Full Text of SB1004 98th General Assembly
SB1004eng 98TH GENERAL ASSEMBLY |
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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 Identification Act is amended by | 5 | | changing Section 5.2 as follows:
| 6 | | (20 ILCS 2630/5.2)
| 7 | | Sec. 5.2. Expungement and sealing. | 8 | | (a) General Provisions. | 9 | | (1) Definitions. In this Act, words and phrases have
| 10 | | the meanings set forth in this subsection, except when a
| 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 by | 15 | | a legally constituted jury or by a court of competent | 16 | | jurisdiction authorized to try the case without a jury. | 17 | | An order of supervision successfully completed by the | 18 | | petitioner is not a conviction. An order of qualified | 19 | | probation (as defined in subsection (a)(1)(J)) | 20 | | successfully completed by the petitioner is not a | 21 | | conviction. An order of supervision or an order of | 22 | | 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 considered | 2 | | the "last sentence" regardless of whether they were | 3 | | 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 | | (H) "Municipal ordinance violation" means an | 9 | | offense defined by a municipal or local ordinance that | 10 | | is criminal in nature and with which the petitioner was | 11 | | charged or for which the petitioner was arrested and | 12 | | released without charging. | 13 | | (I) "Petitioner" means an adult or a minor | 14 | | prosecuted as an
adult who has applied for relief under | 15 | | this Section. | 16 | | (J) "Qualified probation" means an order of | 17 | | probation under Section 10 of the Cannabis Control Act, | 18 | | Section 410 of the Illinois Controlled Substances Act, | 19 | | Section 70 of the Methamphetamine Control and | 20 | | Community Protection Act, Section 5-6-3.3 of the | 21 | | Unified Code of Corrections, Section 12-4.3(b)(1) and | 22 | | (2) of the Criminal Code of 1961 (as those provisions | 23 | | existed before their deletion by Public Act 89-313), | 24 | | Section 10-102 of the Illinois Alcoholism and Other | 25 | | Drug Dependency Act, Section 40-10 of the Alcoholism | 26 | | and Other Drug Abuse and Dependency Act, or Section 10 |
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| 1 | | of the Steroid Control Act. For the purpose of this | 2 | | Section, "successful completion" of an order of | 3 | | qualified probation under Section 10-102 of the | 4 | | Illinois Alcoholism and Other Drug Dependency Act and | 5 | | Section 40-10 of the Alcoholism and Other Drug Abuse | 6 | | and Dependency Act means that the probation was | 7 | | terminated satisfactorily and the judgment of | 8 | | conviction was vacated. | 9 | | (K) "Seal" means to physically and electronically | 10 | | maintain the records, unless the records would | 11 | | otherwise be destroyed due to age, but to make the | 12 | | records unavailable without a court order, subject to | 13 | | the exceptions in Sections 12 and 13 of this Act. The | 14 | | petitioner's name shall also be obliterated from the | 15 | | official index required to be kept by the circuit court | 16 | | clerk under Section 16 of the Clerks of Courts Act, but | 17 | | any index issued by the circuit court clerk before the | 18 | | entry of the order to seal shall not be affected. | 19 | | (L) "Sexual offense committed against a minor" | 20 | | includes but is
not limited to the offenses of indecent | 21 | | solicitation of a child
or criminal sexual abuse when | 22 | | the victim of such offense is
under 18 years of age. | 23 | | (M) "Terminate" as it relates to a sentence or | 24 | | order of supervision or qualified probation includes | 25 | | either satisfactory or unsatisfactory termination of | 26 | | the sentence, unless otherwise specified in this |
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| 1 | | Section. | 2 | | (2) Minor Traffic Offenses.
Orders of supervision or | 3 | | convictions for minor traffic offenses shall not affect a | 4 | | petitioner's eligibility to expunge or seal records | 5 | | pursuant to this Section. | 6 | | (3) Exclusions. Except as otherwise provided in | 7 | | subsections (b)(5), (b)(6), (e), and (e-5) of this Section, | 8 | | the court shall not order: | 9 | | (A) the sealing or expungement of the records of | 10 | | arrests or charges not initiated by arrest that result | 11 | | in an order of supervision for or conviction of:
(i) | 12 | | any sexual offense committed against a
minor; (ii) | 13 | | Section 11-501 of the Illinois Vehicle Code or a | 14 | | similar provision of a local ordinance; or (iii) | 15 | | Section 11-503 of the Illinois Vehicle Code or a | 16 | | similar provision of a local ordinance, unless the | 17 | | arrest or charge is for a misdemeanor violation of | 18 | | subsection (a) of Section 11-503 or a similar provision | 19 | | of a local ordinance, that occurred prior to the | 20 | | offender reaching the age of 25 years and the offender | 21 | | has no other conviction for violating Section 11-501 or | 22 | | 11-503 of the Illinois Vehicle Code or a similar | 23 | | provision of a local ordinance. | 24 | | (B) the sealing or expungement of records of minor | 25 | | traffic offenses (as defined in subsection (a)(1)(G)), | 26 | | unless the petitioner was arrested and released |
