HB7057sam003 93RD GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 5/5/2004

09300HB7057sam003 LRB093 18519 WGH 50574 a

AMENDMENT TO HOUSE BILL 7057

AMENDMENT NO. ______. Amend House Bill 7057, AS AMENDED, by replacing the introductory clause of Section 5 with the following:

"Section 5. The Sexually Violent Persons Commitment Act is amended by changing Sections 25 and 30 as follows:

(725 ILCS 207/25)

Sec. 25. Rights of persons subject to petition.

(a) Any person who is the subject of a petition filed under Section 15 of this Act shall be served with a copy of the petition in accordance with the Civil Practice Law.

(b) The circuit court in which a petition under Section 15 of this Act is filed shall conduct all hearings under this Act. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.

(c) Except as provided in paragraph (b)(1) of Section 65 and Section 70 of this Act, at any hearing conducted under this Act, the person who is the subject of the petition has the right to:

(1) To be present and to be represented by counsel. If the person is indigent, the court shall appoint counsel.

(2) To remain silent.

(3) To present and cross-examine witnesses.

(4) To have the hearing recorded by a court reporter.

(d) The person who is the subject of the petition, the person's attorney, the Attorney General or the State's Attorney may request that a trial under Section 35 of this Act be to a jury. A verdict of a jury under this Act is not valid unless it is unanimous.

(e) Whenever the person who is the subject of the petition is required to submit to an examination under this Act, he or she may retain experts or professional persons to perform an examination. The respondent's chosen evaluator must be approved by the Sex Offender Management Board and the evaluation must be conducted in conformance with the standards developed under the Sex Offender Management Board Act. If the person retains a qualified expert or professional person of his or her own choice to conduct an examination, the examiner shall have reasonable access to the person for the purpose of the examination, as well as to the person's past and present treatment records and patient health care records. If the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of a court-appointed expert or professional person to perform an examination and participate in the trial on behalf of an indigent person.

(Source: P.A. 93-616, eff. 1-1-04; revised 1-10-04.)

(725 ILCS 207/30)

Sec. 30. Detention; probable cause hearing; transfer for examination.

(a) Upon the filing of a petition under Section 15 of this Act, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is cause to believe that the person is eligible for commitment under subsection (f) of Section 35 of this Act. A person detained under this Section shall be held in a facility approved by the Department. If the person is serving a sentence of imprisonment, is in a Department of Corrections correctional facility or juvenile correctional facility or is committed to institutional care, and the court orders detention under this Section, the court shall order that the person be transferred to a detention facility approved by the Department. A detention order under this Section remains in effect until the person is discharged after a trial under Section 35 of this Act or until the effective date of a commitment order under Section 40 of this Act, whichever is applicable.

(b) Whenever a petition is filed under Section 15 of this Act, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person. If the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays and legal holidays. The court may grant a continuance of the probable cause hearing for no more than 7 additional days upon the motion of the respondent, for good cause. If the person named in the petition has been released, is on parole, is on mandatory supervised release, or otherwise is not in custody, the court shall hold the probable cause hearing within a reasonable time after the filing of the petition. At the probable cause hearing, the court shall admit and consider all relevant hearsay evidence.

(c) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person. If the person who is named in the petition refuses to speak to, communicate with, or otherwise fails to cooperate with the examining evaluator from the Department of Human Services or the Department of Corrections, that person may only introduce evidence and testimony from any expert or professional person who is retained or court-appointed to conduct an examination of the person that results from a review of the records and may not introduce evidence resulting from an examination of the person. Any evaluation conducted under this Section shall be by an evaluator approved by the Sex Offender Management Board and conducted in conformance with the standards developed under the Sex Offender Management Board Act. Notwithstanding the provisions of Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, all evaluations conducted pursuant to this Act and all Illinois Department of Corrections treatment records shall be admissible at all proceedings held pursuant to this Act, including the probable cause hearing and the trial.

If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.

(d) The Department shall promulgate rules that provide the qualifications for persons conducting evaluations under subsection (c) of this Section.

(e) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under subsection (b) of this Section, appoint counsel.

(Source: P.A. 92-415, eff. 8-17-01; 93-616, eff. 1-1-04.)

Section 10. The Unified Code of Corrections is amended by changing Sections 5-3-1, 5-3-2, 5-3-4, 5-4-3.1, 5-6-3, and 5-6-3.1 as follows:

(730 ILCS 5/5-3-1) (from Ch. 38, par. 1005-3-1)

Sec. 5-3-1. Presentence Investigation. A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.

However, other than for felony sex offenders being considered for probation in cases other than felony sex offenses as defined in the Sex Offender Management Board Act, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.

The court may order a presentence investigation of any defendant.

(Source: P.A. 93-616, eff. 1-1-04.)

(730 ILCS 5/5-3-2) (from Ch. 38, par. 1005-3-2)

Sec. 5-3-2. Presentence Report.

