Full Text of SB1422 100th General Assembly
SB1422 100TH GENERAL ASSEMBLY |
| | 100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018 SB1422 Introduced 2/9/2017, by Sen. Chris Nybo SYNOPSIS AS INTRODUCED: |
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720 ILCS 5/3-6 | from Ch. 38, par. 3-6 |
720 ILCS 5/3-7 | from Ch. 38, par. 3-7 |
725 ILCS 5/114-1 | from Ch. 38, par. 114-1 |
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Amends the Criminal Code of 2012. Provides that the prosecution shall not be required to prove at trial facts which extend the general limitations or establish periods excluded from the general limitations, when the facts supporting extension of or the exclusion from the period of general limitations are properly pled in the charging document. Provides that any challenge relating to the extension of or exclusion from the general limitations period shall be exclusively conducted under the dismissal of charges provisions of the Code of Criminal Procedure of 1963. Amends the Code of Criminal Procedure of 1963. Provides that when a defendant seeks dismissal of the charge upon the grounds that it is barred by the statute of limitations, the prosecution shall have the burden of proving, by a preponderance of the evidence, that the
prosecution of the offense is not barred by the statute of limitations.
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by changing | 5 | | Sections 3-6 and 3-7 as follows:
| 6 | | (720 ILCS 5/3-6) (from Ch. 38, par. 3-6)
| 7 | | Sec. 3-6. Extended limitations. The period within which a | 8 | | prosecution
must be commenced under the provisions of Section | 9 | | 3-5 or other applicable
statute is extended under the following | 10 | | conditions:
| 11 | | (a) A prosecution for theft involving a breach of a | 12 | | fiduciary obligation
to the aggrieved person may be commenced | 13 | | as follows:
| 14 | | (1) If the aggrieved person is a minor or a person | 15 | | under legal disability,
then during the minority or legal | 16 | | disability or within one year after the
termination | 17 | | thereof.
| 18 | | (2) In any other instance, within one year after the | 19 | | discovery of the
offense by an aggrieved person, or by a | 20 | | person who has legal capacity to
represent an aggrieved | 21 | | person or has a legal duty to report the offense,
and is | 22 | | not himself or herself a party to the offense; or in the | 23 | | absence of such
discovery, within one year after the proper |
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| 1 | | prosecuting officer becomes
aware of the offense. However, | 2 | | in no such case is the period of limitation
so extended | 3 | | more than 3 years beyond the expiration of the period | 4 | | otherwise
applicable.
| 5 | | (b) A prosecution for any offense based upon misconduct in | 6 | | office by a
public officer or employee may be commenced within | 7 | | one year after discovery
of the offense by a person having a | 8 | | legal duty to report such offense, or
in the absence of such | 9 | | discovery, within one year after the proper
prosecuting officer | 10 | | becomes aware of the offense. However, in no such case
is the | 11 | | period of limitation so extended more than 3 years beyond the
| 12 | | expiration of the period otherwise applicable.
| 13 | | (b-5) When the victim is under 18 years of age at the time | 14 | | of the offense, a prosecution for involuntary servitude, | 15 | | involuntary sexual servitude of a minor, or trafficking in | 16 | | persons and related offenses under Section 10-9 of this Code | 17 | | may be commenced within one year of the victim attaining the | 18 | | age of 18 years. However, in no such case shall the time period | 19 | | for prosecution expire sooner than 3 years after the commission | 20 | | of the offense. | 21 | | (c) (Blank).
| 22 | | (d) A prosecution for child pornography, aggravated child | 23 | | pornography, indecent
solicitation of a
child, soliciting for a | 24 | | juvenile prostitute, juvenile pimping,
exploitation of a | 25 | | child, or promoting juvenile prostitution except for keeping a | 26 | | place of juvenile prostitution may be commenced within one year |
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| 1 | | of the victim
attaining the age of 18 years. However, in no | 2 | | such case shall the time
period for prosecution expire sooner | 3 | | than 3 years after the commission of
the offense. When the | 4 | | victim is under 18 years of age, a prosecution for
criminal
| 5 | | sexual abuse may be commenced within
one year of the victim | 6 | | attaining the age of 18 years. However, in no such
case shall | 7 | | the time period for prosecution expire sooner than 3 years | 8 | | after
the commission of the offense.