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| 1 | | without charging. | 2 | | (C) the sealing of the records of arrests or | 3 | | charges not initiated by arrest which result in an | 4 | | order of supervision, an order of qualified probation | 5 | | (as defined in subsection (a)(1)(J)), or a conviction | 6 | | for the following offenses: | 7 | | (i) offenses included in Article 11 of the | 8 | | Criminal Code of 1961 or the Criminal Code of 2012 | 9 | | or a similar provision of a local ordinance, except | 10 | | Section 11-14 of the Criminal Code of 1961 or the | 11 | | Criminal Code of 2012, or a similar provision of a | 12 | | local ordinance; | 13 | | (ii) Section 11-1.50, 12-3.4, 12-15, 12-30, | 14 | | 26-5, or 48-1 of the Criminal Code of 1961 or the | 15 | | Criminal Code of 2012, or a similar provision of a | 16 | | local ordinance; | 17 | | (iii) offenses defined as "crimes of violence" | 18 | | in Section 2 of the Crime Victims Compensation Act | 19 | | or a similar provision of a local ordinance; | 20 | | (iv) offenses which are Class A misdemeanors | 21 | | under the Humane Care for Animals Act; or | 22 | | (v) any offense or attempted offense that | 23 | | would subject a person to registration under the | 24 | | Sex Offender Registration Act. | 25 | | (D) the sealing of the records of an arrest which | 26 | | results in
the petitioner being charged with a felony |
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| 1 | | offense or records of a charge not initiated by arrest | 2 | | for a felony offense unless: | 3 | | (i) the charge is amended to a misdemeanor and | 4 | | is otherwise
eligible to be sealed pursuant to | 5 | | subsection (c); | 6 | | (ii) the charge is brought along with another | 7 | | charge as a part of one case and the charge results | 8 | | in acquittal, dismissal, or conviction when the | 9 | | conviction was reversed or vacated, and another | 10 | | charge brought in the same case results in a | 11 | | disposition for a misdemeanor offense that is | 12 | | eligible to be sealed pursuant to subsection (c) or | 13 | | a disposition listed in paragraph (i), (iii), or | 14 | | (iv) of this subsection; | 15 | | (iii) the charge results in first offender | 16 | | probation as set forth in subsection (c)(2)(E); | 17 | | (iv) the charge is for a Class 4 felony offense | 18 | | listed in subsection (c)(2)(F) or the charge is | 19 | | amended to a Class 4 felony offense listed in | 20 | | subsection (c)(2)(F). Records of arrests which | 21 | | result in the petitioner being charged with a Class | 22 | | 4 felony offense listed in subsection (c)(2)(F), | 23 | | records of charges not initiated by arrest for | 24 | | Class 4 felony offenses listed in subsection | 25 | | (c)(2)(F), and records of charges amended to a | 26 | | Class 4 felony offense listed in (c)(2)(F) may be |
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| 1 | | sealed, regardless of the disposition, subject to | 2 | | any waiting periods set forth in subsection | 3 | | (c)(3); | 4 | | (v) the charge results in acquittal, | 5 | | dismissal, or the petitioner's release without | 6 | | conviction; or | 7 | | (vi) the charge results in a conviction, but | 8 | | the conviction was reversed or vacated. | 9 | | (b) Expungement. | 10 | | (1) A petitioner may petition the circuit court to | 11 | | expunge the
records of his or her arrests and charges not | 12 | | initiated by arrest when: | 13 | | (A) He or she has never been convicted of a | 14 | | criminal offense; and | 15 | | (B) Each arrest or charge not initiated by arrest
| 16 | | sought to be expunged resulted in:
(i) acquittal, | 17 | | dismissal, or the petitioner's release without | 18 | | charging, unless excluded by subsection (a)(3)(B);
| 19 | | (ii) a conviction which was vacated or reversed, unless | 20 | | excluded by subsection (a)(3)(B);
(iii) an order of | 21 | | supervision and such supervision was successfully | 22 | | completed by the petitioner, unless excluded by | 23 | | subsection (a)(3)(A) or (a)(3)(B); or
(iv) an order of | 24 | | qualified probation (as defined in subsection | 25 | | (a)(1)(J)) and such probation was successfully | 26 | | completed by the petitioner. |
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| 1 | | (2) Time frame for filing a petition to expunge. | 2 | | (A) When the arrest or charge not initiated by | 3 | | arrest sought to be expunged resulted in an acquittal, | 4 | | dismissal, the petitioner's release without charging, | 5 | | or the reversal or vacation of a conviction, there is | 6 | | no waiting period to petition for the expungement of | 7 | | such records. | 8 | | (B) When the arrest or charge not initiated by | 9 | | arrest
sought to be expunged resulted in an order of | 10 | | supervision, successfully
completed by the petitioner, | 11 | | the following time frames will apply: | 12 | | (i) Those arrests or charges that resulted in | 13 | | orders of
supervision under Section 3-707, 3-708, | 14 | | 3-710, or 5-401.3 of the Illinois Vehicle Code or a | 15 | | similar provision of a local ordinance, or under | 16 | | Section 11-1.50, 12-3.2, or 12-15 of the Criminal | 17 | | Code of 1961 or the Criminal Code of 2012, or a | 18 | | similar provision of a local ordinance, shall not | 19 | | be eligible for expungement until 5 years have | 20 | | passed following the satisfactory termination of | 21 | | the supervision. | 22 | | (i-5) Those arrests or charges that resulted | 23 | | in orders of supervision for a misdemeanor | 24 | | violation of subsection (a) of Section 11-503 of | 25 | | the Illinois Vehicle Code or a similar provision of | 26 | | a local ordinance, that occurred prior to the |
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| 1 | | offender reaching the age of 25 years and the | 2 | | offender has no other conviction for violating | 3 | | Section 11-501 or 11-503 of the Illinois Vehicle | 4 | | Code or a similar provision of a local ordinance | 5 | | shall not be eligible for expungement until the | 6 | | petitioner has reached the age of 25 years. | 7 | | (ii) Those arrests or charges that resulted in | 8 | | orders
