacated on appeal or on | 4 | | collateral attack due to the
failure of the trier of fact at | 5 | | trial to determine beyond a reasonable doubt
the existence of a | 6 | | fact (other than a prior conviction) necessary to increase
the
| 7 | | punishment for the offense beyond the statutory maximum | 8 | | otherwise applicable,
either the defendant may be re-sentenced | 9 | | to a term within the range otherwise
provided or, if the State | 10 | | files notice of its intention to again seek the
extended | 11 | | sentence, the defendant shall be afforded a new trial.
| 12 | | (b) If a conviction or sentence has been set aside on | 13 | | direct review or on
collateral attack and
the court determines | 14 | | by clear and convincing evidence that the defendant was
| 15 | | factually innocent of the
charge, the court shall enter an | 16 | | order expunging the record of arrest from the
official records | 17 | | of the
arresting authority and order that the records of the | 18 | | clerk of the circuit
court and Department of
State Police be | 19 | | sealed until further order of the court upon good cause shown
| 20 | | or as otherwise provided
herein, and the name of the defendant | 21 | | obliterated from the official index
requested to be kept by the
| 22 | | circuit court clerk under Section 16 of the Clerks of Courts | 23 | | Act in connection
with the arrest and
conviction for the | 24 | | offense but the order shall not affect any index issued by
the | 25 | | circuit court clerk before the entry of the order. The court | 26 | | shall enter the expungement order regardless of whether the |
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| 1 | | defendant has prior criminal convictions.
| 2 | | All records sealed by the Department of State Police may be
| 3 | | disseminated by the Department only as required by law or to | 4 | | the arresting
authority, the State's Attorney, the court upon a | 5 | | later arrest for the same or
similar offense, or for the | 6 | | purpose of sentencing for any subsequent felony.
Upon | 7 | | conviction for any subsequent offense, the Department of | 8 | | Corrections shall
have access to all sealed records of the | 9 | | Department
pertaining to that individual.
| 10 | | Upon entry of the order of expungement, the clerk of the | 11 | | circuit court shall
promptly mail a copy of the order to the | 12 | | person whose records were expunged and
sealed. | 13 | | (c) If a conviction has been vacated as a result of a claim | 14 | | of actual innocence based on newly discovered evidence made | 15 | | under Section 122-1 of the Code of Criminal Procedure of 1963 | 16 | | or Section 2-1401 of the Code of Civil Procedure, and the | 17 | | provisions of paragraphs (1) and (2) of subsection (g) of | 18 | | Section 2-702 of the Code of Civil Procedure are otherwise | 19 | | satisfied, the court shall enter an order for a certificate of | 20 | | innocence and an order expunging the conviction for which the | 21 | | petitioner has been determined to be innocent as provided in | 22 | | subsection (h) of Section 2-702 of the Code of Civil Procedure.
| 23 | | (Source: P.A. 93-210, eff. 7-18-03.)
| 24 | | Section 15. The Code of Civil Procedure is amended by | 25 | | changing Section 2-702 as follows: |
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| 1 | | (735 ILCS 5/2-702) | 2 | | Sec. 2-702. Petition for a certificate of innocence that | 3 | | the petitioner was innocent of all offenses for which he or she | 4 | | was incarcerated. | 5 | | (a) The General Assembly finds and declares that innocent | 6 | | persons who have been wrongly convicted of crimes in Illinois | 7 | | and subsequently imprisoned have been frustrated in seeking | 8 | | legal redress due to a variety of substantive and technical | 9 | | obstacles in the law and that such persons should have an | 10 | | available avenue to obtain a finding of innocence so that they | 11 | | may obtain relief through a petition in the Court of Claims. | 12 | | The General Assembly further finds misleading the current legal | 13 | | nomenclature which compels an innocent person to seek a pardon | 14 | | for being wrongfully incarcerated. It is the intent of the | 15 | | General Assembly that the court, in exercising its discretion | 16 | | as permitted by law regarding the weight and admissibility of | 17 | | evidence submitted pursuant to this Section, shall, in the | 18 | | interest of justice, give due consideration to difficulties of | 19 | | proof caused by the passage of time, the death or | 20 | | unavailability of witnesses, the destruction of evidence or | 21 | | other factors not caused by such persons or those acting on | 22 | | their behalf. | 23 | | (b) Any person convicted and subsequently imprisoned for | 24 | | one or more felonies by the State of Illinois which he or she | 25 | | did not commit may, under the conditions hereinafter provided, |
