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1 | | AN ACT concerning criminal law.
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2 | | Be it enacted by the People of the State of Illinois,
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3 | | represented in the General Assembly:
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4 | | Section 5. The Criminal Identification Act is amended by |
5 | | changing Section 5.2 as follows:
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6 | | (20 ILCS 2630/5.2)
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7 | | Sec. 5.2. Expungement, sealing, and immediate sealing. |
8 | | (a) General Provisions. |
9 | | (1) Definitions. In this Act, words and phrases have
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10 | | the meanings set forth in this subsection, except when a
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11 | | particular context clearly requires a different meaning. |
12 | | (A) The following terms shall have the meanings |
13 | | ascribed to them in the Unified Code of Corrections, |
14 | | 730 ILCS 5/5-1-2 through 5/5-1-22: |
15 | | (i) Business Offense (730 ILCS 5/5-1-2), |
16 | | (ii) Charge (730 ILCS 5/5-1-3), |
17 | | (iii) Court (730 ILCS 5/5-1-6), |
18 | | (iv) Defendant (730 ILCS 5/5-1-7), |
19 | | (v) Felony (730 ILCS 5/5-1-9), |
20 | | (vi) Imprisonment (730 ILCS 5/5-1-10), |
21 | | (vii) Judgment (730 ILCS 5/5-1-12), |
22 | | (viii) Misdemeanor (730 ILCS 5/5-1-14), |
23 | | (ix) Offense (730 ILCS 5/5-1-15), |
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1 | | (x) Parole (730 ILCS 5/5-1-16), |
2 | | (xi) Petty Offense (730 ILCS 5/5-1-17), |
3 | | (xii) Probation (730 ILCS 5/5-1-18), |
4 | | (xiii) Sentence (730 ILCS 5/5-1-19), |
5 | | (xiv) Supervision (730 ILCS 5/5-1-21), and |
6 | | (xv) Victim (730 ILCS 5/5-1-22). |
7 | | (B) As used in this Section, "charge not initiated |
8 | | by arrest" means a charge (as defined by 730 ILCS |
9 | | 5/5-1-3) brought against a defendant where the |
10 | | defendant is not arrested prior to or as a direct |
11 | | result of the charge. |
12 | | (C) "Conviction" means a judgment of conviction or |
13 | | sentence entered upon a plea of guilty or upon a |
14 | | verdict or finding of guilty of an offense, rendered |
15 | | by a legally constituted jury or by a court of |
16 | | competent jurisdiction authorized to try the case |
17 | | without a jury. An order of supervision successfully |
18 | | completed by the petitioner is not a conviction. An |
19 | | order of qualified probation (as defined in subsection |
20 | | (a)(1)(J)) successfully completed by the petitioner is |
21 | | not a conviction. An order of supervision or an order |
22 | | of qualified probation that is terminated |
23 | | unsatisfactorily is a conviction, unless the |
24 | | unsatisfactory termination is reversed, vacated, or |
25 | | modified and the judgment of conviction, if any, is |
26 | | reversed or vacated. |
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1 | | (D) "Criminal offense" means a petty offense, |
2 | | business offense, misdemeanor, felony, or municipal |
3 | | ordinance violation (as defined in subsection |
4 | | (a)(1)(H)). As used in this Section, a minor traffic |
5 | | offense (as defined in subsection (a)(1)(G)) shall not |
6 | | be considered a criminal offense. |
7 | | (E) "Expunge" means to physically destroy the |
8 | | records or return them to the petitioner and to |
9 | | obliterate the petitioner's name from any official |
10 | | index or public record, or both. Nothing in this Act |
11 | | shall require the physical destruction of the circuit |
12 | | court file, but such records relating to arrests or |
13 | | charges, or both, ordered expunged shall be impounded |
14 | | as required by subsections (d)(9)(A)(ii) and |
15 | | (d)(9)(B)(ii). |
16 | | (F) As used in this Section, "last sentence" means |
17 | | the sentence, order of supervision, or order of |
18 | | qualified probation (as defined by subsection |
19 | | (a)(1)(J)), for a criminal offense (as defined by |
20 | | subsection (a)(1)(D)) that terminates last in time in |
21 | | any jurisdiction, regardless of whether the petitioner |
22 | | has included the criminal offense for which the |
23 | | sentence or order of supervision or qualified |
24 | | probation was imposed in his or her petition. If |
25 | | multiple sentences, orders of supervision, or orders |
26 | | of qualified probation terminate on the same day and |
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1 | | are last in time, they shall be collectively |
2 | | considered the "last sentence" regardless of whether |
3 | | they were ordered to run concurrently. |
4 | | (G) "Minor traffic offense" means a petty offense, |
5 | | business offense, or Class C misdemeanor under the |
6 | | Illinois Vehicle Code or a similar provision of a |
7 | | municipal or local ordinance. |
8 | | (G-5) "Minor Cannabis Offense" means a violation |
9 | | of Section 4 or 5 of the Cannabis Control Act |
10 | | concerning not more than 30 grams of any substance |
11 | | containing cannabis, provided the violation did not |
12 | | include a penalty enhancement under Section 7 of the |
13 | | Cannabis Control Act and is not associated with an |
14 | | arrest, conviction or other disposition for a violent |
15 | | crime as defined in subsection (c) of Section 3 of the |
16 | | Rights of Crime Victims and Witnesses Act. |
17 | | (H) "Municipal ordinance violation" means an |
18 | | offense defined by a municipal or local ordinance that |
19 | | is criminal in nature and with which the petitioner |
20 | | was charged or for which the petitioner was arrested |
21 | | and released without charging. |
22 | | (I) "Petitioner" means an adult or a minor |
23 | | prosecuted as an
adult who has applied for relief |
24 | | under this Section. |
25 | | (J) "Qualified probation" means an order of |
26 | | probation under Section 10 of the Cannabis Control |
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1 | | Act, Section 410 of the Illinois Controlled Substances |
2 | | Act, Section 70 of the Methamphetamine Control and |
3 | | Community Protection Act, Section 5-6-3.3 or 5-6-3.4 |
4 | | of the Unified Code of Corrections, Section |
5 | | 12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as |
6 | | those provisions existed before their deletion by |
7 | | Public Act 89-313), Section 10-102 of the Illinois |
8 | | Alcoholism and Other Drug Dependency Act, Section |
9 | | 40-10 of the Substance Use Disorder Act, or Section 10 |
10 | | of the Steroid Control Act. For the purpose of this |
11 | | Section, "successful completion" of an order of |
12 | | qualified probation under Section 10-102 of the |
13 | | Illinois Alcoholism and Other Drug Dependency Act and |
14 | | Section 40-10 of the Substance Use Disorder Act means |
15 | | that the probation was terminated satisfactorily and |
16 | | the judgment of conviction was vacated. |
17 | | (K) "Seal" means to physically and electronically |
18 | | maintain the records, unless the records would |
19 | | otherwise be destroyed due to age, but to make the |
20 | | records unavailable without a court order, subject to |
21 | | the exceptions in Sections 12 and 13 of this Act. The |
22 | | petitioner's name shall also be obliterated from the |
23 | | official index required to be kept by the circuit |
24 | | court clerk under Section 16 of the Clerks of Courts |
25 | | Act, but any index issued by the circuit court clerk |
26 | | before the entry of the order to seal shall not be |
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1 | | affected. |
2 | | (L) "Sexual offense committed against a minor" |
3 | | includes, but is
not limited to, the offenses of |
4 | | indecent solicitation of a child
or criminal sexual |
5 | | abuse when the victim of such offense is
under 18 years |
6 | | of age. |
7 | | (M) "Terminate" as it relates to a sentence or |
8 | | order of supervision or qualified probation includes |
9 | | either satisfactory or unsatisfactory termination of |
10 | | the sentence, unless otherwise specified in this |
11 | | Section. A sentence is terminated notwithstanding any |
12 | | outstanding financial legal obligation. |
13 | | (2) Minor Traffic Offenses.
Orders of supervision or |
14 | | convictions for minor traffic offenses shall not affect a |
15 | | petitioner's eligibility to expunge or seal records |
16 | | pursuant to this Section. |
17 | | (2.5) Commencing 180 days after July 29, 2016 (the |
18 | | effective date of Public Act 99-697), the law enforcement |
19 | | agency issuing the citation shall automatically expunge, |
20 | | on or before January 1 and July 1 of each year, the law |
21 | | enforcement records of a person found to have committed a |
22 | | civil law violation of subsection (a) of Section 4 of the |
23 | | Cannabis Control Act or subsection (c) of Section 3.5 of |
24 | | the Drug Paraphernalia Control Act in the law enforcement |
25 | | agency's possession or control and which contains the |
26 | | final satisfactory disposition which pertain to the person |
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1 | | issued a citation for that offense.
The law enforcement |
2 | | agency shall provide by rule the process for access, |
3 | | review, and to confirm the automatic expungement by the |
4 | | law enforcement agency issuing the citation.