of supervision for any other offenses shall | 9 | | not be
eligible for expungement until 2 years have | 10 | | passed
following the satisfactory termination of | 11 | | the supervision. | 12 | | (C) When the arrest or charge not initiated by | 13 | | arrest sought to
be expunged resulted in an order of | 14 | | qualified probation, successfully
completed by the | 15 | | petitioner, such records shall not be eligible for
| 16 | | expungement until 5 years have passed following the | 17 | | satisfactory
termination of the probation. | 18 | | (3) Those records maintained by the Department for
| 19 | | persons arrested prior to their 17th birthday shall be
| 20 | | expunged as provided in Section 5-915 of the Juvenile Court
| 21 | | Act of 1987. | 22 | | (4) Whenever a person has been arrested for or | 23 | | convicted of any
offense, in the name of a person whose | 24 | | identity he or she has stolen or otherwise
come into | 25 | | possession of, the aggrieved person from whom the identity
| 26 | | was stolen or otherwise obtained without authorization,
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| 1 | | upon learning of the person having been arrested using his
| 2 | | or her identity, may, upon verified petition to the chief | 3 | | judge of
the circuit wherein the arrest was made, have a | 4 | | court order
entered nunc pro tunc by the Chief Judge to | 5 | | correct the
arrest record, conviction record, if any, and | 6 | | all official
records of the arresting authority, the | 7 | | Department, other
criminal justice agencies, the | 8 | | prosecutor, and the trial
court concerning such arrest, if | 9 | | any, by removing his or her name
from all such records in | 10 | | connection with the arrest and
conviction, if any, and by | 11 | | inserting in the records the
name of the offender, if known | 12 | | or ascertainable, in lieu of
the aggrieved's name. The | 13 | | records of the circuit court clerk shall be sealed until | 14 | | further order of
the court upon good cause shown and the | 15 | | name of the
aggrieved person obliterated on the official | 16 | | index
required to be kept by the circuit court clerk under
| 17 | | Section 16 of the Clerks of Courts Act, but the order shall
| 18 | | not affect any index issued by the circuit court clerk
| 19 | | before the entry of the order. Nothing in this Section
| 20 | | shall limit the Department of State Police or other
| 21 | | criminal justice agencies or prosecutors from listing
| 22 | | under an offender's name the false names he or she has
| 23 | | used. | 24 | | (5) Whenever a person has been convicted of criminal
| 25 | | sexual assault, aggravated criminal sexual assault,
| 26 | | predatory criminal sexual assault of a child, criminal
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| 1 | | sexual abuse, or aggravated criminal sexual abuse, the
| 2 | | victim of that offense may request that the State's
| 3 | | Attorney of the county in which the conviction occurred
| 4 | | file a verified petition with the presiding trial judge at
| 5 | | the petitioner's trial to have a court order entered to | 6 | | seal
the records of the circuit court clerk in connection
| 7 | | with the proceedings of the trial court concerning that
| 8 | | offense. However, the records of the arresting authority
| 9 | | and the Department of State Police concerning the offense
| 10 | | shall not be sealed. The court, upon good cause shown,
| 11 | | shall make the records of the circuit court clerk in
| 12 | | connection with the proceedings of the trial court
| 13 | | concerning the offense available for public inspection. | 14 | | (6) If a conviction has been set aside on direct review
| 15 | | or on collateral attack and the court determines by clear
| 16 | | and convincing evidence that the petitioner was factually
| 17 | | innocent of the charge, the court shall enter an
| 18 | | expungement order as provided in subsection (b) of Section
| 19 | | 5-5-4 of the Unified Code of Corrections. | 20 | | (7) Nothing in this Section shall prevent the | 21 | | Department of
State Police from maintaining all records of | 22 | | any person who
is admitted to probation upon terms and | 23 | | conditions and who
fulfills those terms and conditions | 24 | | pursuant to Section 10
of the Cannabis Control Act, Section | 25 | | 410 of the Illinois
Controlled Substances Act, Section 70 | 26 | | of the
Methamphetamine Control and Community Protection |
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| 1 | | Act,
Section 5-6-3.3 of the Unified Code of Corrections, | 2 | | Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of | 3 | | the Criminal Code of 1961 or the Criminal Code of 2012, | 4 | | Section 10-102
of the Illinois Alcoholism and Other Drug | 5 | | Dependency Act,
Section 40-10 of the Alcoholism and Other | 6 | | Drug Abuse and
Dependency Act, or Section 10 of the Steroid | 7 | | Control Act. | 8 | | (8) If a petitioner has been granted a certificate of | 9 | | innocence under Section 2-702 of the Code of Civil | 10 | | Procedure, the court that grants the certificate of | 11 | | innocence shall also enter an order expunging the | 12 | | conviction for which the petitioner has been determined to | 13 | | be innocent, notwithstanding the presence of additional | 14 | | felony charges or criminal convictions present on the | 15 | | petitioner's record. Subsection (b) of Section 5-5-4 of the | 16 | | Unified Code of Corrections does not prevent the court from | 17 | | entering the expungement order for a petitioner who has | 18 | | been granted a certificate of innocence under Section 2-702 | 19 | | of the Code of Civil Procedure.
