Sen. Don Harmon
Filed: 5/5/2004
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1 | AMENDMENT TO HOUSE BILL 7057
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2 | AMENDMENT NO. ______. Amend House Bill 7057, AS AMENDED, by | ||||||
3 | replacing the introductory clause of Section 5 with the | ||||||
4 | following:
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5 | "Section 5. The Sexually Violent Persons Commitment Act is | ||||||
6 | amended by changing Sections 25 and 30 as follows: | ||||||
7 | (725 ILCS 207/25)
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8 | Sec. 25. Rights of persons subject to petition.
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9 | (a) Any person who is the subject of a petition filed under
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10 | Section 15 of this Act shall be served with a copy of the
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11 | petition in accordance with the Civil Practice Law.
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12 | (b) The circuit court in which a petition under Section 15 | ||||||
13 | of
this Act is filed shall conduct all hearings under this Act. | ||||||
14 | The
court shall give the person who is the subject of the | ||||||
15 | petition
reasonable notice of the time and place of each such | ||||||
16 | hearing. The
court may designate additional persons to receive | ||||||
17 | these notices.
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18 | (c) Except as provided in paragraph (b)(1) of Section 65 | ||||||
19 | and Section 70 of
this Act,
at any hearing conducted under this | ||||||
20 | Act, the person who is the
subject of the petition has the | ||||||
21 | right to :
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22 | (1) To be present and to be represented by counsel. If | ||||||
23 | the person is
indigent, the court shall
appoint counsel.
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24 | (2) To remain silent.
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1 | (3) To present and cross-examine witnesses.
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2 | (4) To have the hearing recorded by a court reporter.
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3 | (d) The person who is the subject of the petition, the | ||||||
4 | person's
attorney, the Attorney General or the State's Attorney | ||||||
5 | may request
that a trial under Section 35 of this Act be to a | ||||||
6 | jury. A verdict
of a jury under this Act is not valid unless it | ||||||
7 | is unanimous.
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8 | (e) Whenever the person who is the subject of the petition | ||||||
9 | is
required to submit to an examination under this Act, he or | ||||||
10 | she may
retain experts or professional persons to perform an | ||||||
11 | examination.
The respondent's chosen evaluator must be | ||||||
12 | approved by the Sex
Offender Management Board and the | ||||||
13 | evaluation must be conducted in conformance
with the standards | ||||||
14 | developed under the Sex Offender Management Board
Act.
If the | ||||||
15 | person retains a qualified expert or professional person
of his | ||||||
16 | or her own choice to conduct an examination, the examiner
shall | ||||||
17 | have reasonable access to the person for the purpose of the
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18 | examination, as well as to the person's past and present | ||||||
19 | treatment
records and patient health care records. If the | ||||||
20 | person is
indigent, the court shall, upon the person's request, | ||||||
21 | appoint a
qualified and available expert or professional person | ||||||
22 | to perform
an examination. Upon the order of the circuit court, | ||||||
23 | the county
shall pay, as part of the costs of the action, the | ||||||
24 | costs of a
court-appointed expert or professional person to | ||||||
25 | perform an
examination and participate in the trial on behalf | ||||||
26 | of an indigent
person.
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27 | (Source: P.A. 93-616, eff. 1-1-04; revised 1-10-04.)
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28 | (725 ILCS 207/30)
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29 | Sec. 30. Detention; probable cause hearing; transfer for
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30 | examination.
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31 | (a) Upon the filing of a petition under Section 15 of this | ||||||
32 | Act,
the court shall review the petition to determine whether | ||||||
33 | to issue
an order for detention of the person who is the |
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1 | subject of the
petition. The person shall be detained only if | ||||||
2 | there is cause to
believe that the person is eligible for | ||||||
3 | commitment under subsection (f) of
Section
35 of this Act. A | ||||||
4 | person detained under this Section shall be
held in a facility | ||||||
5 | approved by the Department. If the person is
serving a sentence | ||||||
6 | of imprisonment, is in a Department of
Corrections correctional | ||||||
7 | facility or juvenile correctional
facility or is committed to | ||||||
8 | institutional care, and the court
orders detention under this | ||||||
9 | Section, the court shall order that
the person be transferred | ||||||
10 | to a detention facility approved by the
Department. A detention | ||||||
11 | order under this Section remains in
effect until the person is | ||||||
12 | discharged after a trial under Section
35 of this Act or until | ||||||
13 | the effective date of a commitment order
under Section 40 of | ||||||
14 | this Act, whichever is applicable.
