Rep. Mary E. Flowers

Filed: 3/7/2023

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 1015

2    AMENDMENT NO. ______. Amend House Bill 1015 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Civil Procedure is amended by
5changing Section 2-702 as follows:
 
6    (735 ILCS 5/2-702)
7    Sec. 2-702. Petition for a certificate of innocence that
8the petitioner was innocent of all offenses for which he or she
9was incarcerated.
10    (a) The General Assembly finds and declares that innocent
11persons who have been wrongly convicted of crimes in Illinois
12and subsequently imprisoned have been frustrated in seeking
13legal redress due to a variety of substantive and technical
14obstacles in the law and that such persons should have an
15available avenue to obtain a finding of innocence so that they
16may obtain relief through a petition in the Court of Claims.

 

 

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1The General Assembly further finds misleading the current
2legal nomenclature which compels an innocent person to seek a
3pardon for being wrongfully incarcerated. It is the intent of
4the General Assembly that the court, in exercising its
5discretion as permitted by law regarding the weight and
6admissibility of evidence submitted pursuant to this Section,
7shall, in the interest of justice, give due consideration to
8difficulties of proof caused by the passage of time, the death
9or unavailability of witnesses, the destruction of evidence or
10other factors not caused by such persons or those acting on
11their behalf.
12    (b) Any person convicted and subsequently imprisoned for
13one or more felonies by the State of Illinois which he or she
14did not commit may, under the conditions hereinafter provided,
15file a petition for certificate of innocence in the circuit
16court of the county in which the person was convicted. The
17petition shall request a certificate of innocence finding that
18the petitioner was innocent of all offenses for which he or she
19was incarcerated.
20    (c) In order to present the claim for certificate of
21innocence of an unjust conviction and imprisonment, the
22petitioner must attach to his or her petition documentation
23demonstrating that:
24        (1) he or she has been convicted of one or more
25    felonies by the State of Illinois and subsequently
26    sentenced to a term of imprisonment, and has served all or

 

 

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1    any part of the sentence; and
2        (2) his or her judgment of conviction was reversed or
3    vacated, and the indictment or information dismissed or,
4    if a new trial was ordered, either he or she was found not
5    guilty at the new trial or he or she was not retried and
6    the indictment or information dismissed; or the statute,
7    or application thereof, on which the indictment or
8    information was based violated the Constitution of the
9    United States or the State of Illinois; and
10        (3) his or her claim is not time barred by the
11    provisions of subsection (i) of this Section.
12    (d) The petition shall state facts in sufficient detail to
13permit the court to find that the petitioner is likely to
14succeed at trial in proving that the petitioner is innocent of
15the alleged offenses for which he or she was convicted charged
16in the indictment or information or his or her acts or
17omissions for which he or she was convicted charged in the
18indictment or information did not constitute a felony or
19misdemeanor against the State of Illinois, and the petitioner
20did not by his or her own conduct voluntarily cause or bring
21about his or her conviction. The petition shall be verified by
22the petitioner.
23    (e) A copy of the petition shall be served on the Attorney
24General and the State's Attorney of the county where the
25conviction was had. The Attorney General and the State's
26Attorney of the county where the conviction was had shall have

 

 

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1the right to intervene as parties.
2    (f) In any hearing seeking a certificate of innocence, the
3court may take judicial notice of prior sworn testimony or
4evidence admitted in the criminal proceedings related to the
5convictions which resulted in the alleged wrongful
6incarceration, if the petitioner was either represented by
7counsel at such prior proceedings or the right to counsel was
8knowingly waived.
9    (g) In order to obtain a certificate of innocence the
10petitioner must prove by a preponderance of evidence that:
11        (1) the petitioner was convicted of one or more
12    felonies by the State of Illinois and subsequently
13    sentenced to a term of imprisonment, and has served all or
14    any part of the sentence;
15        (2)(A) the judgment of conviction was reversed or
16    vacated, and the indictment or information dismissed or,
17    if a new trial was ordered, either the petitioner was
18    found not guilty at the new trial or the petitioner was not
19    retried and the indictment or information dismissed; or
20    (B) the statute, or application thereof, on which the
21    indictment or information was based violated the
22    Constitution of the United States or the State of
23    Illinois;
24        (3) the petitioner is innocent of the alleged offenses
25    for which he or she was convicted charged in the
26    indictment or information or his or her acts or omissions

 

 

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1    for which he or she was convicted charged in the
2    indictment or information did not constitute a felony or
3    misdemeanor against the State; and
4        (4) the petitioner did not by his or her own conduct
5    voluntarily cause or bring about his or her conviction.
6    (h) If the court finds that the petitioner is entitled to a
7judgment, it shall enter a certificate of innocence finding
8that the petitioner was innocent of all offenses for which he
9or she was incarcerated. Upon entry of the certificate of
10innocence or pardon from the Governor stating that such pardon
11was issued on the ground of innocence of the crime for which he
12or she was imprisoned, (1) the clerk of the court shall
13transmit a copy of the certificate of innocence to the clerk of
14the Court of Claims, together with the claimant's current
15address; and (2) the court shall enter an order expunging the
16record of arrest from the official records of the arresting
17authority and order that the records of the clerk of the
18circuit court and the Illinois State Police be sealed until
19further order of the court upon good cause shown or as
20otherwise provided herein, and the name of the defendant
21obliterated from the official index requested to be kept by
22the circuit court clerk under Section 16 of the Clerks of
23Courts Act in connection with the arrest and conviction for
24the offense but the order shall not affect any index issued by
25the circuit court clerk before the entry of the order. The
26court shall enter the expungement order regardless of whether

 

 

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1the petitioner has prior criminal convictions.
2    All records sealed by the Illinois State Police may be
3disseminated by the Department only as required by law or to
4the arresting authority, the State's Attorney, the court upon
5a later arrest for the same or similar offense, or for the
6purpose of sentencing for any subsequent felony. Upon
7conviction for any subsequent offense, the Department of
8Corrections shall have access to all sealed records of the
9Department pertaining to that individual.
10    Upon entry of the order of expungement, the clerk of the
11circuit court shall promptly mail a copy of the order to the
12person whose records were expunged and sealed.
13    (i) Any person seeking a certificate of innocence under
14this Section based on the dismissal of an indictment or
15information or acquittal that occurred before the effective
16date of this amendatory Act of the 95th General Assembly shall
17file his or her petition within 2 years after the effective
18date of this amendatory Act of the 95th General Assembly. Any
19person seeking a certificate of innocence under this Section
20based on the dismissal of an indictment or information or
21acquittal that occurred on or after the effective date of this
22amendatory Act of the 95th General Assembly shall file his or
23her petition within 2 years after the dismissal.
24    (j) The decision to grant or deny a certificate of
25innocence shall be binding only with respect to claims filed
26in the Court of Claims and shall not have a res judicata effect

 

 

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1on any other proceedings.
2    (k) The changes to this Section made by this amendatory
3Act of the 103rd General Assembly apply to petitions filed on
4and after September 22, 2008.
5(Source: P.A. 102-538, eff. 8-20-21.)".