The court shall execute the | 20 | | expungement according to the process established in | 21 | | subsection (h) of Section 2-702 of the Code of Civil | 22 | | Procedure. The procedures established in subsection (d) do | 23 | | not govern or control this paragraph (8). The effect of the | 24 | | order shall be to restore the person to the status he or | 25 | | she occupied prior to the arrest, plea, or conviction for | 26 | | which he or she was determined to be innocent. No person as |
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| 1 | | to whom the order has been entered shall be held | 2 | | thereafter, under any provision of law, to be guilty of | 3 | | perjury or otherwise giving a false statement due to his or | 4 | | her failure to recite or acknowledge the arrest, plea, | 5 | | trial, conviction, or expungement in response to any | 6 | | inquiry made of him or her for any purpose whatsoever. | 7 | | (c) Sealing. | 8 | | (1) Applicability. Notwithstanding any other provision | 9 | | of this Act to the contrary, and cumulative with any rights | 10 | | to expungement of criminal records, this subsection | 11 | | authorizes the sealing of criminal records of adults and of | 12 | | minors prosecuted as adults. | 13 | | (2) Eligible Records. The following records may be | 14 | | sealed: | 15 | | (A) All arrests resulting in release without | 16 | | charging; | 17 | | (B) Arrests or charges not initiated by arrest | 18 | | resulting in acquittal, dismissal, or conviction when | 19 | | the conviction was reversed or vacated, except as | 20 | | excluded by subsection (a)(3)(B); | 21 | | (C) Arrests or charges not initiated by arrest | 22 | | resulting in orders of supervision successfully | 23 | | completed by the petitioner, unless excluded by | 24 | | subsection (a)(3); | 25 | | (D) Arrests or charges not initiated by arrest | 26 | | resulting in convictions unless excluded by subsection |
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| 1 | | (a)(3); | 2 | | (E) Arrests or charges not initiated by arrest | 3 | | resulting in orders of first offender probation under | 4 | | Section 10 of the Cannabis Control Act, Section 410 of | 5 | | the Illinois Controlled Substances Act, Section 70 of | 6 | | the Methamphetamine Control and Community Protection | 7 | | Act, or Section 5-6-3.3 of the Unified Code of | 8 | | Corrections; and | 9 | | (F) Arrests or charges not initiated by arrest | 10 | | resulting in Class 4 felony convictions for the | 11 | | following offenses: | 12 | | (i) Section 11-14 of the Criminal Code of 1961 | 13 | | or the Criminal Code of 2012; | 14 | | (ii) Section 4 of the Cannabis Control Act; | 15 | | (iii) Section 402 of the Illinois Controlled | 16 | | Substances Act; | 17 | | (iv) the Methamphetamine Precursor Control | 18 | | Act; and | 19 | | (v) the Steroid Control Act. | 20 | | (3) When Records Are Eligible to Be Sealed. Records | 21 | | identified as eligible under subsection (c)(2) may be | 22 | | sealed as follows: | 23 | | (A) Records identified as eligible under | 24 | | subsection (c)(2)(A) and (c)(2)(B) may be sealed at any | 25 | | time. | 26 | | (B) Records identified as eligible under |
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| 1 | | subsection (c)(2)(C) may be sealed
(i) 3 years after | 2 | | the termination of petitioner's last sentence (as | 3 | | defined in subsection (a)(1)(F)) if the petitioner has | 4 | | never been convicted of a criminal offense (as defined | 5 | | in subsection (a)(1)(D)); or
(ii) 4 years after the | 6 | | termination of the petitioner's last sentence (as | 7 | | defined in subsection (a)(1)(F)) if the petitioner has | 8 | | ever been convicted of a criminal offense (as defined | 9 | | in subsection (a)(1)(D)). | 10 | | (C) Records identified as eligible under | 11 | | subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be | 12 | | sealed 4 years after the termination of the | 13 | | petitioner's last sentence (as defined in subsection | 14 | | (a)(1)(F)). | 15 | | (D) Records identified in subsection | 16 | | (a)(3)(A)(iii) may be sealed after the petitioner has | 17 | | reached the age of 25 years. | 18 | | (4) Subsequent felony convictions. A person may not | 19 | | have
subsequent felony conviction records sealed as | 20 | | provided in this subsection
(c) if he or she is convicted | 21 | | of any felony offense after the date of the
sealing of | 22 | | prior felony convictions as provided in this subsection | 23 | | (c). The court may, upon conviction for a subsequent felony | 24 | | offense, order the unsealing of prior felony conviction | 25 | | records previously ordered sealed by the court. | 26 | | (5) Notice of eligibility for sealing. Upon entry of a |
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| 1 | | disposition for an eligible record under this subsection | 2 | | (c), the petitioner shall be informed by the court of the | 3 | | right to have the records sealed and the procedures for the | 4 | | sealing of the records. | 5 | | (d) Procedure. The following procedures apply to | 6 | | expungement under subsections (b) and (e), and sealing under | 7 | | subsections (c) and (e-5): | 8 | | (1) Filing the petition. Upon becoming eligible to | 9 | | petition for
the expungement or sealing of records under | 10 | | this Section, the petitioner shall file a petition | 11 | | requesting the expungement
or sealing of records with the | 12 | | clerk of the court where the arrests occurred or the | 13 | | charges were brought, or both. If arrests occurred or | 14 | | charges were brought in multiple jurisdictions, a petition | 15 | | must be filed in each such jurisdiction. The petitioner | 16 | | shall pay the applicable fee, if not waived. | 17 | | (2) Contents of petition. The petition shall be
| 18 | | verified and shall contain the petitioner's name, date of
| 19 | | birth, current address and, for each arrest or charge not | 20 | | initiated by
arrest sought to be sealed or expunged, the | 21 | | case number, the date of
arrest (if any), the identity of | 22 | | the arresting authority, and such
other information as the | 23 | | court may require. During the pendency
of the proceeding, | 24 | | the petitioner shall promptly notify the
circuit court | 25 | | clerk of any change of his or her address. If the | 26 | | petitioner has received a certificate of eligibility for |