| 9 | | (e) Except as otherwise provided in subdivision (j), a | 10 | | prosecution for
any offense involving sexual conduct or sexual
| 11 | | penetration, as defined in Section 11-0.1 of this Code, where | 12 | | the defendant
was within a professional or fiduciary | 13 | | relationship or a purported
professional or fiduciary | 14 | | relationship with the victim at the
time of the commission of | 15 | | the offense may be commenced within one year
after the | 16 | | discovery of the offense by the victim.
| 17 | | (f) A prosecution for any offense set forth in Section 44
| 18 | | of the "Environmental Protection Act", approved June 29, 1970, | 19 | | as amended,
may be commenced within 5 years after the discovery | 20 | | of such
an offense by a person or agency having the legal duty | 21 | | to report the
offense or in the absence of such discovery, | 22 | | within 5 years
after the proper prosecuting officer becomes | 23 | | aware of the offense.
| 24 | | (f-5) A prosecution for any offense set forth in Section | 25 | | 16-30 of this Code may be commenced within 5 years after the | 26 | | discovery of the offense by the victim of that offense.
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| 1 | | (g) (Blank).
| 2 | | (h) (Blank).
| 3 | | (i) Except as otherwise provided in subdivision (j), a | 4 | | prosecution for
criminal sexual assault, aggravated criminal
| 5 | | sexual assault, or aggravated criminal sexual abuse may be | 6 | | commenced within 10
years of the commission of the offense if | 7 | | the victim reported the offense to
law enforcement authorities | 8 | | within 3 years after the commission of the offense.
| 9 | | Nothing in this subdivision (i) shall be construed to
| 10 | | shorten a period within which a prosecution must be commenced | 11 | | under any other
provision of this Section.
| 12 | | (i-5) A prosecution for armed robbery, home invasion, | 13 | | kidnapping, or aggravated kidnaping may be commenced within 10 | 14 | | years of the commission of the offense if it arises out of the | 15 | | same course of conduct and meets the criteria under one of the | 16 | | offenses in subsection (i) of this Section. | 17 | | (j) (1) When the victim is under 18 years of age at the | 18 | | time of the offense, a
prosecution
for criminal sexual assault, | 19 | | aggravated criminal sexual assault, predatory
criminal sexual | 20 | | assault of a child, aggravated criminal sexual abuse, or felony | 21 | | criminal sexual abuse may be commenced at any time when | 22 | | corroborating physical evidence is available or an individual | 23 | | who is required to report an alleged or suspected commission of | 24 | | any of these offenses under the Abused and Neglected Child | 25 | | Reporting Act fails to do so. | 26 | | (2) In circumstances other than as described in paragraph |
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| 1 | | (1) of this subsection (j), when the victim is under 18 years | 2 | | of age at the time of the offense, a prosecution for criminal | 3 | | sexual assault, aggravated criminal sexual assault, predatory | 4 | | criminal sexual assault of a child, aggravated criminal sexual | 5 | | abuse, or felony criminal sexual abuse, or a
prosecution for | 6 | | failure of a person who is required to report an alleged
or | 7 | | suspected commission of any of these offenses under the Abused | 8 | | and Neglected
Child Reporting Act may be
commenced within 20 | 9 | | years after the child victim attains 18
years of age. | 10 | | (3) When the victim is under 18 years of age at the time of | 11 | | the offense, a
prosecution
for misdemeanor criminal sexual | 12 | | abuse may be
commenced within 10 years after the child victim | 13 | | attains 18
years of age.
| 14 | | (4) Nothing in this subdivision (j) shall be construed to
| 15 | | shorten a period within which a prosecution must be commenced | 16 | | under any other
provision of this Section.
| 17 | | (j-5) A prosecution for armed robbery, home invasion, | 18 | | kidnapping, or aggravated kidnaping may be commenced at any | 19 | | time if it arises out of the same course of conduct and meets | 20 | | the criteria under one of the offenses in subsection (j) of | 21 | | this Section. | 22 | | (k) (Blank).