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15 | (b) Whenever a petition is filed under Section 15 of this | ||||||
16 | Act,
the court shall hold a hearing to determine whether there | ||||||
17 | is
probable cause to believe that the person named in the | ||||||
18 | petition is
a sexually violent person. If the person named in | ||||||
19 | the petition is
in custody, the court shall hold the probable | ||||||
20 | cause hearing within
72 hours after the petition is filed, | ||||||
21 | excluding Saturdays, Sundays
and legal holidays. The court may | ||||||
22 | grant a continuance of the probable cause
hearing for no more | ||||||
23 | than 7 additional days upon the motion of the respondent,
for | ||||||
24 | good cause. If the person named in the petition has been | ||||||
25 | released, is
on parole, is on mandatory supervised release, or | ||||||
26 | otherwise is not in
custody, the court shall hold the probable | ||||||
27 | cause hearing within a
reasonable time after the filing of the | ||||||
28 | petition.
At the probable cause hearing, the court shall admit | ||||||
29 | and consider all
relevant hearsay evidence.
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30 | (c) If the court determines after a hearing that there is
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31 | probable cause to believe that the person named in the petition | ||||||
32 | is
a sexually violent person, the court shall order that the | ||||||
33 | person
be taken into custody if he or she is not in custody and | ||||||
34 | shall
order the person to be transferred within a reasonable |
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1 | time to an
appropriate facility for an evaluation as to whether | ||||||
2 | the person is
a sexually violent person.
If the person who is | ||||||
3 | named in the petition refuses to speak to, communicate
with, or | ||||||
4 | otherwise fails to cooperate with the examining evaluator from | ||||||
5 | the
Department of Human Services or the Department of | ||||||
6 | Corrections, that person may
only introduce evidence and | ||||||
7 | testimony from any expert or professional person
who is | ||||||
8 | retained or court-appointed to conduct an examination of the | ||||||
9 | person
that results from a review of the records and may not | ||||||
10 | introduce evidence
resulting from an examination of the person.
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11 | Any evaluation conducted under this Section shall be by an | ||||||
12 | evaluator
approved by the Sex Offender Management Board and | ||||||
13 | conducted in conformance with
the standards developed under the | ||||||
14 | Sex Offender Management Board Act.
Notwithstanding the | ||||||
15 | provisions of Section 10 of
the
Mental Health and Developmental | ||||||
16 | Disabilities Confidentiality Act, all
evaluations conducted | ||||||
17 | pursuant to this Act and all Illinois Department of
Corrections | ||||||
18 | treatment records shall be admissible at all proceedings held
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19 | pursuant to this Act, including the probable cause hearing and | ||||||
20 | the trial.
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21 | If the court determines that probable
cause does not exist | ||||||
22 | to believe that the person is a sexually
violent person, the | ||||||
23 | court shall dismiss the petition.
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24 | (d) The Department shall promulgate rules that provide the
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25 | qualifications for persons conducting evaluations under | ||||||
26 | subsection
(c) of this Section.
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27 | (e) If the person named in the petition claims or appears | ||||||
28 | to be
indigent, the court shall, prior to the probable cause | ||||||
29 | hearing
under subsection (b) of this Section, appoint
counsel.
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30 | (Source: P.A. 92-415, eff. 8-17-01; 93-616, eff. 1-1-04.)
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31 | Section 10. The Unified Code of Corrections is amended by | ||||||
32 | changing Sections 5-3-1, 5-3-2, 5-3-4, 5-4-3.1, 5-6-3, and | ||||||
33 | 5-6-3.1 as follows: |
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1 | (730 ILCS 5/5-3-1) (from Ch. 38, par. 1005-3-1)
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2 | Sec. 5-3-1. Presentence Investigation. A defendant shall | ||||||
3 | not
be sentenced for a felony before a written presentence | ||||||
4 | report
of investigation is presented to and considered by the | ||||||
5 | court.
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6 | However, other than for felony sex offenders being | ||||||
7 | considered for probation
in cases other than felony sex | ||||||
8 | offenses as defined in the Sex
Offender Management Board Act , | ||||||
9 | the court need not order a presentence report
of
investigation | ||||||
10 | where both parties agree to the imposition of
a specific | ||||||
11 | sentence, provided there is a finding made for the
record as to | ||||||
12 | the defendant's history of delinquency or criminality,
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13 | including any previous sentence to a term of probation, | ||||||
14 | periodic
imprisonment, conditional discharge, or imprisonment.
