Sen. Don Harmon

Filed: 5/5/2004

 

 


 

 


 
09300HB7057sam003 LRB093 18519 WGH 50574 a

1
AMENDMENT TO HOUSE BILL 7057

2     AMENDMENT NO. ______. Amend House Bill 7057, AS AMENDED, by
3 replacing the introductory clause of Section 5 with the
4 following:
 
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)
8     Sec. 25. Rights of persons subject to petition.
9     (a) Any person who is the subject of a petition filed under
10 Section 15 of this Act shall be served with a copy of the
11 petition in accordance with the Civil Practice Law.
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.
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:
22         (1) To be present and to be represented by counsel. If
23     the person is indigent, the court shall appoint counsel.
24         (2) To remain silent.

 

 

09300HB7057sam003 - 2 - LRB093 18519 WGH 50574 a

1         (3) To present and cross-examine witnesses.
2         (4) To have the hearing recorded by a court reporter.
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.
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
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.
27 (Source: P.A. 93-616, eff. 1-1-04; revised 1-10-04.)
 
28     (725 ILCS 207/30)
29     Sec. 30. Detention; probable cause hearing; transfer for
30 examination.
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

 

 

09300HB7057sam003 - 3 - LRB093 18519 WGH 50574 a

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.
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.
30     (c) If the court determines after a hearing that there is
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

 

 

09300HB7057sam003 - 4 - LRB093 18519 WGH 50574 a

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.
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
19 pursuant to this Act, including the probable cause hearing and
20 the trial.
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.
24     (d) The Department shall promulgate rules that provide the
25 qualifications for persons conducting evaluations under
26 subsection (c) of this Section.
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.
30 (Source: P.A. 92-415, eff. 8-17-01; 93-616, eff. 1-1-04.)
 
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:
 

 

 

09300HB7057sam003 - 5 - LRB093 18519 WGH 50574 a

1     (730 ILCS 5/5-3-1)  (from Ch. 38, par. 1005-3-1)
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.
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,
13 including any previous sentence to a term of probation,
14 periodic imprisonment, conditional discharge, or imprisonment.
15     The court may order a presentence investigation of any
16 defendant.
17 (Source: P.A. 93-616, eff. 1-1-04.)
 
18     (730 ILCS 5/5-3-2)  (from Ch. 38, par. 1005-3-2)
19     Sec. 5-3-2. Presentence Report.
20     (a) In felony cases, the presentence report shall set
21 forth:
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;
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

 

 

09300HB7057sam003 - 6 - LRB093 18519 WGH 50574 a

1     other programs and facilities which could aid the
2     defendant's successful reintegration into society;
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;
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;
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;
15         (6) any other matters that the investigatory officer
16     deems relevant or the court directs to be included; and
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.
20     (b) The investigation shall include a physical and mental
21 examination of the defendant when so ordered by the court. If
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.
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

 

 

09300HB7057sam003 - 7 - LRB093 18519 WGH 50574 a

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.
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.
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
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.
22     (e) Nothing in this Section shall cause the defendant to be
23 held without bail or to have his bail revoked for the purpose
24 of preparing the presentence report or making an examination.
25 (Source: P.A. 93-616, eff. 1-1-04.)
 
26     (730 ILCS 5/5-3-4)  (from Ch. 38, par. 1005-3-4)
27     Sec. 5-3-4. Disclosure of Reports.
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.
31     (b) Presentence reports shall be open for inspection only
32 as follows:
33         (1) to the sentencing court;

 

 

09300HB7057sam003 - 8 - LRB093 18519 WGH 50574 a

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;
4         (3) to an appellate court in which the conviction or
5     sentence is subject to review;
6         (4) to any department, agency or institution to which
7     the defendant is committed;
8         (5) to any probation department of whom courtesy
9     probation is requested;
10         (6) to any probation department assigned by a court of
11     lawful jurisdiction to conduct a presentence report;
12         (7) to any other person only as ordered by the court;
13     and
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
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
25     proceedings.
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.
34     (d) A complaint, information or indictment shall not be

 

 

09300HB7057sam003 - 9 - LRB093 18519 WGH 50574 a

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.
4 (Source: P.A. 92-415, eff. 8-17-01.)
 
5     (730 ILCS 5/5-4-3.1)  (from Ch. 38, par. 1005-4-3.1)
6     Sec. 5-4-3.1. Sentencing Hearing for Sex Offenses.
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.
16     (b) The court shall set the sentencing date at the time the
17 verdict or finding of guilt is entered by the court.
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.
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.
28 (Source: P.A. 87-900.)".