Commencing |
5 | | 180 days after July 29, 2016 (the effective date of Public |
6 | | Act 99-697), the clerk of the circuit court shall expunge, |
7 | | upon order of the court, or in the absence of a court order |
8 | | on or before January 1 and July 1 of each year, the court |
9 | | records of a person found in the circuit court to have |
10 | | committed a civil law violation of subsection (a) of |
11 | | Section 4 of the Cannabis Control Act or subsection (c) of |
12 | | Section 3.5 of the Drug Paraphernalia Control Act in the |
13 | | clerk's possession or control and which contains the final |
14 | | satisfactory disposition which pertain to the person |
15 | | issued a citation for any of those offenses. |
16 | | (3) Exclusions. Except as otherwise provided in |
17 | | subsections (b)(5), (b)(6), (b)(8), (e), (e-5), and (e-6) |
18 | | of this Section, the court shall not order: |
19 | | (A) the sealing or expungement of the records of |
20 | | arrests or charges not initiated by arrest that result |
21 | | in an order of supervision for or conviction of:
(i) |
22 | | any sexual offense committed against a
minor; (ii) |
23 | | Section 11-501 of the Illinois Vehicle Code or a |
24 | | similar provision of a local ordinance; or (iii) |
25 | | Section 11-503 of the Illinois Vehicle Code or a |
26 | | similar provision of a local ordinance, unless the |
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1 | | arrest or charge is for a misdemeanor violation of |
2 | | subsection (a) of Section 11-503 or a similar |
3 | | provision of a local ordinance, that occurred prior to |
4 | | the offender reaching the age of 25 years and the |
5 | | offender has no other conviction for violating Section |
6 | | 11-501 or 11-503 of the Illinois Vehicle Code or a |
7 | | similar provision of a local ordinance. |
8 | | (B) the sealing or expungement of records of minor |
9 | | traffic offenses (as defined in subsection (a)(1)(G)), |
10 | | unless the petitioner was arrested and released |
11 | | without charging. |
12 | | (C) the sealing of the records of arrests or |
13 | | charges not initiated by arrest which result in an |
14 | | order of supervision or a conviction for the following |
15 | | offenses: |
16 | | (i) offenses included in Article 11 of the |
17 | | Criminal Code of 1961 or the Criminal Code of 2012 |
18 | | or a similar provision of a local ordinance, |
19 | | except Section 11-14 and a misdemeanor violation |
20 | | of Section 11-30 of the Criminal Code of 1961 or |
21 | | the Criminal Code of 2012, or a similar provision |
22 | | of a local ordinance; |
23 | | (ii) Section 11-1.50, 12-3.4, 12-15, 12-30, |
24 | | 26-5, or 48-1 of the Criminal Code of 1961 or the |
25 | | Criminal Code of 2012, or a similar provision of a |
26 | | local ordinance; |
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1 | | (iii) Sections 12-3.1 or 12-3.2 of the |
2 | | Criminal Code of 1961 or the Criminal Code of |
3 | | 2012, or Section 125 of the Stalking No Contact |
4 | | Order Act, or Section 219 of the Civil No Contact |
5 | | Order Act, or a similar provision of a local |
6 | | ordinance; |
7 | | (iv) Class A misdemeanors or felony offenses |
8 | | under the Humane Care for Animals Act; or |
9 | | (v) any offense or attempted offense that |
10 | | would subject a person to registration under the |
11 | | Sex Offender Registration Act. |
12 | | (D) (blank). |
13 | | (b) Expungement. |
14 | | (1) A petitioner may petition the circuit court to |
15 | | expunge the
records of his or her arrests and charges not |
16 | | initiated by arrest when each arrest or charge not |
17 | | initiated by arrest
sought to be expunged resulted in:
(i) |
18 | | acquittal, dismissal, or the petitioner's release without |
19 | | charging, unless excluded by subsection (a)(3)(B);
(ii) a |
20 | | conviction which was vacated or reversed, unless excluded |
21 | | by subsection (a)(3)(B);
(iii) an order of supervision and |
22 | | such supervision was successfully completed by the |
23 | | petitioner, unless excluded by subsection (a)(3)(A) or |
24 | | (a)(3)(B); or
(iv) an order of qualified probation (as |
25 | | defined in subsection (a)(1)(J)) and such probation was |
26 | | successfully completed by the petitioner. |
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1 | | (1.5) When a petitioner seeks to have a record of |
2 | | arrest expunged under this Section, and the offender has |
3 | | been convicted of a criminal offense, the State's Attorney |
4 | | may object to the expungement on the grounds that the |
5 | | records contain specific relevant information aside from |
6 | | the mere fact of the arrest. |
7 | | (2) Time frame for filing a petition to expunge. |
8 | | (A) When the arrest or charge not initiated by |
9 | | arrest sought to be expunged resulted in an acquittal, |
10 | | dismissal, the petitioner's release without charging, |
11 | | or the reversal or vacation of a conviction, there is |
12 | | no waiting period to petition for the expungement of |
13 | | such records. |
14 | | (B) When the arrest or charge not initiated by |
15 | | arrest
sought to be expunged resulted in an order of |
16 | | supervision, successfully
completed by the petitioner, |
17 | | the following time frames will apply: |
18 | | (i) Those arrests or charges that resulted in |
19 | | orders of
supervision under Section 3-707, 3-708, |
20 | | 3-710, or 5-401.3 of the Illinois Vehicle Code or |
21 | | a similar provision of a local ordinance, or under |
22 | | Section 11-1.50, 12-3.2, or 12-15 of the Criminal |
23 | | Code of 1961 or the Criminal Code of 2012, or a |
24 | | similar provision of a local ordinance, shall not |
25 | | be eligible for expungement until 5 years have |
26 | | passed following the satisfactory termination of |
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1 | | the supervision. |
2 | | (i-5) Those arrests or charges that resulted |
3 | | in orders of supervision for a misdemeanor |
4 | | violation of subsection (a) of Section 11-503 of |
5 | | the Illinois Vehicle Code or a similar provision |
6 | | of a local ordinance, that occurred prior to the |
7 | | offender reaching the age of 25 years and the |
8 | | offender has no other conviction for violating |
9 | | Section 11-501 or 11-503 of the Illinois Vehicle |
10 | | Code or a similar provision of a local ordinance |
11 | | shall not be eligible for expungement until the |
12 | | petitioner has reached the age of 25 years. |
13 | | (ii) Those arrests or charges that resulted in |
14 | | orders
of supervision for any other offenses shall |
15 | | not be
eligible for expungement until 2 years have |
16 | | passed
following the satisfactory termination of |
17 | | the supervision. |
18 | | (C) When the arrest or charge not initiated by |
19 | | arrest sought to
be expunged resulted in an order of |
20 | | qualified probation, successfully
completed by the |
21 | | petitioner, such records shall not be eligible for
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22 | | expungement until 5 years have passed following the |
23 | | satisfactory
termination of the probation. |
24 | | (3) Those records maintained by the Department for
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25 | | persons arrested prior to their 17th birthday shall be
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26 | | expunged as provided in Section 5-915 of the Juvenile |
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1 | | Court
Act of 1987. |
2 | | (4) Whenever a person has been arrested for or |
3 | | convicted of any
offense, in the name of a person whose |
4 | | identity he or she has stolen or otherwise
come into |
5 | | possession of, the aggrieved person from whom the identity
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6 | | was stolen or otherwise obtained without authorization,
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7 | | upon learning of the person having been arrested using his
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8 | | or her identity, may, upon verified petition to the chief |
9 | | judge of
the circuit wherein the arrest was made, have a |
10 | | court order
entered nunc pro tunc by the Chief Judge to |
11 | | correct the
arrest record, conviction record, if any, and |
12 | | all official
records of the arresting authority, the |
13 | | Department, other
criminal justice agencies, the |
14 | | prosecutor, and the trial
court concerning such arrest, if |
15 | | any, by removing his or her name
from all such records in |
16 | | connection with the arrest and
conviction, if any, and by |
17 | | inserting in the records the
name of the offender, if |
18 | | known or ascertainable, in lieu of
the aggrieved's name. |
19 | | The records of the circuit court clerk shall be sealed |
20 | | until further order of
the court upon good cause shown and |
21 | | the name of the
aggrieved person obliterated on the |
22 | | official index
required to be kept by the circuit court |
23 | | clerk under
Section 16 of the Clerks of Courts Act, but the |
24 | | order shall
not affect any index issued by the circuit |
25 | | court clerk
before the entry of the order. Nothing in this |
26 | | Section
shall limit the Department of State Police or |
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1 | | other
criminal justice agencies or prosecutors from |
2 | | listing
under an offender's name the false names he or she |
3 | | has
used. |
4 | | (5) Whenever a person has been convicted of criminal
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5 | | sexual assault, aggravated criminal sexual assault,
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6 | | predatory criminal sexual assault of a child, criminal
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7 | | sexual abuse, or aggravated criminal sexual abuse, the
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8 | | victim of that offense may request that the State's
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9 | | Attorney of the county in which the conviction occurred
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10 | | file a verified petition with the presiding trial judge at
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11 | | the petitioner's trial to have a court order entered to |
12 | | seal
the records of the circuit court clerk in connection
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13 | | with the proceedings of the trial court concerning that
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14 | | offense. However, the records of the arresting authority
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15 | | and the Department of State Police concerning the offense
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16 | | shall not be sealed. The court, upon good cause shown,
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17 | | shall make the records of the circuit court clerk in
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18 | | connection with the proceedings of the trial court
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19 | | concerning the offense available for public inspection. |
20 | | (6) If a conviction has been set aside on direct |
21 | | review
or on collateral attack and the court determines by |
22 | | clear
and convincing evidence that the petitioner was |
23 | | factually
innocent of the charge, the court that finds the |
24 | | petitioner factually innocent of the charge shall enter an
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25 | | expungement order for the conviction for which the |
26 | | petitioner has been determined to be innocent as provided |
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1 | | in subsection (b) of Section
5-5-4 of the Unified Code of |
2 | | Corrections. |
3 | | (7) Nothing in this Section shall prevent the |
4 | | Department of
State Police from maintaining all records of |
5 | | any person who
is admitted to probation upon terms and |
6 | | conditions and who
fulfills those terms and conditions |
7 | | pursuant to Section 10
of the Cannabis Control Act, |
8 | | Section 410 of the Illinois
Controlled Substances Act, |
9 | | Section 70 of the
Methamphetamine Control and Community |
10 | | Protection Act,
Section 5-6-3.3 or 5-6-3.4 of the Unified |
11 | | Code of Corrections, Section 12-4.3 or subdivision (b)(1) |
12 | | of Section 12-3.05 of the Criminal Code of 1961 or the |
13 | | Criminal Code of 2012, Section 10-102
of the Illinois |
14 | | Alcoholism and Other Drug Dependency Act,
Section 40-10 of |