| 23 | | (l) A prosecution for any offense set forth in Section 26-4 | 24 | | of this Code may be commenced within one year after the | 25 | | discovery of the offense by the victim of that offense. | 26 | | (m) The prosecution shall not be required to prove at trial |
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| 1 | | facts which extend the general limitations in Section 3-5 of | 2 | | this Code, when the facts supporting extension of the period of | 3 | | general limitations are properly pled in the charging document. | 4 | | Any challenge relating to the extension of the general | 5 | | limitations period as defined in this Section shall be | 6 | | exclusively conducted under Section 114-1 of the Code of | 7 | | Criminal Procedure of 1963. | 8 | | (Source: P.A. 98-293, eff. 1-1-14; 98-379, eff. 1-1-14; 98-756, | 9 | | eff. 7-16-14; 99-234, eff. 8-3-15; 99-820, eff. 8-15-16.)
| 10 | | (720 ILCS 5/3-7) (from Ch. 38, par. 3-7)
| 11 | | Sec. 3-7. Periods
excluded from limitation. | 12 | | (a) The period within which a prosecution must be commenced | 13 | | does not include
any period in which:
| 14 | | (1) the defendant is not usually and publicly resident | 15 | | within this
State; or
| 16 | | (2) the defendant is a public officer and the offense | 17 | | charged is theft
of public funds while in public office; or
| 18 | | (3) a prosecution is pending against the defendant for | 19 | | the same conduct,
even if the indictment or information | 20 | | which commences the prosecution is
quashed or the | 21 | | proceedings thereon are set aside, or are reversed on
| 22 | | appeal; or
| 23 | | (4) a proceeding or an appeal from a proceeding | 24 | | relating
to the quashing or enforcement of a Grand Jury | 25 | | subpoena issued in connection
with an investigation of a |
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| 1 | | violation of a criminal law of this State is
pending. | 2 | | However, the period within which a prosecution must be | 3 | | commenced
includes any period in which the State brings a | 4 | | proceeding or an appeal from a
proceeding specified in this | 5 | | paragraph (4); or
| 6 | | (5) a material witness is placed on active military | 7 | | duty or leave. In
this paragraph (5), "material witness" | 8 | | includes, but is not limited to, the
arresting officer, | 9 | | occurrence witness, or the alleged victim of the offense; | 10 | | or | 11 | | (6) the victim of unlawful force or threat of imminent | 12 | | bodily harm to obtain information or a
confession is | 13 | | incarcerated, and the victim's incarceration, in whole or | 14 | | in part, is a consequence of the unlawful force or
threats; | 15 | | or | 16 | | (7) the sexual assault evidence is collected and | 17 | | submitted to the Department of State Police until the | 18 | | completion of the analysis of the submitted evidence.
| 19 | | (a-5) The prosecution shall not be required to prove at | 20 | | trial facts establishing periods excluded from the general | 21 | | limitations in Section 3-5 of this Code, when the facts | 22 | | supporting periods being excluded from the general limitations | 23 | | are properly pled in the charging document. Any challenge | 24 | | relating to periods of exclusion as defined in this Section | 25 | | shall be exclusively conducted under Section 114-1 of the Code | 26 | | of Criminal Procedure of 1963. |
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| 1 | | (b) For the purposes of this Section: | 2 | | "Completion of the analysis of the submitted evidence" | 3 | | means analysis of the collected evidence and conducting of | 4 | | laboratory
tests and the comparison of the collected | 5 | | evidence with the genetic marker grouping analysis | 6 | | information maintained by the Department of State Police | 7 | | under Section 5-4-3 of the Unified Code of Corrections and | 8 | | with the information contained in the Federal Bureau of | 9 | | Investigation's National DNA database. | 10 | | "Sexual assault" has the meaning ascribed to it in | 11 | | Section 1a of the Sexual Assault Survivors Emergency | 12 | | Treatment Act. | 13 | | "Sexual assault evidence" has the meaning ascribed to | 14 | | it in Section 5 of the Sexual Assault Evidence Submission | 15 | | Act. | 16 | | (Source: P.A. 99-252, eff. 1-1-16 .)