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| 1 | | file a petition for certificate of innocence in the circuit | 2 | | court of the county in which the person was convicted. The | 3 | | petition shall request a certificate of innocence finding that | 4 | | the petitioner was innocent of all offenses for which he or she | 5 | | was incarcerated. | 6 | | (c) In order to present the claim for certificate of | 7 | | innocence of an unjust conviction and imprisonment, the | 8 | | petitioner must attach to his or her petition documentation | 9 | | demonstrating that: | 10 | | (1) he or she has been convicted of one or more | 11 | | felonies by the State of Illinois and subsequently | 12 | | sentenced to a term of imprisonment, and has served all or | 13 | | any part of the sentence; and | 14 | | (2) his or her judgment of conviction was reversed or | 15 | | vacated, and the indictment or information dismissed or, if | 16 | | a new trial was ordered, either he or she was found not | 17 | | guilty at the new trial or he or she was not retried and | 18 | | the indictment or information dismissed; or the statute, or | 19 | | application thereof, on which the indictment or | 20 | | information was based violated the Constitution of the | 21 | | United States or the State of Illinois; and | 22 | | (3) his or her claim is not time barred by the | 23 | | provisions of subsection (i) of this Section. | 24 | | (d) The petition shall state facts in sufficient detail to | 25 | | permit the court to find that the petitioner is likely to | 26 | | succeed at trial in proving that the petitioner is innocent of |
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| 1 | | the offenses charged in the indictment or information or his or | 2 | | her acts or omissions charged in the indictment or information | 3 | | did not constitute a felony or misdemeanor against the State of | 4 | | Illinois, and the petitioner did not by his or her own conduct | 5 | | voluntarily cause or bring about his or her conviction. The | 6 | | petition shall be verified by the petitioner. | 7 | | (e) A copy of the petition shall be served on the Attorney | 8 | | General and the State's Attorney of the county where the | 9 | | conviction was had. The Attorney General and the State's | 10 | | Attorney of the county where the conviction was had shall have | 11 | | the right to intervene as parties. | 12 | | (f) In any hearing seeking a certificate of innocence, the | 13 | | court may take judicial notice of prior sworn testimony or | 14 | | evidence admitted in the criminal proceedings related to the | 15 | | convictions which resulted in the alleged wrongful | 16 | | incarceration, if the petitioner was either represented by | 17 | | counsel at such prior proceedings or the right to counsel was | 18 | | knowingly waived. | 19 | | (g) In order to obtain a certificate of innocence the | 20 | | petitioner must prove by a preponderance of evidence that: | 21 | | (1) the petitioner was convicted of one or more | 22 | | felonies by the State of Illinois and subsequently | 23 | | sentenced to a term of imprisonment, and has served all or | 24 | | any part of the sentence; | 25 | | (2)(A) the judgment of conviction was reversed or | 26 | | vacated, and the indictment or information dismissed or, if |
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| 1 | | a new trial was ordered, either the petitioner was found | 2 | | not guilty at the new trial or the petitioner was not | 3 | | retried and the indictment or information dismissed; or (B) | 4 | | the statute, or application thereof, on which the | 5 | | indictment or information was based violated the | 6 | | Constitution of the United States or the State of Illinois; | 7 | | (3) the petitioner is innocent of the offenses charged | 8 | | in the indictment or information or his or her acts or | 9 | | omissions charged in the indictment or information did not | 10 | | constitute a felony or misdemeanor against the State; and | 11 | | (4) the petitioner did not by his or her own conduct
| 12 | | voluntarily cause or bring about his or her 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 |
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| 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. The court | 7 | | shall enter the expungement order regardless of whether the | 8 | | petitioner has prior criminal convictions. | 9 | | All records sealed by the Department of State Police may be
| 10 | | disseminated by the Department only as required by law or to | 11 | | the arresting
authority, the State's Attorney, the court upon a | 12 | | later arrest for the same or
similar offense, or for the | 13 | | purpose of sentencing for any subsequent felony.
Upon | 14 | | conviction for any subsequent offense, the Department of | 15 | | Corrections shall
have access to all sealed records of the | 16 | | Department
pertaining to that individual. | 17 | | Upon entry of the order of expungement, the clerk of the | 18 | | circuit court shall
promptly mail a copy of the order to the | 19 | | person whose records were expunged and
sealed. | 20 | | (i) Any person seeking a certificate of innocence under | 21 | | this
Section based on the dismissal of an indictment or | 22 | | information
or acquittal that occurred before the effective | 23 | | date of this
amendatory Act of the 95th General Assembly shall | 24 | | file his or
her petition within 2 years after the effective | 25 | | date of this
amendatory Act of the 95th General Assembly. Any | 26 | | person seeking
a certificate of innocence under this Section |
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| 1 | | based on the
dismissal of an indictment or information or | 2 | | acquittal that
occurred on or after the effective date of this | 3 | | amendatory Act
of the 95th General Assembly shall file his or | 4 | | her petition
within 2 years after the dismissal. | 5 | | (j) The decision to grant or deny a certificate of | 6 | | innocence shall be binding only with respect to claims filed in | 7 | | the Court of Claims and shall not have a res judicata effect on | 8 | | any other proceedings.
| 9 | | (Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11 .)".
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