15 | | the Substance Use Disorder Act, or Section 10 of the |
16 | | Steroid Control Act. |
17 | | (8) If the petitioner has been granted a certificate |
18 | | of innocence under Section 2-702 of the Code of Civil |
19 | | Procedure, the court that grants the certificate of |
20 | | innocence shall also enter an order expunging the |
21 | | conviction for which the petitioner has been determined to |
22 | | be innocent as provided in subsection (h) of Section 2-702 |
23 | | of the Code of Civil Procedure. |
24 | | (c) Sealing. |
25 | | (1) Applicability. Notwithstanding any other provision |
26 | | of this Act to the contrary, and cumulative with any |
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1 | | rights to expungement of criminal records, this subsection |
2 | | authorizes the sealing of criminal records of adults and |
3 | | of minors prosecuted as adults. Subsection (g) of this |
4 | | Section provides for immediate sealing of certain records. |
5 | | (2) Eligible Records. The following records may be |
6 | | sealed: |
7 | | (A) All arrests resulting in release without |
8 | | charging; |
9 | | (B) Arrests or charges not initiated by arrest |
10 | | resulting in acquittal, dismissal, or conviction when |
11 | | the conviction was reversed or vacated, except as |
12 | | excluded by subsection (a)(3)(B); |
13 | | (C) Arrests or charges not initiated by arrest |
14 | | resulting in orders of supervision, including orders |
15 | | of supervision for municipal ordinance violations, |
16 | | successfully completed by the petitioner, unless |
17 | | excluded by subsection (a)(3); |
18 | | (D) Arrests or charges not initiated by arrest |
19 | | resulting in convictions, including convictions on |
20 | | municipal ordinance violations, unless excluded by |
21 | | subsection (a)(3); |
22 | | (E) Arrests or charges not initiated by arrest |
23 | | resulting in orders of first offender probation under |
24 | | Section 10 of the Cannabis Control Act, Section 410 of |
25 | | the Illinois Controlled Substances Act, Section 70 of |
26 | | the Methamphetamine Control and Community Protection |
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1 | | Act, or Section 5-6-3.3 of the Unified Code of |
2 | | Corrections; and |
3 | | (F) Arrests or charges not initiated by arrest |
4 | | resulting in felony convictions unless otherwise |
5 | | excluded by subsection (a) paragraph (3) of this |
6 | | Section. |
7 | | (3) When Records Are Eligible to Be Sealed. Records |
8 | | identified as eligible under subsection (c)(2) may be |
9 | | sealed as follows: |
10 | | (A) Records identified as eligible under |
11 | | subsection (c)(2)(A) and (c)(2)(B) may be sealed at |
12 | | any time. |
13 | | (B) Except as otherwise provided in subparagraph |
14 | | (E) of this paragraph (3), records identified as |
15 | | eligible under subsection (c)(2)(C) may be sealed
2 |
16 | | years after the termination of petitioner's last |
17 | | sentence (as defined in subsection (a)(1)(F)). |
18 | | (C) Except as otherwise provided in subparagraph |
19 | | (E) of this paragraph (3), records identified as |
20 | | eligible under subsections (c)(2)(D), (c)(2)(E), and |
21 | | (c)(2)(F) may be sealed 3 years after the termination |
22 | | of the petitioner's last sentence (as defined in |
23 | | subsection (a)(1)(F)). Convictions requiring public |
24 | | registration under the Arsonist Registration Act, the |
25 | | Sex Offender Registration Act, or the Murderer and |
26 | | Violent Offender Against Youth Registration Act may |
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1 | | not be sealed until the petitioner is no longer |
2 | | required to register under that relevant Act. |
3 | | (D) Records identified in subsection |
4 | | (a)(3)(A)(iii) may be sealed after the petitioner has |
5 | | reached the age of 25 years. |
6 | | (E) Records identified as eligible under |
7 | | subsections (c)(2)(C), (c)(2)(D), (c)(2)(E), or |
8 | | (c)(2)(F) may be sealed upon termination of the |
9 | | petitioner's last sentence if the petitioner earned a |
10 | | high school diploma, associate's degree, career |
11 | | certificate, vocational technical certification, or |
12 | | bachelor's degree, or passed the high school level |
13 | | Test of General Educational Development, during the |
14 | | period of his or her sentence or mandatory supervised |
15 | | release. This subparagraph shall apply only to a |
16 | | petitioner who has not completed the same educational |
17 | | goal prior to the period of his or her sentence or |
18 | | mandatory supervised release. If a petition for |
19 | | sealing eligible records filed under this subparagraph |
20 | | is denied by the court, the time periods under |
21 | | subparagraph (B) or (C) shall apply to any subsequent |
22 | | petition for sealing filed by the petitioner. |
23 | | (4) Subsequent felony convictions. A person may not |
24 | | have
subsequent felony conviction records sealed as |
25 | | provided in this subsection
(c) if he or she is convicted |
26 | | of any felony offense after the date of the
sealing of |
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1 | | prior felony convictions as provided in this subsection |
2 | | (c). The court may, upon conviction for a subsequent |
3 | | felony offense, order the unsealing of prior felony |
4 | | conviction records previously ordered sealed by the court. |
5 | | (5) Notice of eligibility for sealing. Upon entry of a |
6 | | disposition for an eligible record under this subsection |
7 | | (c), the petitioner shall be informed by the court of the |
8 | | right to have the records sealed and the procedures for |
9 | | the sealing of the records. |
10 | | (d) Procedure. The following procedures apply to |
11 | | expungement under subsections (b), (e), and (e-6) and sealing |
12 | | under subsections (c) and (e-5): |
13 | | (1) Filing the petition. Upon becoming eligible to |
14 | | petition for
the expungement or sealing of records under |
15 | | this Section, the petitioner shall file a petition |
16 | | requesting the expungement
or sealing of records with the |
17 | | clerk of the court where the arrests occurred or the |
18 | | charges were brought, or both. If arrests occurred or |
19 | | charges were brought in multiple jurisdictions, a petition |
20 | | must be filed in each such jurisdiction. The petitioner |
21 | | shall pay the applicable fee, except no fee shall be |
22 | | required if the petitioner has obtained a court order |
23 | | waiving fees under Supreme Court Rule 298 or it is |
24 | | otherwise waived. |
25 | | (1.5) County fee waiver pilot program.
From August 9, |
26 | | 2019 (the effective date of Public Act 101-306) through |
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1 | | December 31, 2020, in a county of 3,000,000 or more |
2 | | inhabitants, no fee shall be required to be paid by a |
3 | | petitioner if the records sought to be expunged or sealed |
4 | | were arrests resulting in release without charging or |
5 | | arrests or charges not initiated by arrest resulting in |
6 | | acquittal, dismissal, or conviction when the conviction |
7 | | was reversed or vacated, unless excluded by subsection |
8 | | (a)(3)(B). The provisions of this paragraph (1.5), other |
9 | | than this sentence, are inoperative on and after January |
10 | | 1, 2022. |
11 | | (2) Contents of petition. The petition shall be
|
12 | | verified and shall contain the petitioner's name, date of
|
13 | | birth, current address and, for each arrest or charge not |
14 | | initiated by
arrest sought to be sealed or expunged, the |
15 | | case number, the date of
arrest (if any), the identity of |
16 | | the arresting authority, and such
other information as the |
17 | | court may require. During the pendency
of the proceeding, |
18 | | the petitioner shall promptly notify the
circuit court |
19 | | clerk of any change of his or her address. If the |
20 | | petitioner has received a certificate of eligibility for |
21 | | sealing from the Prisoner Review Board under paragraph |
22 | | (10) of subsection (a) of Section 3-3-2 of the Unified |
23 | | Code of Corrections, the certificate shall be attached to |
24 | | the petition. |
25 | | (3) Drug test. The petitioner must attach to the |
26 | | petition proof that the petitioner has passed a test taken |
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1 | | within 30 days before the filing of the petition showing |
2 | | the absence within his or her body of all illegal |
3 | | substances as defined by the Illinois Controlled |
4 | | Substances Act, the Methamphetamine Control and Community |
5 | | Protection Act, and the Cannabis Control Act if he or she |
6 | | is petitioning to: |
7 | | (A) seal felony records under clause (c)(2)(E); |
8 | | (B) seal felony records for a violation of the |
9 | | Illinois Controlled Substances Act, the |
10 | | Methamphetamine Control and Community Protection Act, |
11 | | or the Cannabis Control Act under clause (c)(2)(F); |
12 | | (C) seal felony records under subsection (e-5); or |
13 | | (D) expunge felony records of a qualified |
14 | | probation under clause (b)(1)(iv). |
15 | | (4) Service of petition. The circuit court clerk shall |
16 | | promptly
serve a copy of the petition and documentation to |
17 | | support the petition under subsection (e-5) or (e-6) on |
18 | | the State's Attorney or
prosecutor charged with the duty |
19 | | of prosecuting the
offense, the Department of State |
20 | | Police, the arresting
agency and the chief legal officer |
21 | | of the unit of local
government effecting the arrest. |
22 | | (5) Objections. |
23 | | (A) Any party entitled to notice of the petition |
24 | | may file an objection to the petition. All objections |
25 | | shall be in writing, shall be filed with the circuit |
26 | | court clerk, and shall state with specificity the |
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1 | | basis of the objection. Whenever a person who has been |
2 | | convicted of an offense is granted
a pardon by the |
3 | | Governor which specifically authorizes expungement, an |
4 | | objection to the petition may not be filed. |
5 | | (B) Objections to a petition to expunge or seal |
6 | | must be filed within 60 days of the date of service of |
7 | | the petition. |
8 | | (6) Entry of order. |
9 | | (A) The Chief Judge of the circuit wherein the |
10 | | charge was brought, any judge of that circuit |
11 | | designated by the Chief Judge, or in counties of less |
12 | | than 3,000,000 inhabitants, the presiding trial judge |
13 | | at the petitioner's trial, if any, shall rule on the |
14 | | petition to expunge or seal as set forth in this |
15 | | subsection (d)(6). |
16 | | (B) Unless the State's Attorney or prosecutor, the |
17 | | Department of
State Police, the arresting agency, or |
18 | | the chief legal officer
files an objection to the |
19 | | petition to expunge or seal within 60 days from the |
20 | | date of service of the petition, the court shall enter |
21 | | an order granting or denying the petition. |
22 | | (C) Notwithstanding any other provision of law, |
23 | | the court shall not deny a petition for sealing under |
24 | | this Section because the petitioner has not satisfied |
25 | | an outstanding legal financial obligation established, |
26 | | imposed, or originated by a court, law enforcement |
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1 | | agency, or a municipal, State, county, or other unit |
2 | | of local government, including, but not limited to, |
3 | | any cost, assessment, fine, or fee. An outstanding |
4 | | legal financial obligation does not include any court |
5 | | ordered restitution to a victim under Section 5-5-6 of |
6 | | the Unified Code of Corrections, unless the |
7 | | restitution has been converted to a civil judgment. |
8 | | Nothing in this subparagraph (C) waives, rescinds, or |
9 | | abrogates a legal financial obligation or otherwise |
10 | | eliminates or affects the right of the holder of any |
11 | | financial obligation to pursue collection under |
12 | | applicable federal, State, or local law. |
13 | | (7) Hearings. If an objection is filed, the court |
14 | | shall set a date for a hearing and notify the petitioner |
15 | | and all parties entitled to notice of the petition of the |
16 | | hearing date at least 30 days prior to the hearing. Prior |
17 | | to the hearing, the State's Attorney shall consult with |
18 | | the Department as to the appropriateness of the relief |
19 | | sought in the petition to expunge or seal. At the hearing, |
