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Rep. Kelly M. Cassidy
Filed: 4/21/2023
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1 | | AMENDMENT TO SENATE BILL 2260
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2 | | AMENDMENT NO. ______. Amend Senate Bill 2260 by replacing |
3 | | everything after the enacting clause with the following:
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4 | | "Section 5. The Code of Civil Procedure is amended by |
5 | | changing Section 2-1401 as follows:
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6 | | (735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
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7 | | Sec. 2-1401. Relief from judgments.
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8 | | (a) Relief from final orders and judgments, after 30 days |
9 | | from the
entry thereof, may be had upon petition as provided in |
10 | | this Section.
Writs of error coram nobis and coram vobis, |
11 | | bills of review, and bills
in the nature of bills of review are |
12 | | abolished. All relief heretofore
obtainable and the grounds |
13 | | for such relief heretofore available,
whether by any of the |
14 | | foregoing remedies or otherwise, shall be
available in every |
15 | | case, by proceedings hereunder, regardless of the
nature of |
16 | | the order or judgment from which relief is sought or of the
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1 | | proceedings in which it was entered. Except as provided in the |
2 | | Illinois Parentage Act of 2015, there shall be no distinction
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3 | | between actions and other proceedings, statutory or otherwise, |
4 | | as to
availability of relief, grounds for relief, or the |
5 | | relief obtainable.
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6 | | (b) The petition must be filed in the same proceeding in |
7 | | which the
order or judgment was entered but is not a |
8 | | continuation thereof. The
petition must be supported by an |
9 | | affidavit or other appropriate showing as
to matters not of |
10 | | record. A petition to reopen a foreclosure proceeding must |
11 | | include as parties to the petition, but is not limited to, all |
12 | | parties in the original action in addition to the current |
13 | | record title holders of the property, current occupants, and |
14 | | any individual or entity that had a recorded interest in the |
15 | | property before the filing of the petition. All parties to the |
16 | | petition shall be notified
as provided by rule.
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17 | | (b-5) A movant may present a meritorious claim under this |
18 | | Section if the allegations in the petition establish each of |
19 | | the following by a preponderance of the evidence: |
20 | | (1) the movant was convicted of a forcible felony; |
21 | | (2) the movant's participation in the offense was |
22 | | related to him or her previously having been a victim of |
23 | | domestic violence or gender-based violence as perpetrated |
24 | | by an intimate partner ; |
25 | | (3) there is substantial no evidence of domestic |
26 | | violence or gender-based violence against the movant that |
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1 | | was not presented at the movant's sentencing hearing; |
2 | | (4) (blank) the movant was unaware of the mitigating |
3 | | nature of the evidence of the domestic violence at the |
4 | | time of sentencing and could not have learned of its |
5 | | significance sooner through diligence ; and |
6 | | (5) the new evidence of domestic violence or |
7 | | gender-based violence against the movant is material and |
8 | | noncumulative to other evidence offered at the sentencing |
9 | | hearing, or previous hearing under this Section filed on |
10 | | or after the effective date of this amendatory Act of the |
11 | | 103rd General Assembly, and is of such a conclusive |
12 | | character that it would likely change the sentence imposed |
13 | | by the original trial court. |
14 | | Nothing in this subsection (b-5) shall prevent a movant |
15 | | from applying for any other relief under this Section or any |
16 | | other law otherwise available to him or her. |
17 | | As used in this subsection (b-5): |
18 | | "Domestic violence" means abuse as defined in Section |
19 | | 103
of the Illinois Domestic Violence Act of 1986. |
20 | | "Forcible felony" has the meaning ascribed to the term |
21 | | in
Section 2-8 of the Criminal Code of 2012. |
22 | | "Gender-based violence" includes evidence of |
23 | | victimization as a trafficking victim, as defined by |
24 | | paragraph (10) of subsection (a) of Section 10-9 of the |
25 | | Criminal Code of 2012, evidence of victimization under the |
26 | | Illinois Domestic Violence Act of 1986, evidence of |
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1 | | victimization under the Stalking No Contact Order Act, or |
2 | | evidence of victimization of any offense under Article 11 |
3 | | of the Criminal Code of 2012, irrespective of criminal |
4 | | prosecution or conviction. |
5 | | "Intimate partner" means a spouse or former spouse, |
6 | | persons
who have or allegedly have had a child in common, |
7 | | or persons who
have or have had a dating or engagement |
8 | | relationship. |
9 | | "Substantial evidence" means evidence that a |
10 | | reasonable mind might accept as adequate to support a |
