Full Text of SB2781 97th General Assembly
SB2781sam002 97TH GENERAL ASSEMBLY | Sen. Donne E. Trotter Filed: 5/22/2012
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| 1 | | AMENDMENT TO SENATE BILL 2781
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2781 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-702 as follows: | 6 | | (735 ILCS 5/2-702) | 7 | | Sec. 2-702. Petition for a certificate of innocence that | 8 | | the petitioner was innocent of all offenses for which he or she | 9 | | was incarcerated. | 10 | | (a) The General Assembly finds and declares that innocent | 11 | | persons who have been wrongly convicted of crimes in Illinois | 12 | | and subsequently imprisoned have been frustrated in seeking | 13 | | legal redress due to a variety of substantive and technical | 14 | | obstacles in the law and that such persons should have an | 15 | | available avenue to obtain a finding of innocence so that they | 16 | | may obtain relief through a petition in the Court of Claims. |
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| 1 | | The General Assembly further finds misleading the current legal | 2 | | nomenclature which compels an innocent person to seek a pardon | 3 | | for being wrongfully incarcerated. It is the intent of the | 4 | | General Assembly that the court, in exercising its discretion | 5 | | as permitted by law regarding the weight and admissibility of | 6 | | evidence submitted pursuant to this Section, shall, in the | 7 | | interest of justice, give due consideration to difficulties of | 8 | | proof caused by the passage of time, the death or | 9 | | unavailability of witnesses, the destruction of evidence or | 10 | | other factors not caused by such persons or those acting on | 11 | | their behalf. | 12 | | (b) Any person convicted and subsequently imprisoned for | 13 | | one or more felonies by the State of Illinois which he or she | 14 | | did not commit may, under the conditions hereinafter provided, | 15 | | file a petition for certificate of innocence in the circuit | 16 | | court of the county in which the person was convicted. The | 17 | | petition shall request a certificate of innocence finding that | 18 | | the petitioner was innocent of all offenses for which he or she | 19 | | was incarcerated. | 20 | | (b-5) The presumption of legal innocence is restored when: | 21 | | a conviction has been reversed or vacated, and the indictment | 22 | | or information has been dismissed; or if a new trial was | 23 | | ordered and the defendant was found not guilty at the new trial | 24 | | or he or she was not retried, and the indictment or information | 25 | | was dismissed; or the statute, or the application thereof, upon | 26 | | which the indictment or information was based has been found by |
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| 1 | | a court to have violated the Constitution of the United States | 2 | | or the Constitution of the State of Illinois. | 3 | | (c) In order to present the claim for certificate of | 4 | | innocence of an unjust conviction and imprisonment, the | 5 | | petitioner must attach to his or her petition documentation | 6 | | demonstrating that: | 7 | | (1) he or she has been convicted of one or more | 8 | | felonies by the State of Illinois and subsequently | 9 | | sentenced to a term of imprisonment, and has served all or | 10 | | any part of the sentence; and | 11 | | (2) his or her judgment of conviction was reversed or | 12 | | vacated, and the indictment or information dismissed or, if | 13 | | a new trial was ordered, either he or she was found not | 14 | | guilty at the new trial or he or she was not retried and | 15 | | the indictment or information dismissed; or the statute, or | 16 | | application thereof, on which the indictment or | 17 | | information was based violated the Constitution of the | 18 | | United States or the State of Illinois; and | 19 | | (3) his or her claim is not time barred by the | 20 | | provisions of subsection (i) of this Section. | 21 | | (d) The petition shall state facts in sufficient detail to | 22 | | permit the court to find that the petitioner is likely to | 23 | | succeed at trial in proving that the petitioner is innocent of | 24 | | the offenses charged in the indictment or information or his or | 25 | | her acts or omissions charged in the indictment or information | 26 | | did not constitute a felony or misdemeanor against the State of |