20 | | the court shall hear evidence on whether the petition |
21 | | should or should not be granted, and shall grant or deny |
22 | | the petition to expunge or seal the records based on the |
23 | | evidence presented at the hearing. The court may consider |
24 | | the following: |
25 | | (A) the strength of the evidence supporting the |
26 | | defendant's conviction; |
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1 | | (B) the reasons for retention of the conviction |
2 | | records by the State; |
3 | | (C) the petitioner's age, criminal record history, |
4 | | and employment history; |
5 | | (D) the period of time between the petitioner's |
6 | | arrest on the charge resulting in the conviction and |
7 | | the filing of the petition under this Section; and |
8 | | (E) the specific adverse consequences the |
9 | | petitioner may be subject to if the petition is |
10 | | denied. |
11 | | (8) Service of order. After entering an order to |
12 | | expunge or
seal records, the court must provide copies of |
13 | | the order to the
Department, in a form and manner |
14 | | prescribed by the Department,
to the petitioner, to the |
15 | | State's Attorney or prosecutor
charged with the duty of |
16 | | prosecuting the offense, to the
arresting agency, to the |
17 | | chief legal officer of the unit of
local government |
18 | | effecting the arrest, and to such other
criminal justice |
19 | | agencies as may be ordered by the court. |
20 | | (9) Implementation of order. |
21 | | (A) Upon entry of an order to expunge records |
22 | | pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: |
23 | | (i) the records shall be expunged (as defined |
24 | | in subsection (a)(1)(E)) by the arresting agency, |
25 | | the Department, and any other agency as ordered by |
26 | | the court, within 60 days of the date of service of |
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1 | | the order, unless a motion to vacate, modify, or |
2 | | reconsider the order is filed pursuant to |
3 | | paragraph (12) of subsection (d) of this Section; |
4 | | (ii) the records of the circuit court clerk |
5 | | shall be impounded until further order of the |
6 | | court upon good cause shown and the name of the |
7 | | petitioner obliterated on the official index |
8 | | required to be kept by the circuit court clerk |
9 | | under Section 16 of the Clerks of Courts Act, but |
10 | | the order shall not affect any index issued by the |
11 | | circuit court clerk before the entry of the order; |
12 | | and |
13 | | (iii) in response to an inquiry for expunged |
14 | | records, the court, the Department, or the agency |
15 | | receiving such inquiry, shall reply as it does in |
16 | | response to inquiries when no records ever |
17 | | existed. |
18 | | (B) Upon entry of an order to expunge records |
19 | | pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: |
20 | | (i) the records shall be expunged (as defined |
21 | | in subsection (a)(1)(E)) by the arresting agency |
22 | | and any other agency as ordered by the court, |
23 | | within 60 days of the date of service of the order, |
24 | | unless a motion to vacate, modify, or reconsider |
25 | | the order is filed pursuant to paragraph (12) of |
26 | | subsection (d) of this Section; |
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1 | | (ii) the records of the circuit court clerk |
2 | | shall be impounded until further order of the |
3 | | court upon good cause shown and the name of the |
4 | | petitioner obliterated on the official index |
5 | | required to be kept by the circuit court clerk |
6 | | under Section 16 of the Clerks of Courts Act, but |
7 | | the order shall not affect any index issued by the |
8 | | circuit court clerk before the entry of the order; |
9 | | (iii) the records shall be impounded by the
|
10 | | Department within 60 days of the date of service |
11 | | of the order as ordered by the court, unless a |
12 | | motion to vacate, modify, or reconsider the order |
13 | | is filed pursuant to paragraph (12) of subsection |
14 | | (d) of this Section; |
15 | | (iv) records impounded by the Department may |
16 | | be disseminated by the Department only as required |
17 | | by law or to the arresting authority, the State's |
18 | | Attorney, and the court upon a later arrest for |
19 | | the same or a similar offense or for the purpose of |
20 | | sentencing for any subsequent felony, and to the |
21 | | Department of Corrections upon conviction for any |
22 | | offense; and |
23 | | (v) in response to an inquiry for such records |
24 | | from anyone not authorized by law to access such |
25 | | records, the court, the Department, or the agency |
26 | | receiving such inquiry shall reply as it does in |
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1 | | response to inquiries when no records ever |
2 | | existed. |
3 | | (B-5) Upon entry of an order to expunge records |
4 | | under subsection (e-6): |
5 | | (i) the records shall be expunged (as defined |
6 | | in subsection (a)(1)(E)) by the arresting agency |
7 | | and any other agency as ordered by the court, |
8 | | within 60 days of the date of service of the order, |
9 | | unless a motion to vacate, modify, or reconsider |
10 | | the order is filed under paragraph (12) of |
11 | | subsection (d) of this Section; |
12 | | (ii) the records of the circuit court clerk |
13 | | shall be impounded until further order of the |
14 | | court upon good cause shown and the name of the |
15 | | petitioner obliterated on the official index |
16 | | required to be kept by the circuit court clerk |
17 | | under Section 16 of the Clerks of Courts Act, but |
18 | | the order shall not affect any index issued by the |
19 | | circuit court clerk before the entry of the order; |
20 | | (iii) the records shall be impounded by the
|
21 | | Department within 60 days of the date of service |
22 | | of the order as ordered by the court, unless a |
23 | | motion to vacate, modify, or reconsider the order |
24 | | is filed under paragraph (12) of subsection (d) of |
25 | | this Section; |
26 | | (iv) records impounded by the Department may |
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1 | | be disseminated by the Department only as required |
2 | | by law or to the arresting authority, the State's |
3 | | Attorney, and the court upon a later arrest for |
4 | | the same or a similar offense or for the purpose of |
5 | | sentencing for any subsequent felony, and to the |
6 | | Department of Corrections upon conviction for any |
7 | | offense; and |
8 | | (v) in response to an inquiry for these |
9 | | records from anyone not authorized by law to |
10 | | access the records, the court, the Department, or |
11 | | the agency receiving the inquiry shall reply as it |
12 | | does in response to inquiries when no records ever |
13 | | existed. |
14 | | (C) Upon entry of an order to seal records under |
15 | | subsection
(c), the arresting agency, any other agency |
16 | | as ordered by the court, the Department, and the court |
17 | | shall seal the records (as defined in subsection |
18 | | (a)(1)(K)). In response to an inquiry for such |
19 | | records, from anyone not authorized by law to access |
20 | | such records, the court, the Department, or the agency |
21 | | receiving such inquiry shall reply as it does in |
22 | | response to inquiries when no records ever existed. |
23 | | (D) The Department shall send written notice to |
24 | | the petitioner of its compliance with each order to |
25 | | expunge or seal records within 60 days of the date of |
26 | | service of that order or, if a motion to vacate, |
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1 | | modify, or reconsider is filed, within 60 days of |
2 | | service of the order resolving the motion, if that |
3 | | order requires the Department to expunge or seal |
4 | | records. In the event of an appeal from the circuit |
5 | | court order, the Department shall send written notice |
6 | | to the petitioner of its compliance with an Appellate |
7 | | Court or Supreme Court judgment to expunge or seal |
8 | | records within 60 days of the issuance of the court's |
9 | | mandate. The notice is not required while any motion |
10 | | to vacate, modify, or reconsider, or any appeal or |
11 | | petition for discretionary appellate review, is |
12 | | pending. |
13 | | (E) Upon motion, the court may order that a sealed |
14 | | judgment or other court record necessary to |
15 | | demonstrate the amount of any legal financial |
16 | | obligation due and owing be made available for the |
17 | | limited purpose of collecting any legal financial |
18 | | obligations owed by the petitioner that were |
19 | | established, imposed, or originated in the criminal |
20 | | proceeding for which those records have been sealed. |
21 | | The records made available under this subparagraph (E) |
22 | | shall not be entered into the official index required |
23 | | to be kept by the circuit court clerk under Section 16 |
24 | | of the Clerks of Courts Act and shall be immediately |
25 | | re-impounded upon the collection of the outstanding |
26 | | financial obligations. |
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1 | | (F) Notwithstanding any other provision of this |
2 | | Section, a circuit court clerk may access a sealed |
3 | | record for the limited purpose of collecting payment |
4 | | for any legal financial obligations that were |
5 | | established, imposed, or originated in the criminal |
6 | | proceedings for which those records have been sealed. |
7 | | (10) Fees. The Department may charge the petitioner a |
8 | | fee equivalent to the cost of processing any order to |
9 | | expunge or seal records. Notwithstanding any provision of |
10 | | the Clerks of Courts Act to the contrary, the circuit |
11 | | court clerk may charge a fee equivalent to the cost |
12 | | associated with the sealing or expungement of records by |
13 | | the circuit court clerk. From the total filing fee |
14 | | collected for the petition to seal or expunge, the circuit |
15 | | court clerk shall deposit $10 into the Circuit Court Clerk |
16 | | Operation and Administrative Fund, to be used to offset |
17 | | the costs incurred by the circuit court clerk in |
18 | | performing the additional duties required to serve the |
19 | | petition to seal or expunge on all parties. The circuit |
20 | | court clerk shall collect and forward the Department of |
21 | | State Police portion of the fee to the Department and it |
22 | | shall be deposited in the State Police Services Fund. If |
23 | | the record brought under an expungement petition was |
24 | | previously sealed under this Section, the fee for the |
25 | | expungement petition for that same record shall be waived. |
26 | | (11) Final Order. No court order issued under the |
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1 | | expungement or sealing provisions of this Section shall |
2 | | become final for purposes of appeal until 30 days after |
3 | | service of the order on the petitioner and all parties |
4 | | entitled to notice of the petition. |
5 | | (12) Motion to Vacate, Modify, or Reconsider. Under |
6 | | Section 2-1203 of the Code of Civil Procedure, the |
7 | | petitioner or any party entitled to notice may file a |
8 | | motion to vacate, modify, or reconsider the order granting |
9 | | or denying the petition to expunge or seal within 60 days |
10 | | of service of the order. If filed more than 60 days after |
11 | | service of the order, a petition to vacate, modify, or |
12 | | reconsider shall comply with subsection (c) of Section |
13 | | 2-1401 of the Code of Civil Procedure. Upon filing of a |
14 | | motion to vacate, modify, or reconsider, notice of the |
15 | | motion shall be served upon the petitioner and all parties |
16 | | entitled to notice of the petition. |
17 | | (13) Effect of Order. An order granting a petition |
18 | | under the expungement or sealing provisions of this |
19 | | Section shall not be considered void because it fails to |
20 | | comply with the provisions of this Section or because of |
21 | | any error asserted in a motion to vacate, modify, or |
22 | | reconsider. The circuit court retains jurisdiction to |
23 | | determine whether the order is voidable and to vacate, |
24 | | modify, or reconsider its terms based on a motion filed |
25 | | under paragraph (12) of this subsection (d). |
26 | | (14) Compliance with Order Granting Petition to Seal |
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1 | | Records. Unless a court has entered a stay of an order |