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| 1 | | sealing from the Prisoner Review Board under paragraph (10) | 2 | | of subsection (a) of Section 3-3-2 of the Unified Code of | 3 | | Corrections, the certificate shall be attached to the | 4 | | petition. | 5 | | (3) Drug test. The petitioner must attach to the | 6 | | petition proof that the petitioner has passed a test taken | 7 | | within 30 days before the filing of the petition showing | 8 | | the absence within his or her body of all illegal | 9 | | substances as defined by the Illinois Controlled | 10 | | Substances Act, the Methamphetamine Control and Community | 11 | | Protection Act, and the Cannabis Control Act if he or she | 12 | | is petitioning to seal felony records pursuant to clause | 13 | | (c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is | 14 | | petitioning to expunge felony records of a qualified | 15 | | probation pursuant to clause (b)(1)(B)(iv). | 16 | | (4) Service of petition. The circuit court clerk shall | 17 | | promptly
serve a copy of the petition on the State's | 18 | | Attorney or
prosecutor charged with the duty of prosecuting | 19 | | the
offense, the Department of State Police, the arresting
| 20 | | agency and the chief legal officer of the unit of local
| 21 | | 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 basis |
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| 1 | | of the objection. | 2 | | (B) Objections to a petition to expunge or seal | 3 | | must be filed within 60 days of the date of service of | 4 | | the petition. | 5 | | (6) Entry of order. | 6 | | (A) The Chief Judge of the circuit wherein the | 7 | | charge was brought, any judge of that circuit | 8 | | designated by the Chief Judge, or in counties of less | 9 | | than 3,000,000 inhabitants, the presiding trial judge | 10 | | at the petitioner's trial, if any, shall rule on the | 11 | | petition to expunge or seal as set forth in this | 12 | | subsection (d)(6). | 13 | | (B) Unless the State's Attorney or prosecutor, the | 14 | | Department of
State Police, the arresting agency, or | 15 | | the chief legal officer
files an objection to the | 16 | | petition to expunge or seal within 60 days from the | 17 | | date of service of the petition, the court shall enter | 18 | | an order granting or denying the petition. | 19 | | (7) Hearings. If an objection is filed, the court shall | 20 | | set a date for a hearing and notify the petitioner and all | 21 | | parties entitled to notice of the petition of the hearing | 22 | | date at least 30 days prior to the hearing, and shall hear | 23 | | evidence on whether the petition should or should not be | 24 | | granted, and shall grant or deny the petition to expunge or | 25 | | seal the records based on the evidence presented at the | 26 | | hearing. |
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| 1 | | (8) Service of order. After entering an order to | 2 | | expunge or
seal records, the court must provide copies of | 3 | | the order to the
Department, in a form and manner | 4 | | prescribed by the Department,
to the petitioner, to the | 5 | | State's Attorney or prosecutor
charged with the duty of | 6 | | prosecuting the offense, to the
arresting agency, to the | 7 | | chief legal officer of the unit of
local government | 8 | | effecting the arrest, and to such other
criminal justice | 9 | | agencies as may be ordered by the court. | 10 | | (9) Effect of order. | 11 | | (A) Upon entry of an order to expunge records | 12 | | pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: | 13 | | (i) the records shall be expunged (as defined | 14 | | in subsection (a)(1)(E)) by the arresting agency, | 15 | | the Department, and any other agency as ordered by | 16 | | the court, within 60 days of the date of service of | 17 | | the order, unless a motion to vacate, modify, or | 18 | | reconsider the order is filed pursuant to | 19 | | paragraph (12) of subsection (d) of this Section; | 20 | | (ii) the records of the circuit court clerk | 21 | | shall be impounded until further order of the court | 22 | | upon good cause shown and the name of the | 23 | | petitioner obliterated on the official index | 24 | | required to be kept by the circuit court clerk | 25 | | under Section 16 of the Clerks of Courts Act, but | 26 | | the order shall not affect any index issued by the |
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| 1 | | circuit court clerk before the entry of the order; | 2 | | and | 3 | | (iii) in response to an inquiry for expunged | 4 | | records, the court, the Department, or the agency | 5 | | receiving such inquiry, shall reply as it does in | 6 | | response to inquiries when no records ever | 7 | | existed. | 8 | | (B) Upon entry of an order to expunge records | 9 | | pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: | 10 | | (i) the records shall be expunged (as defined | 11 | | in subsection (a)(1)(E)) by the arresting agency | 12 | | and any other agency as ordered by the court, | 13 | | within 60 days of the date of service of the order, | 14 | | unless a motion to vacate, modify, or reconsider | 15 | | the order is filed pursuant to paragraph (12) of | 16 | | subsection (d) of this Section; | 17 | | (ii) the records of the circuit court clerk | 18 | | shall be impounded until further order of the court | 19 | | upon good cause shown and the name of the | 20 | | petitioner obliterated on the official index | 21 | | required to be kept by the circuit court clerk | 22 | | under Section 16 of the Clerks of Courts Act, but | 23 | | the order shall not affect any index issued by the | 24 | | circuit court clerk before the entry of the order; | 25 | | (iii) the records shall be impounded by the
| 26 | | Department within 60 days of the date of service of |
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| 1 | | the order as ordered by the court, unless a motion | 2 | | to vacate, modify, or reconsider the order is filed | 3 | | pursuant to paragraph (12) of subsection (d) of | 4 | | this Section; | 5 | | (iv) records impounded by the Department may | 6 | | be disseminated by the Department only as required | 7 | | by law or to the arresting authority, the State's | 8 | | Attorney, and the court upon a later arrest for the | 9 | | same or a similar offense or for the purpose of | 10 | | sentencing for any subsequent felony, and to the | 11 | | Department of Corrections upon conviction for any | 12 | | offense; and | 13 | | (v) in response to an inquiry for such records | 14 | | from anyone not authorized by law to access such | 15 | | records the court, the Department, or the agency | 16 | | receiving such inquiry shall reply as it does in | 17 | | response to inquiries when no records ever | 18 | | existed. | 19 | | (C) Upon entry of an order to seal records under | 20 | | subsection