(a) In felony cases, the presentence report shall set forth:

(1) the defendant's history of delinquency or criminality, physical and mental history and condition, family situation and background, economic status, education, occupation and personal habits;

(2) information about special resources within the community which might be available to assist the defendant's rehabilitation, including treatment centers, residential facilities, vocational training services, correctional manpower programs, employment opportunities, special educational programs, alcohol and drug abuse programming, psychiatric and marriage counseling, and other programs and facilities which could aid the defendant's successful reintegration into society;

(3) the effect the offense committed has had upon the victim or victims thereof, and any compensatory benefit that various sentencing alternatives would confer on such victim or victims;

(4) information concerning the defendant's status since arrest, including his record if released on his own recognizance, or the defendant's achievement record if released on a conditional pre-trial supervision program;

(5) when appropriate, a plan, based upon the personal, economic and social adjustment needs of the defendant, utilizing public and private community resources as an alternative to institutional sentencing;

(6) any other matters that the investigatory officer deems relevant or the court directs to be included; and

(7) information concerning defendant's eligibility for a sentence to a county impact incarceration program under Section 5-8-1.2 of this Code.

(b) The investigation shall include a physical and mental examination of the defendant when so ordered by the court. If the court determines that such an examination should be made, it shall issue an order that the defendant submit to examination at such time and place as designated by the court and that such examination be conducted by a physician, psychologist or psychiatrist designated by the court. Such an examination may be conducted in a court clinic if so ordered by the court. The cost of such examination shall be paid by the county in which the trial is held.

(b-5) In cases involving felony sex offenses in which the offender is being considered for probation or any felony offense that is sexually motivated as defined in the Sex Offender Management Board Act in which the offender is being considered for probation, the investigation shall include a sex offender evaluation by an evaluator approved by the Board and conducted in conformance with the standards developed under the Sex Offender Management Board Act.

(c) In misdemeanor, business offense or petty offense cases, except as specified in subsection (d) of this Section, when a presentence report has been ordered by the court, such presentence report shall contain information on the defendant's history of delinquency or criminality and shall further contain only those matters listed in any of paragraphs (1) through (6) of subsection (a) or in subsection (b) of this Section as are specified by the court in its order for the report.

(d) In cases under Section 12-15 and Section 12-30 of the Criminal Code of 1961, as amended, the presentence report shall set forth information about alcohol, drug abuse, psychiatric, and marriage counseling or other treatment programs and facilities, information on the defendant's history of delinquency or criminality, and shall contain those additional matters listed in any of paragraphs (1) through (6) of subsection (a) or in subsection (b) of this Section as are specified by the court.

(e) Nothing in this Section shall cause the defendant to be held without bail or to have his bail revoked for the purpose of preparing the presentence report or making an examination.

(Source: P.A. 93-616, eff. 1-1-04.)

(730 ILCS 5/5-3-4) (from Ch. 38, par. 1005-3-4)

Sec. 5-3-4. Disclosure of Reports.

(a) Any report made pursuant to this Article or Section 5-705 of the Juvenile Court Act of 1987 shall be filed of record with the court in a sealed envelope.

(b) Presentence reports shall be open for inspection only as follows:

(1) to the sentencing court;

(2) to the state's attorney and the defendant's attorney at least 3 days prior to the imposition of sentence, unless such 3 day requirement is waived;

(3) to an appellate court in which the conviction or sentence is subject to review;

(4) to any department, agency or institution to which the defendant is committed;

(5) to any probation department of whom courtesy probation is requested;

(6) to any probation department assigned by a court of lawful jurisdiction to conduct a presentence report;

(7) to any other person only as ordered by the court; and

(8) to any mental health professional on behalf of the Illinois Department of Corrections or the Department of Human Services or to a prosecutor who is evaluating or investigating a potential or actual petition brought under the Sexually Violent Persons Commitment Act relating to a person who is the subject of a presentence report or the respondent to a petition brought under the Sexually Violent Persons Commitment Act who is the subject of the presentence report sought. Any records and any information obtained from those records under this paragraph (8) may be used only in sexually violent persons commitment proceedings.

(c) Presentence reports shall be filed of record with the court within 60 30 days of a verdict or finding of guilty for any offense involving an illegal sexual act perpetrated upon a victim, including but not limited to offenses for violations of Article 12 of the Criminal Code of 1961, or any offense determined by the court or the probation department to be sexually motivated, as defined in the Sex Offender Management Board Act.

(d) A complaint, information or indictment shall not be quashed or dismissed nor shall any person in custody for an offense be discharged from custody because of noncompliance with subsection (c) of this Section.

(Source: P.A. 92-415, eff. 8-17-01.)

(730 ILCS 5/5-4-3.1) (from Ch. 38, par. 1005-4-3.1)

Sec. 5-4-3.1. Sentencing Hearing for Sex Offenses.

(a) Except for good cause shown by written motion, any person adjudged guilty of any offense involving an illegal sexual act perpetrated upon a victim, including but not limited to offenses for violations of Article 12 of the Criminal Code of 1961, or any offense determined by the court or the probation department to be sexually motivated, as defined in the Sex Offender Management Board Act, shall be sentenced within 65 45 days of a verdict or finding of guilt for the offense.

(b) The court shall set the sentencing date at the time the verdict or finding of guilt is entered by the court.

(c) Any motion for continuance shall be in writing and supported by affidavit and in compliance with Section 114-4 of the Code of Criminal Procedure of 1963, and the victim shall be notified of the date and time of hearing and shall be provided an opportunity to address the court on the impact the continuance may have on the victim's well-being.

(d) A complaint, information or indictment shall not be quashed or dismissed, nor shall any person in custody for an offense be discharged from custody because of non-compliance with this Section.

(Source: P.A. 87-900.)".