2 | | granting a petition to seal, all parties entitled to |
3 | | notice of the petition must fully comply with the terms of |
4 | | the order within 60 days of service of the order even if a |
5 | | party is seeking relief from the order through a motion |
6 | | filed under paragraph (12) of this subsection (d) or is |
7 | | appealing the order. |
8 | | (15) Compliance with Order Granting Petition to |
9 | | Expunge Records. While a party is seeking relief from the |
10 | | order granting the petition to expunge through a motion |
11 | | filed under paragraph (12) of this subsection (d) or is |
12 | | appealing the order, and unless a court has entered a stay |
13 | | of that order, the parties entitled to notice of the |
14 | | petition must seal, but need not expunge, the records |
15 | | until there is a final order on the motion for relief or, |
16 | | in the case of an appeal, the issuance of that court's |
17 | | mandate. |
18 | | (16) The changes to this subsection (d) made by Public |
19 | | Act 98-163 apply to all petitions pending on August 5, |
20 | | 2013 (the effective date of Public Act 98-163) and to all |
21 | | orders ruling on a petition to expunge or seal on or after |
22 | | August 5, 2013 (the effective date of Public Act 98-163). |
23 | | (e) Whenever a person who has been convicted of an offense |
24 | | is granted
a pardon by the Governor which specifically |
25 | | authorizes expungement, he or she may,
upon verified petition |
26 | | to the Chief Judge of the circuit where the person had
been |
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1 | | convicted, any judge of the circuit designated by the Chief |
2 | | Judge, or in
counties of less than 3,000,000 inhabitants, the |
3 | | presiding trial judge at the
defendant's trial, have a court |
4 | | order entered expunging the record of
arrest from the official |
5 | | records of the arresting authority and order that the
records |
6 | | of the circuit court clerk and the Department be sealed until
|
7 | | further order of the court upon good cause shown or as |
8 | | otherwise provided
herein, and the name of the defendant |
9 | | obliterated from the official index
requested to be kept by |
10 | | the circuit court clerk under Section 16 of the Clerks
of |
11 | | Courts Act in connection with the arrest and conviction for |
12 | | the offense for
which he or she had been pardoned but the order |
13 | | shall not affect any index issued by
the circuit court clerk |
14 | | before the entry of the order. All records sealed by
the |
15 | | Department may be disseminated by the Department only to the |
16 | | arresting authority, the State's Attorney, and the court upon |
17 | | a later
arrest for the same or similar offense or for the |
18 | | purpose of sentencing for any
subsequent felony. Upon |
19 | | conviction for any subsequent offense, the Department
of |
20 | | Corrections shall have access to all sealed records of the |
21 | | Department
pertaining to that individual. Upon entry of the |
22 | | order of expungement, the
circuit court clerk shall promptly |
23 | | mail a copy of the order to the
person who was pardoned. |
24 | | (e-5) Whenever a person who has been convicted of an |
25 | | offense is granted a certificate of eligibility for sealing by |
26 | | the Prisoner Review Board which specifically authorizes |
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1 | | sealing, he or she may, upon verified petition to the Chief |
2 | | Judge of the circuit where the person had been convicted, any |
3 | | judge of the circuit designated by the Chief Judge, or in |
4 | | counties of less than 3,000,000 inhabitants, the presiding |
5 | | trial judge at the petitioner's trial, have a court order |
6 | | entered sealing the record of arrest from the official records |
7 | | of the arresting authority and order that the records of the |
8 | | circuit court clerk and the Department be sealed until further |
9 | | order of the court upon good cause shown or as otherwise |
10 | | provided herein, and the name of the petitioner obliterated |
11 | | from the official index requested to be kept by the circuit |
12 | | court clerk under Section 16 of the Clerks of Courts Act in |
13 | | connection with the arrest and conviction for the offense for |
14 | | which he or she had been granted the certificate but the order |
15 | | shall not affect any index issued by the circuit court clerk |
16 | | before the entry of the order. All records sealed by the |
17 | | Department may be disseminated by the Department only as |
18 | | required by this Act or to the arresting authority, a law |
19 | | enforcement agency, the State's Attorney, and the court upon a |
20 | | later arrest for the same or similar offense or for the purpose |
21 | | of sentencing for any subsequent felony. Upon conviction for |
22 | | any subsequent offense, the Department of Corrections shall |
23 | | have access to all sealed records of the Department pertaining |
24 | | to that individual. Upon entry of the order of sealing, the |
25 | | circuit court clerk shall promptly mail a copy of the order to |
26 | | the person who was granted the certificate of eligibility for |
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1 | | sealing. |
2 | | (e-6) Whenever a person who has been convicted of an |
3 | | offense is granted a certificate of eligibility for |
4 | | expungement by the Prisoner Review Board which specifically |
5 | | authorizes expungement, he or she may, upon verified petition |
6 | | to the Chief Judge of the circuit where the person had been |
7 | | convicted, any judge of the circuit designated by the Chief |
8 | | Judge, or in counties of less than 3,000,000 inhabitants, the |
9 | | presiding trial judge at the petitioner's trial, have a court |
10 | | order entered expunging the record of arrest from the official |
11 | | records of the arresting authority and order that the records |
12 | | of the circuit court clerk and the Department be sealed until |
13 | | further order of the court upon good cause shown or as |
14 | | otherwise provided herein, and the name of the petitioner |
15 | | obliterated from the official index requested to be kept by |
16 | | the circuit court clerk under Section 16 of the Clerks of |
17 | | Courts Act in connection with the arrest and conviction for |
18 | | the offense for which he or she had been granted the |
19 | | certificate but the order shall not affect any index issued by |
20 | | the circuit court clerk before the entry of the order. All |
21 | | records sealed by the Department may be disseminated by the |
22 | | Department only as required by this Act or to the arresting |
23 | | authority, a law enforcement agency, the State's Attorney, and |
24 | | the court upon a later arrest for the same or similar offense |
25 | | or for the purpose of sentencing for any subsequent felony. |
26 | | Upon conviction for any subsequent offense, the Department of |
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1 | | Corrections shall have access to all expunged records of the |
2 | | Department pertaining to that individual. Upon entry of the |
3 | | order of expungement, the circuit court clerk shall promptly |
4 | | mail a copy of the order to the person who was granted the |
5 | | certificate of eligibility for expungement. |
6 | | (f) Subject to available funding, the Illinois Department
|
7 | | of Corrections shall conduct a study of the impact of sealing,
|
8 | | especially on employment and recidivism rates, utilizing a
|
9 | | random sample of those who apply for the sealing of their
|
10 | | criminal records under Public Act 93-211. At the request of |
11 | | the
Illinois Department of Corrections, records of the |
12 | | Illinois
Department of Employment Security shall be utilized |
13 | | as
appropriate to assist in the study. The study shall not
|
14 | | disclose any data in a manner that would allow the
|
15 | | identification of any particular individual or employing unit.
|
16 | | The study shall be made available to the General Assembly no
|
17 | | later than September 1, 2010.
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18 | | (g) Immediate Sealing. |
19 | | (1) Applicability. Notwithstanding any other provision |
20 | | of this Act to the contrary, and cumulative with any |
21 | | rights to expungement or sealing of criminal records, this |
22 | | subsection authorizes the immediate sealing of criminal |
23 | | records of adults and of minors prosecuted as adults. |
24 | | (2) Eligible Records. Arrests or charges not initiated |
25 | | by arrest resulting in acquittal or dismissal with |
26 | | prejudice, except as excluded by subsection (a)(3)(B), |
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1 | | that occur on or after January 1, 2018 (the effective date |
2 | | of Public Act 100-282), may be sealed immediately if the |
3 | | petition is filed with the circuit court clerk on the same |
4 | | day and during the same hearing in which the case is |
5 | | disposed. |
6 | | (3) When Records are Eligible to be Immediately |
7 | | Sealed. Eligible records under paragraph (2) of this |
8 | | subsection (g) may be sealed immediately after entry of |
9 | | the final disposition of a case, notwithstanding the |
10 | | disposition of other charges in the same case. |
11 | | (4) Notice of Eligibility for Immediate Sealing. Upon |
12 | | entry of a disposition for an eligible record under this |
13 | | subsection (g), the defendant shall be informed by the |
14 | | court of his or her right to have eligible records |
15 | | immediately sealed and the procedure for the immediate |
16 | | sealing of these records. |
17 | | (5) Procedure. The following procedures apply to |
18 | | immediate sealing under this subsection (g). |
19 | | (A) Filing the Petition. Upon entry of the final |
20 | | disposition of the case, the defendant's attorney may |
21 | | immediately petition the court, on behalf of the |
22 | | defendant, for immediate sealing of eligible records |
23 | | under paragraph (2) of this subsection (g) that are |
24 | | entered on or after January 1, 2018 (the effective |
25 | | date of Public Act 100-282). The immediate sealing |
26 | | petition may be filed with the circuit court clerk |
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1 | | during the hearing in which the final disposition of |
2 | | the case is entered. If the defendant's attorney does |
3 | | not file the petition for immediate sealing during the |
4 | | hearing, the defendant may file a petition for sealing |
5 | | at any time as authorized under subsection (c)(3)(A). |
6 | | (B) Contents of Petition. The immediate sealing |
7 | | petition shall be verified and shall contain the |
8 | | petitioner's name, date of birth, current address, and |
9 | | for each eligible record, the case number, the date of |
10 | | arrest if applicable, the identity of the arresting |
11 | | authority if applicable, and other information as the |
12 | | court may require. |
13 | | (C) Drug Test. The petitioner shall not be |
14 | | required to attach proof that he or she has passed a |
15 | | drug test. |
16 | | (D) Service of Petition. A copy of the petition |
17 | | shall be served on the State's Attorney in open court. |
18 | | The petitioner shall not be required to serve a copy of |
19 | | the petition on any other agency. |
20 | | (E) Entry of Order. The presiding trial judge |
21 | | shall enter an order granting or denying the petition |
22 | | for immediate sealing during the hearing in which it |
23 | | is filed. Petitions for immediate sealing shall be |
24 | | ruled on in the same hearing in which the final |
25 | | disposition of the case is entered. |
26 | | (F) Hearings. The court shall hear the petition |
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1 | | for immediate sealing on the same day and during the |
2 | | same hearing in which the disposition is rendered. |
3 | | (G) Service of Order. An order to immediately seal |
4 | | eligible records shall be served in conformance with |
5 | | subsection (d)(8). |
6 | | (H) Implementation of Order. An order to |
7 | | immediately seal records shall be implemented in |
8 | | conformance with subsections (d)(9)(C) and (d)(9)(D). |
9 | | (I) Fees. The fee imposed by the circuit court |
10 | | clerk and the Department of State Police shall comply |
11 | | with paragraph (1) of subsection (d) of this Section. |
12 | | (J) Final Order. No court order issued under this |
13 | | subsection (g) shall become final for purposes of |
14 | | appeal until 30 days after service of the order on the |