(c), the arresting agency, any other agency | 21 | | as ordered by the court, the Department, and the court | 22 | | shall seal the records (as defined in subsection | 23 | | (a)(1)(K)). 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 existed. | 2 | | (10) Fees. The Department may charge the petitioner a | 3 | | fee equivalent to the cost of processing any order to | 4 | | expunge or seal records. Notwithstanding any provision of | 5 | | the Clerks of Courts Act to the contrary, the circuit court | 6 | | clerk may charge a fee equivalent to the cost associated | 7 | | with the sealing or expungement of records by the circuit | 8 | | court clerk. From the total filing fee collected for the | 9 | | petition to seal or expunge, the circuit court clerk shall | 10 | | deposit $10 into the Circuit Court Clerk Operation and | 11 | | Administrative Fund, to be used to offset the costs | 12 | | incurred by the circuit court clerk in performing the | 13 | | additional duties required to serve the petition to seal or | 14 | | expunge on all parties. The circuit court clerk shall | 15 | | collect and forward the Department of State Police portion | 16 | | of the fee to the Department and it shall be deposited in | 17 | | the State Police Services Fund. | 18 | | (11) Final Order. No court order issued under the | 19 | | expungement or sealing provisions of this Section shall | 20 | | become final for purposes of appeal until 30 days after | 21 | | service of the order on the petitioner and all parties | 22 | | entitled to notice of the petition. | 23 | | (12) Motion to Vacate, Modify, or Reconsider. The | 24 | | petitioner or any party entitled to notice may file a | 25 | | motion to vacate, modify, or reconsider the order granting | 26 | | or denying the petition to expunge or seal within 60 days |
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| 1 | | of service of the order. | 2 | | (e) Whenever a person who has been convicted of an offense | 3 | | is granted
a pardon by the Governor which specifically | 4 | | authorizes expungement, he or she may,
upon verified petition | 5 | | to the Chief Judge of the circuit where the person had
been | 6 | | convicted, any judge of the circuit designated by the Chief | 7 | | Judge, or in
counties of less than 3,000,000 inhabitants, the | 8 | | presiding trial judge at the
defendant's trial, have a court | 9 | | order entered expunging the record of
arrest from the official | 10 | | records of the arresting authority and order that the
records | 11 | | of the circuit court clerk and the Department be sealed until
| 12 | | further order of the court upon good cause shown or as | 13 | | otherwise provided
herein, and the name of the defendant | 14 | | obliterated from the official index
requested to be kept by the | 15 | | circuit court clerk under Section 16 of the Clerks
of Courts | 16 | | Act in connection with the arrest and conviction for the | 17 | | offense for
which he or she had been pardoned but the order | 18 | | shall not affect any index issued by
the circuit court clerk | 19 | | before the entry of the order. All records sealed by
the | 20 | | Department may be disseminated by the Department only to the | 21 | | arresting authority, the State's Attorney, and the court upon a | 22 | | later
arrest for the same or similar offense or for the purpose | 23 | | of sentencing for any
subsequent felony. Upon conviction for | 24 | | any subsequent offense, the Department
of Corrections shall | 25 | | have access to all sealed records of the Department
pertaining | 26 | | to that individual. Upon entry of the order of expungement, the
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| 1 | | circuit court clerk shall promptly mail a copy of the order to | 2 | | the
person who was pardoned. | 3 | | (e-5) Whenever a person who has been convicted of an | 4 | | offense is granted a certificate of eligibility for sealing by | 5 | | the Prisoner Review Board which specifically authorizes | 6 | | sealing, he or she may, upon verified petition to the Chief | 7 | | Judge of the circuit where the person had been convicted, any | 8 | | judge of the circuit designated by the Chief Judge, or in | 9 | | counties of less than 3,000,000 inhabitants, the presiding | 10 | | trial judge at the petitioner's trial, have a court order | 11 | | entered sealing the record of arrest from the official records | 12 | | of the arresting authority and order that the records of the | 13 | | circuit court clerk and the Department be sealed until further | 14 | | order of the court upon good cause shown or as otherwise | 15 | | provided herein, and the name of the petitioner obliterated | 16 | | from the official index requested to be kept by the circuit | 17 | | court clerk under Section 16 of the Clerks of Courts Act in | 18 | | connection with the arrest and conviction for the offense for | 19 | | which he or she had been granted the certificate but the order | 20 | | shall not affect any index issued by the circuit court clerk | 21 | | before the entry of the order. All records sealed by the | 22 | | Department may be disseminated by the Department only as | 23 | | required by this Act or to the arresting authority, a law | 24 | | enforcement agency, the State's Attorney, and the court upon a | 25 | | later arrest for the same or similar offense or for the purpose | 26 | | of sentencing for any subsequent felony. Upon conviction for |
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| 1 | | any subsequent offense, the Department of Corrections shall | 2 | | have access to all sealed records of the Department pertaining | 3 | | to that individual. Upon entry of the order of sealing, the | 4 | | circuit court clerk shall promptly mail a copy of the order to | 5 | | the person who was granted the certificate of eligibility for | 6 | | sealing. | 7 | | (f) Subject to available funding, the Illinois Department
| 8 | | of Corrections shall conduct a study of the impact of sealing,
| 9 | | especially on employment and recidivism rates, utilizing a
| 10 | | random sample of those who apply for the sealing of their
| 11 | | criminal records under Public Act 93-211. At the request of the
| 12 | | Illinois Department of Corrections, records of the Illinois
| 13 | | Department of Employment Security shall be utilized as
| 14 | | appropriate to assist in the study. The study shall not
| 15 | | disclose any data in a manner that would allow the
| 16 | | identification of any particular individual or employing unit.