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| 1 | | Illinois, and the petitioner did not by his or her own conduct | 2 | | voluntarily cause or bring about his or her conviction. The | 3 | | petition shall be verified by the petitioner. | 4 | | (e) A copy of the petition shall be served on the Attorney | 5 | | General and the State's Attorney of the county where the | 6 | | conviction was had. The Attorney General and the State's | 7 | | Attorney of the county where the conviction was had shall have | 8 | | the right to intervene as parties. | 9 | | (f) In any hearing seeking a certificate of innocence, the | 10 | | court may take judicial notice of prior sworn testimony or | 11 | | evidence admitted in the criminal proceedings related to the | 12 | | convictions which resulted in the alleged wrongful | 13 | | incarceration, if the petitioner was either represented by | 14 | | counsel at such prior proceedings or the right to counsel was | 15 | | knowingly waived. | 16 | | (g) In order to obtain a certificate of innocence the | 17 | | petitioner must prove by a preponderance of evidence that: | 18 | | (1) the petitioner was convicted of one or more | 19 | | felonies by the State of Illinois and subsequently | 20 | | sentenced to a term of imprisonment, and has served all or | 21 | | any part of the sentence; | 22 | | (2)(A) the judgment of conviction was reversed or | 23 | | vacated, and the indictment or information dismissed or, if | 24 | | a new trial was ordered, either the petitioner was found | 25 | | not guilty at the new trial or the petitioner was not | 26 | | retried and the indictment or information dismissed; or (B) |
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| 1 | | the statute, or application thereof, on which the | 2 | | indictment or information was based violated the | 3 | | Constitution of the United States or the State of Illinois; | 4 | | (3) the petitioner is innocent of the offenses charged | 5 | | in the indictment or information or his or her acts or | 6 | | omissions charged in the indictment or information did not | 7 | | constitute a felony or misdemeanor against the State; and | 8 | | (4) the petitioner did not by his or her own conduct
| 9 | | voluntarily cause or bring about his or her conviction. A | 10 | | confession made as a result of a custodial interrogation | 11 | | that was either challenged prior to trial, or repudiated at | 12 | | trial, shall not be considered conduct that voluntarily | 13 | | caused or brought about the conviction. A petitioner whose | 14 | | conviction is brought about by a guilty plea that is later | 15 | | vacated based on new evidence of innocence shall not be | 16 | | automatically barred from obtaining a certificate of | 17 | | innocence. In those cases, the court shall consider the | 18 | | totality of the circumstances in determining whether the | 19 | | petitioner voluntarily caused or brought about the | 20 | | conviction. | 21 | | (h) If the court finds that the petitioner is entitled to a
| 22 | | judgment, it shall enter a certificate of innocence finding | 23 | | that
the petitioner was innocent of all offenses for which he | 24 | | or she was incarcerated. Upon entry of the certificate of | 25 | | innocence or pardon from the Governor stating that such pardon | 26 | | was issued on the ground of innocence of the crime for which he |
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| 1 | | or she was imprisoned, (1) the clerk of the court shall | 2 | | transmit a copy of the certificate of innocence to the clerk of | 3 | | the Court of Claims, together with the claimant's current | 4 | | address; and (2) the court shall enter an order expunging or | 5 | | sealing the record of arrest from the
official records of the
| 6 | | arresting authority and order that the records of the clerk of | 7 | | the circuit
court and Department of
State Police be sealed | 8 | | until further order of the court upon good cause shown
or as | 9 | | otherwise provided
herein, and the name of the defendant | 10 | | obliterated from the official index
requested to be kept by the
| 11 | | circuit court clerk under Section 16 of the Clerks of Courts | 12 | | Act in connection
with the arrest and
conviction for the | 13 | | offense but the order shall not affect any index issued by
the | 14 | | circuit court clerk before the entry of the order. | 15 | | (i) Any person seeking a certificate of innocence under | 16 | | this
Section based on the dismissal of an indictment or | 17 | | information
or acquittal that occurred before the effective | 18 | | date of this
amendatory Act of the 95th General Assembly shall | 19 | | file his or
her petition within 2 years after the effective | 20 | | date of this
amendatory Act of the 95th General Assembly. Any | 21 | | person seeking
a certificate of innocence under this Section | 22 | | based on the
dismissal of an indictment or information or | 23 | | acquittal that
occurred on or after the effective date of this | 24 | | amendatory Act
of the 95th General Assembly shall file his or | 25 | | her petition
within 2 years after the dismissal. | 26 | | (j) The decision to grant or deny a certificate of |
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| 1 | | innocence shall be binding only with respect to claims filed in | 2 | | the Court of Claims and shall not have a res judicata effect on | 3 | | any other proceedings.
| 4 | | (Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11 .)
| 5 | | Section 99. Effective date. This Act takes effect upon | 6 | | becoming law.".
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