15 | | petitioner and all parties entitled to service of the |
16 | | order in conformance with subsection (d)(8). |
17 | | (K) Motion to Vacate, Modify, or Reconsider. Under |
18 | | Section 2-1203 of the Code of Civil Procedure, the |
19 | | petitioner, State's Attorney, or the Department of |
20 | | State Police may file a motion to vacate, modify, or |
21 | | reconsider the order denying the petition to |
22 | | immediately seal within 60 days of service of the |
23 | | order. If filed more than 60 days after service of the |
24 | | order, a petition to vacate, modify, or reconsider |
25 | | shall comply with subsection (c) of Section 2-1401 of |
26 | | the Code of Civil Procedure. |
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1 | | (L) Effect of Order. An order granting an |
2 | | immediate sealing petition shall not be considered |
3 | | void because it fails to comply with the provisions of |
4 | | this Section or because of an error asserted in a |
5 | | motion to vacate, modify, or reconsider. The circuit |
6 | | court retains jurisdiction to determine whether the |
7 | | order is voidable, and to vacate, modify, or |
8 | | reconsider its terms based on a motion filed under |
9 | | subparagraph (L) of this subsection (g). |
10 | | (M) Compliance with Order Granting Petition to |
11 | | Seal Records. Unless a court has entered a stay of an |
12 | | order granting a petition to immediately seal, all |
13 | | parties entitled to service of the order must fully |
14 | | comply with the terms of the order within 60 days of |
15 | | service of the order. |
16 | | (h) Sealing; trafficking victims. |
17 | | (1) A trafficking victim as defined by paragraph (10) |
18 | | of subsection (a) of Section 10-9 of the Criminal Code of |
19 | | 2012 shall be eligible to petition for immediate sealing |
20 | | of his or her criminal record upon the completion of his or |
21 | | her last sentence if his or her participation in the |
22 | | underlying offense was a direct result of human |
23 | | trafficking under Section 10-9 of the Criminal Code of |
24 | | 2012 or a severe form of trafficking under the federal |
25 | | Trafficking Victims Protection Act. |
26 | | (2) A petitioner under this subsection (h), in |
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1 | | addition to the requirements provided under paragraph (4) |
2 | | of subsection (d) of this Section, shall include in his or |
3 | | her petition a clear and concise statement that: (A) he or |
4 | | she was a victim of human trafficking at the time of the |
5 | | offense; and (B) that his or her participation in the |
6 | | offense was a direct result of human trafficking under |
7 | | Section 10-9 of the Criminal Code of 2012 or a severe form |
8 | | of trafficking under the federal Trafficking Victims |
9 | | Protection Act. |
10 | | (3) If an objection is filed alleging that the |
11 | | petitioner is not entitled to immediate sealing under this |
12 | | subsection (h), the court shall conduct a hearing under |
13 | | paragraph (7) of subsection (d) of this Section and the |
14 | | court shall determine whether the petitioner is entitled |
15 | | to immediate sealing under this subsection (h). A |
16 | | petitioner is eligible for immediate relief under this |
17 | | subsection (h) if he or she shows, by a preponderance of |
18 | | the evidence, that: (A) he or she was a victim of human |
19 | | trafficking at the time of the offense; and (B) that his or |
20 | | her participation in the offense was a direct result of |
21 | | human trafficking under Section 10-9 of the Criminal Code |
22 | | of 2012 or a severe form of trafficking under the federal |
23 | | Trafficking Victims Protection Act. |
24 | | (i) Minor Cannabis Offenses under the Cannabis Control |
25 | | Act. |
26 | | (1) Expungement of Arrest Records of Minor Cannabis |
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1 | | Offenses. |
2 | | (A) The Department of State Police and all law |
3 | | enforcement agencies within the State shall |
4 | | automatically expunge all criminal history records of |
5 | | an arrest, charge not initiated by arrest, order of |
6 | | supervision, or order of qualified probation for a |
7 | | Minor Cannabis Offense committed prior to June 25, |
8 | | 2019 (the effective date of Public Act 101-27) if: |
9 | | (i) One year or more has elapsed since the |
10 | | date of the arrest or law enforcement interaction |
11 | | documented in the records; and |
12 | | (ii) No criminal charges were filed relating |
13 | | to the arrest or law enforcement interaction or |
14 | | criminal charges were filed and subsequently |
15 | | dismissed or vacated or the arrestee was |
16 | | acquitted. |
17 | | (B) If the law enforcement agency is unable to |
18 | | verify satisfaction of condition (ii) in paragraph |
19 | | (A), records that satisfy condition (i) in paragraph |
20 | | (A) shall be automatically expunged. |
21 | | (C) Records shall be expunged by the law |
22 | | enforcement agency under the following timelines: |
23 | | (i) Records created prior to June 25, 2019 |
24 | | (the effective date of Public Act 101-27), but on |
25 | | or after January 1, 2013, shall be automatically |
26 | | expunged prior to January 1, 2021; |
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1 | | (ii) Records created prior to January 1, 2013, |
2 | | but on or after January 1, 2000, shall be |
3 | | automatically expunged prior to January 1, 2023; |
4 | | (iii) Records created prior to January 1, 2000 |
5 | | shall be automatically expunged prior to January |
6 | | 1, 2025. |
7 | | In response to an inquiry for expunged records, |
8 | | the law enforcement agency receiving such inquiry |
9 | | shall reply as it does in response to inquiries when no |
10 | | records ever existed; however, it shall provide a |
11 | | certificate of disposition or confirmation that the |
12 | | record was expunged to the individual whose record was |
13 | | expunged if such a record exists. |
14 | | (D) Nothing in this Section shall be construed to |
15 | | restrict or modify an individual's right to have that |
16 | | individual's records expunged except as otherwise may |
17 | | be provided in this Act, or diminish or abrogate any |
18 | | rights or remedies otherwise available to the |
19 | | individual. |
20 | | (2) Pardons Authorizing Expungement of Minor Cannabis |
21 | | Offenses. |
22 | | (A) Upon June 25, 2019 (the effective date of |
23 | | Public Act 101-27), the Department of State Police |
24 | | shall review all criminal history record information |
25 | | and identify all records that meet all of the |
26 | | following criteria: |
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1 | | (i) one or more convictions for a Minor |
2 | | Cannabis Offense; |
3 | | (ii) the conviction identified in paragraph |
4 | | (2)(A)(i) did not include a penalty enhancement |
5 | | under Section 7 of the Cannabis Control Act; and |
6 | | (iii) the conviction identified in paragraph |
7 | | (2)(A)(i) is not associated with a conviction for |
8 | | a violent crime as defined in subsection (c) of |
9 | | Section 3 of the Rights of Crime Victims and |
10 | | Witnesses Act. |
11 | | (B) Within 180 days after June 25, 2019 (the |
12 | | effective date of Public Act 101-27), the Department |
13 | | of State Police shall notify the Prisoner Review Board |
14 | | of all such records that meet the criteria established |
15 | | in paragraph (2)(A). |
16 | | (i) The Prisoner Review Board shall notify the |
17 | | State's Attorney of the county of conviction of |
18 | | each record identified by State Police in |
19 | | paragraph (2)(A) that is classified as a Class 4 |
20 | | felony. The State's Attorney may provide a written |
21 | | objection to the Prisoner Review Board on the sole |
22 | | basis that the record identified does not meet the |
23 | | criteria established in paragraph (2)(A). Such an |
24 | | objection must be filed within 60 days or by such |
25 | | later date set by the Prisoner Review Board in the |
26 | | notice after the State's Attorney received notice |
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1 | | from the Prisoner Review Board. |
2 | | (ii) In response to a written objection from a |
3 | | State's Attorney, the Prisoner Review Board is |
4 | | authorized to conduct a non-public hearing to |
5 | | evaluate the information provided in the |
6 | | objection. |
7 | | (iii) The Prisoner Review Board shall make a |
8 | | confidential and privileged recommendation to the |
9 | | Governor as to whether to grant a pardon |
10 | | authorizing expungement for each of the records |
11 | | identified by the Department of State Police as |
12 | | described in paragraph (2)(A). |
13 | | (C) If an individual has been granted a pardon |
14 | | authorizing expungement as described in this Section, |
15 | | the Prisoner Review Board, through the Attorney |
16 | | General, shall file a petition for expungement with |
17 | | the Chief Judge of the circuit or any judge of the |
18 | | circuit designated by the Chief Judge where the |
19 | | individual had been convicted. Such petition may |
20 | | include more than one individual. Whenever an |
21 | | individual who has been convicted of an offense is |
22 | | granted a pardon by the Governor that specifically |
23 | | authorizes expungement, an objection to the petition |
24 | | may not be filed. Petitions to expunge under this |
25 | | subsection (i) may include more than one individual. |
26 | | Within 90 days of the filing of such a petition, the |
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1 | | court shall enter an order expunging the records of |
2 | | arrest from the official records of the arresting |
3 | | authority and order that the records of the circuit |
4 | | court clerk and the Department of State Police be |
5 | | expunged and the name of the defendant obliterated |
6 | | from the official index requested to be kept by the |
7 | | circuit court clerk under Section 16 of the Clerks of |
8 | | Courts Act in connection with the arrest and |
9 | | conviction for the offense for which the individual |
10 | | had received a pardon but the order shall not affect |
11 | | any index issued by the circuit court clerk before the |
12 | | entry of the order. Upon entry of the order of |
13 | | expungement, the circuit court clerk shall promptly |
14 | | provide a copy of the order and a certificate of |
15 | | disposition to the individual who was pardoned to the |
16 | | individual's last known address or by electronic means |
17 | | (if available) or otherwise make it available to the |
18 | | individual upon request. |
19 | | (D) Nothing in this Section is intended to |
20 | | diminish or abrogate any rights or remedies otherwise |
21 | | available to the individual. |
22 | | (3) Any individual may file a motion to vacate and |
23 | | expunge a conviction for a misdemeanor or Class 4 felony |
24 | | violation of Section 4 or Section 5 of the Cannabis |
25 | | Control Act. Motions to vacate and expunge under this |
26 | | subsection (i) may be filed with the circuit court, Chief |
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1 | | Judge of a judicial circuit or any judge of the circuit |
2 | | designated by the Chief Judge. The circuit court clerk |
3 | | shall promptly serve a copy of the motion to vacate and |
4 | | expunge, and any supporting documentation, on the State's |
5 | | Attorney or prosecutor charged with the duty of |
6 | | prosecuting the offense. When considering such a motion to |
7 | | vacate and expunge, a court shall consider the following: |
8 | | the reasons to retain the records provided by law |
9 | | enforcement, the petitioner's age, the petitioner's age at |
10 | | the time of offense, the time since the conviction, and |
11 | | the specific adverse consequences if denied. An individual |
12 | | may file such a petition after the completion of any |
13 | | non-financial sentence or non-financial condition imposed |
14 | | by the conviction. Within 60 days of the filing of such |
15 | | motion, a State's Attorney may file an objection to such a |
16 | | petition along with supporting evidence. If a motion to |
17 | | vacate and expunge is granted, the records shall be |
18 | | expunged in accordance with subparagraphs (d)(8) and |
19 | | (d)(9)(A) of this Section. An agency providing civil legal |
20 | | aid, as defined by Section 15 of the Public Interest |
21 | | Attorney Assistance Act, assisting individuals seeking to |