| 17 | | The study shall be made available to the General Assembly no
| 18 | | later than September 1, 2010.
| 19 | | (Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10; | 20 | | 96-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff. | 21 | | 7-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443, | 22 | | eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13; | 23 | | 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff. | 24 | | 1-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.) | 25 | | Section 10. The Unified Code of Corrections is amended by |
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| 1 | | changing Section 5-5-4 as follows:
| 2 | | (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
| 3 | | Sec. 5-5-4. Resentences.
| 4 | | (a) Where a conviction or sentence has been set aside on | 5 | | direct review
or on collateral attack, the court shall not | 6 | | impose a new sentence for the same
offense or for a different | 7 | | offense based on the same conduct which is more
severe than the | 8 | | prior sentence less the portion of the prior sentence
| 9 | | previously satisfied unless the more severe sentence is based | 10 | | upon conduct
on the part of the defendant occurring after the | 11 | | original sentencing.
If a sentence is vacated on appeal or on | 12 | | collateral attack due to the
failure of the trier of fact at | 13 | | trial to determine beyond a reasonable doubt
the existence of a | 14 | | fact (other than a prior conviction) necessary to increase
the
| 15 | | punishment for the offense beyond the statutory maximum | 16 | | otherwise applicable,
either the defendant may be re-sentenced | 17 | | to a term within the range otherwise
provided or, if the State | 18 | | files notice of its intention to again seek the
extended | 19 | | sentence, the defendant shall be afforded a new trial.
| 20 | | (b) If a conviction or sentence has been set aside on | 21 | | direct review or on
collateral attack and
the court determines | 22 | | by clear and convincing evidence that the defendant was
| 23 | | factually innocent of the
charge, excluding where the court has | 24 | | granted the defendant a certificate of innocence and an | 25 | | expungement under Section 2-702 of the Code of Civil Procedure, |
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| 1 | | the court shall enter an order expunging the record of arrest | 2 | | from the
official records of the
arresting authority and order | 3 | | that the records of the clerk of the circuit
court and | 4 | | Department of
State Police be sealed until further order of the | 5 | | court upon good cause shown
or as otherwise provided
herein, | 6 | | and the name of the defendant obliterated from the official | 7 | | index
requested to be kept by the
circuit court clerk under | 8 | | Section 16 of the Clerks of Courts Act in connection
with the | 9 | | arrest and
conviction for the offense but the order shall not | 10 | | affect any index issued by
the circuit court clerk before the | 11 | | entry of the order.
| 12 | | All records sealed by the Department of State Police may be
| 13 | | disseminated by the Department only as required by law or to | 14 | | the arresting
authority, the State's Attorney, the court upon a | 15 | | later arrest for the same or
similar offense, or for the | 16 | | purpose of sentencing for any subsequent felony.
Upon | 17 | | conviction for any subsequent offense, the Department of | 18 | | Corrections shall
have access to all sealed records of the | 19 | | Department
pertaining to that individual.
| 20 | | Upon entry of the order of expungement, the clerk of the | 21 | | circuit court shall
promptly mail a copy of the order to the | 22 | | person whose records were expunged and
sealed.
| 23 | | (Source: P.A. 93-210, eff. 7-18-03.)
| 24 | | Section 15. The Code of Civil Procedure is amended by | 25 | | changing Section 2-702 as follows: |
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| 1 | | (735 ILCS 5/2-702) | 2 | | Sec. 2-702. Petition for a certificate of innocence that | 3 | | the petitioner was innocent of all offenses for which he or she | 4 | | was incarcerated. | 5 | | (a) The General Assembly finds and declares that innocent | 6 | | persons who have been wrongly convicted of crimes in Illinois | 7 | | and subsequently imprisoned have been frustrated in seeking | 8 | | legal redress due to a variety of substantive and technical | 9 | | obstacles in the law and that such persons should have an | 10 | | available avenue to obtain a finding of innocence so that they | 11 | | may obtain relief through a petition in the Court of Claims. | 12 | | The General Assembly further finds misleading the current legal | 13 | | nomenclature which compels an innocent person to seek a pardon | 14 | | for being wrongfully incarcerated. It is the intent of the | 15 | | General Assembly that the court, in exercising its discretion | 16 | | as permitted by law regarding the weight and admissibility of | 17 | | evidence submitted pursuant to this Section, shall, in the | 18 | | interest of justice, give due consideration to difficulties of | 19 | | proof caused by the passage of time, the death or | 20 | | unavailability of witnesses, the destruction of evidence or | 21 | | other factors not caused by such persons or those acting on | 22 | | their behalf. | 23 | | (b) Any person convicted and subsequently imprisoned for | 24 | | one or more felonies by the State of Illinois which he or she | 25 | | did not commit may, under the conditions hereinafter provided, |
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| 1 | | file a petition for certificate of innocence in the circuit | 2 | | court of the county in which the person was convicted. The | 3 | | petition shall request a certificate of innocence finding that | 4 | | the petitioner was innocent of all offenses for which he or she | 5 | | was incarcerated. | 6 | | (c) In order to present the claim for certificate of | 7 | | innocence of an unjust conviction and imprisonment, the | 8 | | petitioner must attach to his or her petition documentation | 9 | | demonstrating that: | 10 | | (1) he or she has been convicted of one or more | 11 | | felonies by the State of Illinois and subsequently | 12 | | sentenced to a term of imprisonment, and has served all or | 13 | | any part of the sentence; and | 14 | | (2) his or her judgment of conviction was reversed or | 15 | | vacated, and the indictment or information dismissed or, if | 16 | | a new trial was ordered, either he or she was found not | 17 | | guilty at the new trial or he or she was not retried and | 18 | | the indictment or information dismissed; or the statute, or | 19 | | application thereof, on which the indictment or | 20 | | information was based violated the Constitution of the | 21 | | United States or the State of Illinois; and | 22 | | (3) his or her claim is not time barred by the | 23 | | provisions of subsection (i) of this Section. | 24 | | (d) The petition shall state facts in sufficient detail to | 25 | | permit the court to find that the petitioner is likely to | 26 | | succeed at trial in proving that the petitioner is innocent of |