11 | | conclusion. |
12 | | (b-10) A movant may present a meritorious claim under this |
13 | | Section if the allegations in the petition establish each of |
14 | | the following by a preponderance of the evidence: |
15 | | (A) she was convicted of a forcible felony; |
16 | | (B) her participation in the offense was a direct |
17 | | result of her suffering from post-partum depression or |
18 | | post-partum psychosis; |
19 | | (C) no evidence of post-partum depression or |
20 | | post-partum psychosis was presented by a qualified medical |
21 | | person at trial or sentencing, or both; |
22 | | (D) she was unaware of the mitigating nature of the |
23 | | evidence or, if aware, was at the time unable to present |
24 | | this defense due to suffering from post-partum depression |
25 | | or post-partum psychosis, or, at the time of trial or |
26 | | sentencing, neither was a recognized mental illness and as |
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1 | | such, she was unable to receive proper treatment;
and |
2 | | (E) evidence of post-partum depression or post-partum |
3 | | psychosis as suffered by the person is material and |
4 | | noncumulative to other evidence offered at the time of |
5 | | trial or sentencing, and it is of such a conclusive |
6 | | character that it would likely change the sentence imposed |
7 | | by the original court. |
8 | | Nothing in this subsection (b-10) prevents a person from |
9 | | applying for any other relief under this Article or any other |
10 | | law otherwise available to her. |
11 | | As used in this subsection (b-10): |
12 | | "Post-partum depression" means a mood disorder which |
13 | | strikes many women during and after pregnancy and usually |
14 | | occurs during pregnancy and up to 12 months after |
15 | | delivery. This depression can include anxiety disorders. |
16 | | "Post-partum psychosis" means an extreme form of |
17 | | post-partum depression which can occur during pregnancy |
18 | | and up to 12 months after delivery. This can include |
19 | | losing touch with reality, distorted thinking, delusions, |
20 | | auditory and visual hallucinations, paranoia, |
21 | | hyperactivity and rapid speech, or mania. |
22 | | (c) Except as provided in Section 20b of the Adoption Act |
23 | | and Section
2-32 of the Juvenile Court Act of 1987, in a |
24 | | petition based
upon Section 116-3 of the Code of Criminal |
25 | | Procedure of 1963 or subsection (b-5) or (b-10) of this |
26 | | Section, or in a motion to vacate and expunge convictions |
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1 | | under the Cannabis Control Act as provided by subsection (i) |
2 | | of Section 5.2 of the Criminal Identification Act, the |
3 | | petition
must be filed not later than 2 years after the entry |
4 | | of the order or judgment.
Time during which the person seeking |
5 | | relief is under legal disability or
duress or the ground for |
6 | | relief is fraudulently concealed shall be excluded
in |
7 | | computing the period of 2 years.
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8 | | (c-5) Any individual may at any time file a petition and |
9 | | institute proceedings under this Section if his or her final |
10 | | order or judgment, which was entered based on a plea of guilty |
11 | | or nolo contendere, has potential consequences under federal |
12 | | immigration law. |
13 | | (d) The filing of a petition under this Section does not |
14 | | affect the
order or judgment, or suspend its operation.
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15 | | (e) Unless lack of jurisdiction affirmatively appears from |
16 | | the
record proper, the vacation or modification of an order or |
17 | | judgment
pursuant to the provisions of this Section does not |
18 | | affect the right,
title, or interest in or to any real or |
19 | | personal property of any person,
not a party to the original |
20 | | action, acquired for value after the entry
of the order or |
21 | | judgment but before the filing of the petition, nor
affect any |
22 | | right of any person not a party to the original action under
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23 | | any certificate of sale issued before the filing of the |
24 | | petition,
pursuant to a sale based on the order or judgment. |
25 | | When a petition is filed pursuant to this Section to reopen a |
26 | | foreclosure proceeding, notwithstanding the provisions of |
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1 | | Section 15-1701 of this Code, the purchaser or successor |
2 | | purchaser of real property subject to a foreclosure sale who |
3 | | was not a party to the mortgage foreclosure proceedings is |
4 | | entitled to remain in possession of the property until the |
5 | | foreclosure action is defeated or the previously foreclosed |
6 | | defendant redeems from the foreclosure sale if the purchaser |
7 | | has been in possession of the property for more than 6 months.
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8 | | (f) Nothing contained in this Section affects any existing |
9 | | right to
relief from a void order or judgment, or to employ any |
10 | | existing method
to procure that relief.
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11 | | (Source: P.A. 101-27, eff. 6-25-19; 101-411, eff. 8-16-19; |
12 | | 102-639, eff. 8-27-21; 102-813, eff. 5-13-22.)".
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