| 17 | | Section 10. The Code of Criminal Procedure of 1963 is | 18 | | amended by changing Section 114-1 as follows:
| 19 | | (725 ILCS 5/114-1) (from Ch. 38, par. 114-1)
| 20 | | Sec. 114-1. Motion to dismiss charge.
| 21 | | (a) Upon the written motion of the defendant made prior to | 22 | | trial before
or after a plea has been entered the court may | 23 | | dismiss the indictment,
information or complaint upon any of | 24 | | the following grounds:
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| 1 | | (1) The defendant has not been placed on trial in | 2 | | compliance
with Section 103-5 of this Code.
| 3 | | (2) The prosecution of the offense is barred by | 4 | | Sections 3-3 through
3-8 of the Criminal Code of 2012.
| 5 | | (3) The defendant has received immunity from | 6 | | prosecution for the offense
charged.
| 7 | | (4) The indictment was returned by a Grand Jury which | 8 | | was improperly
selected and which results in substantial | 9 | | injustice to the defendant.
| 10 | | (5) The indictment was returned by a Grand Jury which | 11 | | acted contrary to
Article 112 of this Code and which | 12 | | results in substantial injustice to the
defendant.
| 13 | | (6) The court in which the charge has been filed does | 14 | | not have
jurisdiction.
| 15 | | (7) The county is an improper place of trial.
| 16 | | (8) The charge does not state an offense.
| 17 | | (9) The indictment is based solely upon the testimony | 18 | | of an incompetent
witness.
| 19 | | (10) The defendant is misnamed in the charge and the | 20 | | misnomer results in
substantial injustice to the | 21 | | defendant.
| 22 | | (11) The requirements of Section 109-3.1 have not been | 23 | | complied with.
| 24 | | (b) The court shall require any motion to dismiss to be | 25 | | filed within a
reasonable time after the defendant has been | 26 | | arraigned. Any motion not
filed within such time or an |
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| 1 | | extension thereof shall not be considered by
the court and the | 2 | | grounds therefor, except as to subsections (a)(6) and
(a)(8) of | 3 | | this Section, are waived.
| 4 | | (c) If the motion presents only an issue of law the court | 5 | | shall
determine it without the necessity of further pleadings. | 6 | | If the motion
alleges facts not of record in the case the State | 7 | | shall file an answer
admitting or denying each of the factual | 8 | | allegations of the motion.
| 9 | | (d) When an issue of fact is presented by a motion to | 10 | | dismiss and the
answer of the State the court shall conduct a | 11 | | hearing and determine the
issues.
| 12 | | (d-5) When a defendant seeks dismissal of the charge upon | 13 | | the ground set
forth in subsection (a)(7) of this Section, the | 14 | | defendant shall make a prima
facie showing that the county is | 15 | | an improper place of trial. Upon such
showing, the State shall | 16 | | have the burden of proving, by a preponderance of
the evidence, | 17 | | that the county is the proper place of trial.
| 18 | | (d-6) When a defendant seeks dismissal of the charge upon | 19 | | the grounds set forth in subsection (a)(2) of this Section, the | 20 | | prosecution shall have the burden of proving, by a | 21 | | preponderance of the evidence, that the
prosecution of the | 22 | | offense is not barred by Sections 3-3 through 3-8 of the | 23 | | Criminal Code of 2012. | 24 | | (e) Dismissal of the charge upon the grounds set forth in | 25 | | subsections
(a)(4) through (a)(11) of this Section shall not | 26 | | prevent the return of a
new indictment or the filing of a new |
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| 1 | | charge, and upon such dismissal
the court may order that the | 2 | | defendant be held in custody or, if the
defendant had been | 3 | | previously released on bail, that the bail be continued for a | 4 | | specified time pending the return of a new
indictment or the | 5 | | filing of a new charge.
| 6 | | (f) If the court determines that the motion to dismiss | 7 | | based upon the
grounds set forth in subsections (a)(6) and | 8 | | (a)(7) is well founded it
may, instead of dismissal, order the | 9 | | cause transferred to a court of
competent jurisdiction or to a | 10 | | proper place of trial.
| 11 | | (Source: P.A. 97-1150, eff. 1-25-13.)
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