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15 | The court may order a presentence investigation of any | ||||||
16 | defendant.
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17 | (Source: P.A. 93-616, eff. 1-1-04.)
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18 | (730 ILCS 5/5-3-2) (from Ch. 38, par. 1005-3-2)
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19 | Sec. 5-3-2. Presentence Report.
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20 | (a) In felony cases, the presentence
report shall set | ||||||
21 | forth:
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22 | (1) the defendant's history of delinquency or | ||||||
23 | criminality,
physical and mental history and condition, | ||||||
24 | family situation and
background, economic status, | ||||||
25 | education, occupation and personal habits;
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26 | (2) information about special resources within the | ||||||
27 | community
which might be available to assist the | ||||||
28 | defendant's rehabilitation,
including treatment centers, | ||||||
29 | residential facilities, vocational
training services, | ||||||
30 | correctional manpower programs, employment
opportunities, | ||||||
31 | special educational programs, alcohol and drug
abuse | ||||||
32 | programming, psychiatric and marriage counseling, and |
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1 | other
programs and facilities which could aid the | ||||||
2 | defendant's successful
reintegration into society;
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3 | (3) the effect the offense committed has had upon the | ||||||
4 | victim or
victims thereof, and any compensatory benefit | ||||||
5 | that various
sentencing alternatives would confer on such | ||||||
6 | victim or victims;
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7 | (4) information concerning the defendant's status | ||||||
8 | since arrest,
including his record if released on his own | ||||||
9 | recognizance, or the
defendant's achievement record if | ||||||
10 | released on a conditional
pre-trial supervision program;
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11 | (5) when appropriate, a plan, based upon the personal, | ||||||
12 | economic
and social adjustment needs of the defendant, | ||||||
13 | utilizing public and
private community resources as an | ||||||
14 | alternative to institutional
sentencing;
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15 | (6) any other matters that the investigatory officer | ||||||
16 | deems
relevant or the court directs to be included; and
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17 | (7) information concerning defendant's eligibility for | ||||||
18 | a sentence to a
county impact incarceration program under | ||||||
19 | Section 5-8-1.2 of this Code.
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20 | (b) The investigation shall include a physical and mental
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21 | examination of the defendant when so ordered by the court. If
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22 | the court determines that such an examination should be made, | ||||||
23 | it
shall issue an order that the defendant submit to | ||||||
24 | examination at
such time and place as designated by the court | ||||||
25 | and that such
examination be conducted by a physician, | ||||||
26 | psychologist or
psychiatrist designated by the court. Such an | ||||||
27 | examination may
be conducted in a court clinic if so ordered by | ||||||
28 | the court. The
cost of such examination shall be paid by the | ||||||
29 | county in which
the trial is held.
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30 | (b-5) In cases involving felony sex offenses in which the | ||||||
31 | offender is being considered for probation or any felony | ||||||
32 | offense that is
sexually motivated as defined in the Sex | ||||||
33 | Offender Management Board Act in which the offender is being | ||||||
34 | considered for probation , the
investigation shall include a sex |
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1 | offender evaluation by an evaluator approved
by the Board and | ||||||
2 | conducted in conformance with the standards developed under
the | ||||||
3 | Sex Offender Management Board Act.
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4 | (c) In misdemeanor, business offense or petty offense | ||||||
5 | cases, except as
specified in subsection (d) of this Section, | ||||||
6 | when a presentence report has
been ordered by the court, such | ||||||
7 | presentence report shall contain
information on the | ||||||
8 | defendant's history of delinquency or criminality and
shall | ||||||
9 | further contain only those matters listed in any of paragraphs | ||||||
10 | (1)
through (6) of subsection (a) or in subsection (b) of this | ||||||
11 | Section as are
specified by the court in its order for the | ||||||
12 | report.
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13 | (d) In cases under Section 12-15 and Section 12-30 of the | ||||||
14 | Criminal
Code of 1961, as amended, the presentence report shall | ||||||
15 | set forth
information about alcohol, drug abuse, psychiatric, | ||||||
16 | and marriage counseling
or other treatment programs and | ||||||
17 | facilities, information on the defendant's
history of | ||||||
18 | delinquency or criminality, and shall contain those additional
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19 | matters listed in any of paragraphs (1) through (6) of | ||||||
20 | subsection (a) or in
subsection (b) of this Section as are | ||||||
21 | specified by the court.
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22 | (e) Nothing in this Section shall cause the defendant to be
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23 | held without bail or to have his bail revoked for the purpose
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24 | of preparing the presentence report or making an examination.
