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(730 ILCS 5/5-5-4)
(from Ch. 38, par. 1005-5-4)
(a) Where a conviction or sentence has been set aside on direct review
or on collateral attack, the court shall not impose a new sentence for the same
offense or for a different offense based on the same conduct which is more
severe than the prior sentence less the portion of the prior sentence
previously satisfied unless the more severe sentence is based upon conduct
on the part of the defendant occurring after the original sentencing.
If a sentence is vacated on appeal or on collateral attack due to the
failure of the trier of fact at trial to determine beyond a reasonable doubt
the existence of a fact (other than a prior conviction) necessary to increase
punishment for the offense beyond the statutory maximum otherwise applicable,
either the defendant may be re-sentenced to a term within the range otherwise
provided or, if the State files notice of its intention to again seek the
extended sentence, the defendant shall be afforded a new trial.
(b) If a conviction or sentence has been set aside on direct review or on
collateral attack and
the court determines by clear and convincing evidence that the defendant was
factually innocent of the
charge, the court shall enter an order expunging the record of arrest from the
official records of the
arresting authority and order that the records of the clerk of the circuit
court and Illinois State Police be sealed until further order of the court upon good cause shown
or as otherwise provided
herein, and the name of the defendant obliterated from the official index
requested to be kept by the
circuit court clerk under Section 16 of the Clerks of Courts Act in connection
with the arrest and
conviction for the offense but the order shall not affect any index issued by
the circuit court clerk before the entry of the order. The court shall enter the expungement order regardless of whether the defendant has prior criminal convictions.
All records sealed by the Illinois State Police may be
disseminated by the Department only as required by law or to the arresting
authority, the State's Attorney, the court upon a later arrest for the same or
similar offense, or for the purpose of sentencing for any subsequent felony.
Upon conviction for any subsequent offense, the Department of Corrections shall
have access to all sealed records of the Department
pertaining to that individual.
Upon entry of the order of expungement, the clerk of the circuit court shall
promptly mail a copy of the order to the person whose records were expunged and
(c) If a conviction has been vacated as a result of a claim of actual innocence based on newly discovered evidence made under Section 122-1 of the Code of Criminal Procedure of 1963 or Section 2-1401 of the Code of Civil Procedure, and the provisions of paragraphs (1) and (2) of subsection (g) of Section 2-702 of the Code of Civil Procedure are otherwise satisfied, the court shall enter an order for a certificate of innocence and an order expunging the conviction for which the petitioner has been determined to be innocent as provided in subsection (h) of Section 2-702 of the Code of Civil Procedure.
(Source: P.A. 102-538, eff. 8-20-21.)