22 | | file a motion to vacate and expunge under this subsection |
23 | | may file motions to vacate and expunge with the Chief |
24 | | Judge of a judicial circuit or any judge of the circuit |
25 | | designated by the Chief Judge, and the motion may include |
26 | | more than one individual. Motions filed by an agency |
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1 | | providing civil legal aid concerning more than one |
2 | | individual may be prepared, presented, and signed |
3 | | electronically. |
4 | | (4) Any State's Attorney may file a motion to vacate |
5 | | and expunge a conviction for a misdemeanor or Class 4 |
6 | | felony violation of Section 4 or Section 5 of the Cannabis |
7 | | Control Act. Motions to vacate and expunge under this |
8 | | subsection (i) may be filed with the circuit court, Chief |
9 | | Judge of a judicial circuit or any judge of the circuit |
10 | | designated by the Chief Judge, and may include more than |
11 | | one individual. Motions filed by a State's Attorney |
12 | | concerning more than one individual may be prepared, |
13 | | presented, and signed electronically. When considering |
14 | | such a motion to vacate and expunge, a court shall |
15 | | consider the following: the reasons to retain the records |
16 | | provided by law enforcement, the individual's age, the |
17 | | individual's age at the time of offense, the time since |
18 | | the conviction, and the specific adverse consequences if |
19 | | denied. Upon entry of an order granting a motion to vacate |
20 | | and expunge records pursuant to this Section, the State's |
21 | | Attorney shall notify the Prisoner Review Board within 30 |
22 | | days. Upon entry of the order of expungement, the circuit |
23 | | court clerk shall promptly provide a copy of the order and |
24 | | a certificate of disposition to the individual whose |
25 | | records will be expunged to the individual's last known |
26 | | address or by electronic means (if available) or otherwise |
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1 | | make available to the individual upon request. If a motion |
2 | | to vacate and expunge is granted, the records shall be |
3 | | expunged in accordance with subparagraphs (d)(8) and |
4 | | (d)(9)(A) of this Section. |
5 | | (5) In the public interest, the State's Attorney of a |
6 | | county has standing to file motions to vacate and expunge |
7 | | pursuant to this Section in the circuit court with |
8 | | jurisdiction over the underlying conviction. |
9 | | (6) If a person is arrested for a Minor Cannabis |
10 | | Offense as defined in this Section before June 25, 2019 |
11 | | (the effective date of Public Act 101-27) and the person's |
12 | | case is still pending but a sentence has not been imposed, |
13 | | the person may petition the court in which the charges are |
14 | | pending for an order to summarily dismiss those charges |
15 | | against him or her, and expunge all official records of |
16 | | his or her arrest, plea, trial, conviction, incarceration, |
17 | | supervision, or expungement. If the court determines, upon |
18 | | review, that:
(A) the person was arrested before June 25, |
19 | | 2019 (the effective date of Public Act 101-27) for an |
20 | | offense that has been made eligible for expungement;
(B) |
21 | | the case is pending at the time; and
(C) the person has not |
22 | | been sentenced of the minor cannabis violation eligible |
23 | | for expungement under this subsection, the court shall |
24 | | consider the following: the reasons to retain the records |
25 | | provided by law enforcement, the petitioner's age, the |
26 | | petitioner's age at the time of offense, the time since |
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1 | | the conviction, and the specific adverse consequences if |
2 | | denied. If a motion to dismiss and expunge is granted, the |
3 | | records shall be expunged in accordance with subparagraph |
4 | | (d)(9)(A) of this Section. |
5 | | (7) A person imprisoned solely as a result of one or |
6 | | more convictions for Minor Cannabis Offenses under this |
7 | | subsection (i) shall be released from incarceration upon |
8 | | the issuance of an order under this subsection. |
9 | | (8) The Department of State Police shall allow a |
10 | | person to use the access and review process, established |
11 | | in the Department of State Police, for verifying that his |
12 | | or her records relating to Minor Cannabis Offenses of the |
13 | | Cannabis Control Act eligible under this Section have been |
14 | | expunged. |
15 | | (9) No conviction vacated pursuant to this Section |
16 | | shall serve as the basis for damages for time unjustly |
17 | | served as provided in the Court of Claims Act. |
18 | | (10) Effect of Expungement. A person's right to |
19 | | expunge an expungeable offense shall not be limited under |
20 | | this Section. The effect of an order of expungement shall |
21 | | be to restore the person to the status he or she occupied |
22 | | before the arrest, charge, or conviction. |
23 | | (11) Information. The Department of State Police shall |
24 | | post general information on its website about the |
25 | | expungement process described in this subsection (i). |
26 | | (j) Felony Prostitution Convictions. |
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1 | | (1) Any individual may file a motion to vacate and |
2 | | expunge a conviction for a prior Class 4 felony violation |
3 | | of prostitution. Motions to vacate and expunge under this |
4 | | subsection (j) may be filed with the circuit court, Chief |
5 | | Judge of a judicial circuit, or any judge of the circuit |
6 | | designated by the Chief Judge. When considering the motion |
7 | | to vacate and expunge, a court shall consider the |
8 | | following: |
9 | | (A) the reasons to retain the records provided by |
10 | | law enforcement; |
11 | | (B) the petitioner's age; |
12 | | (C) the petitioner's age at the time of offense; |
13 | | and |
14 | | (D) the time since the conviction, and the |
15 | | specific adverse consequences if denied. An individual |
16 | | may file the petition after the completion of any |
17 | | sentence or condition imposed by the conviction. |
18 | | Within 60 days of the filing of the motion, a State's |
19 | | Attorney may file an objection to the petition along |
20 | | with supporting evidence. If a motion to vacate and |
21 | | expunge is granted, the records shall be expunged in |
22 | | accordance with subparagraph (d)(9)(A) of this |
23 | | Section. An agency providing civil legal aid, as |
24 | | defined in Section 15 of the Public Interest Attorney |
25 | | Assistance Act, assisting individuals seeking to file |
26 | | a motion to vacate and expunge under this subsection |
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1 | | may file motions to vacate and expunge with the Chief |
2 | | Judge of a judicial circuit or any judge of the circuit |
3 | | designated by the Chief Judge, and the motion may |
4 | | include more than one individual. |
5 | | (2) Any State's Attorney may file a motion to vacate |
6 | | and expunge a conviction for a Class 4 felony violation of |
7 | | prostitution. Motions to vacate and expunge under this |
8 | | subsection (j) may be filed with the circuit court, Chief |
9 | | Judge of a judicial circuit, or any judge of the circuit |
10 | | court designated by the Chief Judge, and may include more |
11 | | than one individual. When considering the motion to vacate |
12 | | and expunge, a court shall consider the following reasons: |
13 | | (A) the reasons to retain the records provided by |
14 | | law enforcement; |
15 | | (B) the petitioner's age; |
16 | | (C) the petitioner's age at the time of offense; |
17 | | (D) the time since the conviction; and |
18 | | (E) the specific adverse consequences if denied. |
19 | | If the State's Attorney files a motion to vacate and |
20 | | expunge records for felony prostitution convictions |
21 | | pursuant to this Section, the State's Attorney shall |
22 | | notify the Prisoner Review Board within 30 days of the |
23 | | filing. If a motion to vacate and expunge is granted, the |
24 | | records shall be expunged in accordance with subparagraph |
25 | | (d)(9)(A) of this Section. |
26 | | (3) In the public interest, the State's Attorney of a |
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1 | | county has standing to file motions to vacate and expunge |
2 | | pursuant to this Section in the circuit court with |
3 | | jurisdiction over the underlying conviction. |
4 | | (4) The Illinois State Police shall allow a person to |
5 | | a use the access and review process, established in the |
6 | | Illinois State Police, for verifying that his or her |
7 | | records relating to felony prostitution eligible under |
8 | | this Section have been expunged. |
9 | | (5) No conviction vacated pursuant to this Section |
10 | | shall serve as the basis for damages for time unjustly |
11 | | served as provided in the Court of Claims Act. |
12 | | (6) Effect of Expungement. A person's right to expunge |
13 | | an expungeable offense shall not be limited under this |
14 | | Section. The effect of an order of expungement shall be to |
15 | | restore the person to the status he or she occupied before |
16 | | the arrest, charge, or conviction. |
17 | | (7) Information. The Illinois State Police shall post |
18 | | general information on its website about the expungement |
19 | | process described in this subsection (j). |
20 | | (Source: P.A. 100-201, eff. 8-18-17; 100-282, eff. 1-1-18; |
21 | | 100-284, eff. 8-24-17; 100-287, eff. 8-24-17; 100-692, eff. |
22 | | 8-3-18; 100-759, eff. 1-1-19; 100-776, eff. 8-10-18; 100-863, |
23 | | eff. 8-14-18; 101-27, eff. 6-25-19; 101-81, eff. 7-12-19; |
24 | | 101-159, eff. 1-1-20; 101-306, eff. 8-9-19; 101-593, eff. |
25 | | 12-4-19; 101-645, eff. 6-26-20; revised 8-18-20.)
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1 | | Section 10. The Code of Criminal Procedure of 1963 is |
2 | | amended by changing Section 122-1 as follows:
|
3 | | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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4 | | Sec. 122-1. Petition in the trial court.
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5 | | (a) Any person imprisoned in the penitentiary may |
6 | | institute a proceeding under this Article if the person |
7 | | asserts that: |
8 | | (1) in the
proceedings which resulted in his or her |
9 | | conviction there was a substantial
denial of his or her |
10 | | rights under the Constitution of the United States or
of |
11 | | the State of Illinois or both;
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12 | | (2) the death penalty was imposed and there is
newly |
13 | | discovered evidence not available to the person at
the |
14 | | time of the proceeding that resulted in his or her
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15 | | conviction that establishes a substantial basis to believe |
16 | | that the defendant
is actually innocent by clear and |
17 | | convincing evidence; or
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18 | | (3) (blank). |
19 | | (a-5) A proceeding under paragraph (2) of subsection (a)
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20 | | may be commenced within a reasonable period of time after the |
21 | | person's
conviction
notwithstanding any other provisions of
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22 | | this Article. In such a proceeding regarding
actual innocence, |
23 | | if the court determines the petition is
frivolous or is |
24 | | patently without merit, it shall dismiss the
petition in a |
25 | | written order, specifying the findings of fact
and conclusions |
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1 | | of law it made in reaching its decision.
Such order of |
2 | | dismissal is a final judgment and shall be
served upon the |
3 | | petitioner by certified mail within 10 days
of its entry.
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4 | | (b) The proceeding shall be commenced by filing with the |
5 | | clerk of the court
in which the conviction took place a |
6 | | petition (together with a copy thereof)
verified by affidavit. |
7 | | Petitioner shall also serve another copy upon the
State's |
8 | | Attorney by any of the methods provided in Rule 7 of the |
9 | | Supreme
Court. The clerk shall docket the petition for |
10 | | consideration by the court
pursuant to Section 122-2.1 upon |
11 | | his or her receipt thereof and bring the same
promptly to the |
12 | | attention of the court.