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25 | (Source: P.A. 93-616, eff. 1-1-04.)
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26 | (730 ILCS 5/5-3-4) (from Ch. 38, par. 1005-3-4)
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27 | Sec. 5-3-4. Disclosure of Reports.
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28 | (a) Any report made pursuant to this Article or Section | ||||||
29 | 5-705
of the Juvenile
Court Act of 1987 shall be filed of | ||||||
30 | record with the court in a sealed envelope.
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31 | (b) Presentence reports shall be open for inspection only | ||||||
32 | as follows:
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33 | (1) to the sentencing court;
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1 | (2) to the state's attorney and the defendant's | ||||||
2 | attorney at least 3 days
prior to the imposition of | ||||||
3 | sentence, unless such 3 day requirement is waived;
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4 | (3) to an appellate court in which the conviction or | ||||||
5 | sentence is subject
to review;
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6 | (4) to any department, agency or institution to which | ||||||
7 | the defendant is
committed;
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8 | (5) to any probation department of whom courtesy | ||||||
9 | probation is requested;
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10 | (6) to any probation department assigned by a court of | ||||||
11 | lawful
jurisdiction to conduct a presentence report;
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12 | (7) to any other person only as ordered by the court; | ||||||
13 | and
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14 | (8) to any mental health professional on behalf of the | ||||||
15 | Illinois
Department
of Corrections or the Department of | ||||||
16 | Human Services or to a prosecutor who is
evaluating or | ||||||
17 | investigating a potential or actual petition brought under
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18 | the Sexually Violent Persons Commitment Act relating to a | ||||||
19 | person who is the
subject of
a
presentence report or the | ||||||
20 | respondent to a petition brought under the
Sexually Violent | ||||||
21 | Persons Commitment Act who is the subject of the | ||||||
22 | presentence
report sought.
Any records and any information | ||||||
23 | obtained from those records under this
paragraph (8) may be | ||||||
24 | used only in sexually violent persons commitment
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25 | proceedings.
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26 | (c) Presentence reports shall be filed of record with the | ||||||
27 | court within
60
30 days of a verdict or finding of guilty for | ||||||
28 | any offense involving an
illegal sexual act perpetrated upon a | ||||||
29 | victim, including but not limited to
offenses for violations of | ||||||
30 | Article 12 of the Criminal Code of 1961 , or any offense | ||||||
31 | determined by the court or the probation department to be | ||||||
32 | sexually motivated, as defined in the Sex Offender Management | ||||||
33 | Board Act .
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34 | (d) A complaint, information or indictment shall not be |
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1 | quashed or
dismissed nor shall any person in custody for an | ||||||
2 | offense be discharged from
custody because of noncompliance | ||||||
3 | with subsection (c) of this Section.
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4 | (Source: P.A. 92-415, eff. 8-17-01.)
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5 | (730 ILCS 5/5-4-3.1) (from Ch. 38, par. 1005-4-3.1)
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6 | Sec. 5-4-3.1. Sentencing Hearing for Sex Offenses.
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7 | (a) Except for good cause shown by written motion, any | ||||||
8 | person adjudged
guilty of any offense involving an illegal | ||||||
9 | sexual act perpetrated upon a
victim, including but not limited | ||||||
10 | to offenses for violations of Article 12
of the Criminal Code | ||||||
11 | of 1961, or any offense determined by the court or the | ||||||
12 | probation department to be sexually motivated, as defined in | ||||||
13 | the Sex Offender Management Board Act, shall be sentenced | ||||||
14 | within 65
45 days of a
verdict or finding of guilt for the | ||||||
15 | offense.
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16 | (b) The court shall set the sentencing date at the time the | ||||||
17 | verdict or
finding of guilt is entered by the court.
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18 | (c) Any motion for continuance shall be in writing and | ||||||
19 | supported by
affidavit and in compliance with Section 114-4 of | ||||||
20 | the Code of Criminal
Procedure of 1963, and the victim shall be | ||||||
21 | notified of the date and time of
hearing and shall be provided | ||||||
22 | an opportunity to address the court on the
impact the | ||||||
23 | continuance may have on the victim's well-being.
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24 | (d) A complaint, information or indictment shall not be | ||||||
25 | quashed or
dismissed, nor shall any person in custody for an | ||||||
26 | offense be discharged
from custody because of non-compliance | ||||||
27 | with this Section.
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28 | (Source: P.A. 87-900.)".
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