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13 | | (c) Except as otherwise provided in subsection (a-5), if
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14 | | the petitioner is under sentence of death and a petition for |
15 | | writ of certiorari is filed,
no proceedings under this Article |
16 | | shall be commenced more than 6 months after
the conclusion of |
17 | | proceedings in the United States Supreme Court, unless the |
18 | | petitioner alleges facts showing that the delay
was
not due to |
19 | | his or her culpable negligence. If a petition for certiorari |
20 | | is not filed, no proceedings under this Article shall be |
21 | | commenced more than 6 months from the date for filing a |
22 | | certiorari petition, unless the petitioner alleges facts |
23 | | showing that the delay was not due to his or her culpable |
24 | | negligence.
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25 | | When a defendant has a sentence other than death, no |
26 | | proceedings under this
Article shall be commenced more than 6 |
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1 | | months after the conclusion of proceedings in the United |
2 | | States Supreme Court, unless the petitioner
alleges facts |
3 | | showing that the delay was not due to his or her culpable
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4 | | negligence.
If a petition for certiorari is not filed, no |
5 | | proceedings under this Article shall be commenced more than 6 |
6 | | months from the date for filing a certiorari petition, unless |
7 | | the petitioner alleges facts showing that the delay was not |
8 | | due to his or her culpable negligence. If a defendant does not |
9 | | file a direct appeal, the post-conviction petition shall be |
10 | | filed no later than 3 years from the date of conviction, unless |
11 | | the petitioner alleges facts showing that the delay was not |
12 | | due to his or her culpable negligence.
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13 | | This limitation does not apply to a petition advancing a |
14 | | claim of actual
innocence. |
15 | | (d) A person seeking relief by filing a petition under |
16 | | this Section must
specify in the petition or its heading that |
17 | | it is filed under this Section.
A trial court that has received |
18 | | a petition complaining of a conviction or
sentence that fails |
19 | | to specify in the petition or its heading that it is
filed |
20 | | under this Section need not evaluate the petition to determine
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21 | | whether it could otherwise have stated some grounds for relief |
22 | | under
this Article.
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23 | | (e) A proceeding under this Article may not be commenced |
24 | | on behalf of a
defendant who has been sentenced to death |
25 | | without the written consent of the
defendant, unless the |
26 | | defendant, because of a mental or physical condition, is
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1 | | incapable of asserting his or her own claim.
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2 | | (f) Only one petition may be filed by a petitioner under |
3 | | this Article
without leave of the court.
Leave of court may be |
4 | | granted only if a petitioner demonstrates
cause for his or her |
5 | | failure to bring the claim in his or her initial
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6 | | post-conviction proceedings and prejudice results from that |
7 | | failure. For
purposes
of this subsection (f): (1) a prisoner |
8 | | shows cause by identifying an objective
factor that impeded |
9 | | his or her ability to raise a specific claim during his or
her |
10 | | initial post-conviction proceedings; and (2) a prisoner shows |
11 | | prejudice by
demonstrating that the claim not raised during |
12 | | his or her initial
post-conviction proceedings so infected the |
13 | | trial that the resulting conviction
or
sentence violated due |
14 | | process.
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15 | | (Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
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16 | | Section 15. The Code of Civil Procedure is amended by |
17 | | changing Section 2-1401 as follows:
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18 | | (735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
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19 | | Sec. 2-1401. Relief from judgments.
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20 | | (a) Relief from final orders and judgments, after 30 days |
21 | | from the
entry thereof, may be had upon petition as provided in |
22 | | this Section.
Writs of error coram nobis and coram vobis, |
23 | | bills of review and bills
in the nature of bills of review are |
24 | | abolished. All relief heretofore
obtainable and the grounds |
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1 | | for such relief heretofore available,
whether by any of the |
2 | | foregoing remedies or otherwise, shall be
available in every |
3 | | case, by proceedings hereunder, regardless of the
nature of |
4 | | the order or judgment from which relief is sought or of the
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5 | | proceedings in which it was entered. Except as provided in the |
6 | | Illinois Parentage Act of 2015, there shall be no distinction
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7 | | between actions and other proceedings, statutory or otherwise, |
8 | | as to
availability of relief, grounds for relief or the relief |
9 | | obtainable.
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10 | | (b) The petition must be filed in the same proceeding in |
11 | | which the
order or judgment was entered but is not a |
12 | | continuation thereof. The
petition must be supported by |
13 | | affidavit or other appropriate showing as
to matters not of |
14 | | record. A petition to reopen a foreclosure proceeding must |
15 | | include as parties to the petition, but is not limited to, all |
16 | | parties in the original action in addition to the current |
17 | | record title holders of the property, current occupants, and |
18 | | any individual or entity that had a recorded interest in the |
19 | | property before the filing of the petition. All parties to the |
20 | | petition shall be notified
as provided by rule.
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21 | | (b-5) A movant may present a meritorious claim under this |
22 | | Section if the allegations in the petition establish each of |
23 | | the following by a preponderance of the evidence: |
24 | | (1) the movant was convicted of a forcible felony; |
25 | | (2) the movant's participation in the offense was |
26 | | related to him or her previously having been a victim of |
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1 | | domestic violence as perpetrated by an intimate partner; |
2 | | (3) no evidence of domestic violence against the |
3 | | movant was presented at the movant's sentencing hearing; |
4 | | (4) the movant was unaware of the mitigating nature of |
5 | | the evidence of the domestic violence at the time of |
6 | | sentencing and could not have learned of its significance |
7 | | sooner through diligence; and |
8 | | (5) the new evidence of domestic violence against the |
9 | | movant is material and noncumulative to other evidence |
10 | | offered at the sentencing hearing, and is of such a |
11 | | conclusive character that it would likely change the |
12 | | sentence imposed by the original trial court. |
13 | | Nothing in this subsection (b-5) shall prevent a movant |
14 | | from applying for any other relief under this Section or any |
15 | | other law otherwise available to him or her. |
16 | | As used in this subsection (b-5): |
17 | | "Domestic violence" means abuse as defined in Section |
18 | | 103
of the Illinois Domestic Violence Act of 1986. |
19 | | "Forcible felony" has the meaning ascribed to the term |
20 | | in
Section 2-8 of the Criminal Code of 2012. |
21 | | "Intimate partner" means a spouse or former spouse, |
22 | | persons
who have or allegedly have had a child in common, |
23 | | or persons who
have or have had a dating or engagement |
24 | | relationship. |
25 | | (b-10) A movant may present a meritorious claim under this |
26 | | Section if the allegations in the petition establish each of |
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1 | | the following by a preponderance of the evidence: |
2 | | (A) she was convicted of a forcible felony; |
3 | | (B) her participation in the offense was a direct |
4 | | result of her suffering from post-partum depression or |
5 | | post-partum psychosis; |
6 | | (C) no evidence of post-partum depression or |
7 | | post-partum psychosis was presented by a qualified medical |
8 | | person at trial or sentencing, or both; |
9 | | (D) she was unaware of the mitigating nature of the |
10 | | evidence or, if aware, was at the time unable to present |
11 | | this defense due to suffering from post-partum depression |
12 | | or post-partum psychosis, or, at the time of trial or |
13 | | sentencing, neither was a recognized mental illness and as |
14 | | such, she was unable to receive proper treatment;
and |
15 | | (E) evidence of post-partum depression or post-partum |
16 | | psychosis as suffered by the person is material and |
17 | | noncumulative to other evidence offered at the time of |
18 | | trial or sentencing, and it is of such a conclusive |
19 | | character that it would likely change the sentence imposed |
20 | | by the original court. |
21 | | Nothing in this subsection (b-10) prevents a person from |
22 | | applying for any other relief under this Article or any other |
23 | | law otherwise available to her. |
24 | | As used in this subsection (b-10): |
25 | | "Post-partum depression" means a mood disorder which |
26 | | strikes many women during and after pregnancy and usually |
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1 | | occurs during pregnancy and up to 12 months after |
2 | | delivery. This depression can include anxiety disorders. |
3 | | "Post-partum psychosis" means an extreme form of |
4 | | post-partum depression which can occur during pregnancy |
5 | | and up to 12 months after delivery. This can include |
6 | | losing touch with reality, distorted thinking, delusions, |
7 | | auditory and visual hallucinations, paranoia, |
8 | | hyperactivity and rapid speech, or mania. |
9 | | (c) Except as provided in Section 20b of the Adoption Act |
10 | | and Section
2-32 of the Juvenile Court Act of 1987 or in a |
11 | | petition based
upon Section 116-3 of the Code of Criminal |
12 | | Procedure of 1963 or subsection (b-10) of this Section, or in a |
13 | | motion to vacate and expunge convictions under the Cannabis |
14 | | Control Act as provided by subsection (i) of Section 5.2 of the |
15 | | Criminal Identification Act, the petition
must be filed not |
16 | | later than 2 years after the entry of the order or judgment.
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17 | | Time during which the person seeking relief is under legal |
18 | | disability or
duress or the ground for relief is fraudulently |
19 | | concealed shall be excluded
in computing the period of 2 |
20 | | years.
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21 | | (c-5) Any individual may at any time file a petition and |
22 | | institute proceedings under this Section, if his or her final |
23 | | order or judgment, which was entered based on a plea of guilty |
24 | | or nolo contendere, has potential consequences under federal |
25 | | immigration law. |
26 | | (d) The filing of a petition under this Section does not |
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1 | | affect the
order or judgment, or suspend its operation.
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2 | | (e) Unless lack of jurisdiction affirmatively appears from |
3 | | the
record proper, the vacation or modification of an order or |
4 | | judgment
pursuant to the provisions of this Section does not |
5 | | affect the right,
title or interest in or to any real or |
6 | | personal property of any person,
not a party to the original |
7 | | action, acquired for value after the entry
of the order or |
8 | | judgment but before the filing of the petition, nor
affect any |
9 | | right of any person not a party to the original action under
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10 | | any certificate of sale issued before the filing of the |
11 | | petition,
pursuant to a sale based on the order or judgment. |
12 | | When a petition is filed pursuant to this Section to reopen a |
13 | | foreclosure proceeding, notwithstanding the provisions of |
14 | | Section 15-1701 of this Code, the purchaser or successor |
15 | | purchaser of real property subject to a foreclosure sale who |
16 | | was not a party to the mortgage foreclosure proceedings is |
17 | | entitled to remain in possession of the property until the |
18 | | foreclosure action is defeated or the previously foreclosed |
19 | | defendant redeems from the foreclosure sale if the purchaser |
20 | | has been in possession of the property for more than 6 months.
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21 | | (f) Nothing contained in this Section affects any existing |
22 | | right to
relief from a void order or judgment, or to employ any |
23 | | existing method
to procure that relief.
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24 | | (Source: P.A. 100-1048, eff. 8-23-18; 101-27, eff. 6-25-19; |
25 | | 101-411, eff. 8-16-19; revised 9-17-19.)
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26 | | Section 99. Effective date. This Act takes effect upon |