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| 1 | | the offenses charged in the indictment or information or his or | 2 | | her acts or omissions charged in the indictment or information | 3 | | did not constitute a felony or misdemeanor against the State of | 4 | | Illinois, and the petitioner did not by his or her own conduct | 5 | | voluntarily cause or bring about his or her conviction. The | 6 | | petition shall be verified by the petitioner. | 7 | | (e) A copy of the petition shall be served on the Attorney | 8 | | General and the State's Attorney of the county where the | 9 | | conviction was had. The Attorney General and the State's | 10 | | Attorney of the county where the conviction was had shall have | 11 | | the right to intervene as parties. | 12 | | (f) In any hearing seeking a certificate of innocence, the | 13 | | court may take judicial notice of prior sworn testimony or | 14 | | evidence admitted in the criminal proceedings related to the | 15 | | convictions which resulted in the alleged wrongful | 16 | | incarceration, if the petitioner was either represented by | 17 | | counsel at such prior proceedings or the right to counsel was | 18 | | knowingly waived. | 19 | | (g) In order to obtain a certificate of innocence the | 20 | | petitioner must prove by a preponderance of evidence that: | 21 | | (1) the petitioner was convicted of one or more | 22 | | felonies by the State of Illinois and subsequently | 23 | | sentenced to a term of imprisonment, and has served all or | 24 | | any part of the sentence; | 25 | | (2)(A) the judgment of conviction was reversed or | 26 | | vacated, and the indictment or information dismissed or, if |
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| 1 | | a new trial was ordered, either the petitioner was found | 2 | | not guilty at the new trial or the petitioner was not | 3 | | retried and the indictment or information dismissed; or (B) | 4 | | the statute, or application thereof, on which the | 5 | | indictment or information was based violated the | 6 | | Constitution of the United States or the State of Illinois; | 7 | | (3) the petitioner is innocent of the offenses charged | 8 | | in the indictment or information or his or her acts or | 9 | | omissions charged in the indictment or information did not | 10 | | constitute a felony or misdemeanor against the State; and | 11 | | (4) the petitioner did not by his or her own conduct
| 12 | | voluntarily cause or bring about his or her conviction. | 13 | | (h) If the court finds that the petitioner is entitled to a
| 14 | | judgment, it shall enter a certificate of innocence finding | 15 | | that
the petitioner was innocent of all offenses for which he | 16 | | or she was incarcerated. Upon entry of the certificate of | 17 | | innocence or pardon from the Governor stating that such pardon | 18 | | was issued on the ground of innocence of the crime for which he | 19 | | or she was imprisoned, (1) the clerk of the court shall | 20 | | transmit a copy of the certificate of innocence to the clerk of | 21 | | the Court of Claims, together with the claimant's current | 22 | | address . Upon entry of the certificate of innocence, ; and (2) | 23 | | the court shall enter an order requiring the arresting agency, | 24 | | the Department of State Police, and any other agency as ordered | 25 | | by the court to expunge, as defined by subsection (a)(1)(E) of | 26 | | Section 5.2 of the Criminal Identification Act, the records of |
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| 1 | | arrest and conviction for the offense that the petitioner was | 2 | | found to be innocent, within 60 days of the date of service. | 3 | | The order shall also expunging or sealing the record of arrest | 4 | | from the
official records of the
arresting authority and order | 5 | | that the records of the clerk of the circuit
court regarding | 6 | | the arrest and conviction for the offense be impounded and | 7 | | Department of
State Police be sealed until further order of the | 8 | | court upon good cause shown
or as otherwise provided
herein, | 9 | | and the name of the defendant obliterated from the official | 10 | | index
requested to be kept by the
circuit court clerk under | 11 | | Section 16 of the Clerks of Courts Act in connection
with the | 12 | | arrest and
conviction for the offense but the order shall not | 13 | | affect any index issued by
the circuit court clerk before the | 14 | | entry of the order. If a person is pardoned by the Governor | 15 | | based on the grounds of innocence for the crime for which he or | 16 | | she was imprisoned, the individual must file for an expungement | 17 | | as provided in Section 5.2 of the Criminal Identification Act. | 18 | | (i) Any person seeking a certificate of innocence under | 19 | | this
Section based on the dismissal of an indictment or | 20 | | information
or acquittal that occurred before the effective | 21 | | date of this
amendatory Act of the 95th General Assembly shall | 22 | | file his or
her petition within 2 years after the effective | 23 | | date of this
amendatory Act of the 95th General Assembly. Any | 24 | | person seeking
a certificate of innocence under this Section | 25 | | based on the
dismissal of an indictment or information or | 26 | | acquittal that
occurred on or after the effective date of this |
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| 1 | | amendatory Act
of the 95th General Assembly shall file his or | 2 | | her petition
within 2 years after the dismissal. | 3 | | (j) The decision to grant or deny a certificate of | 4 | | innocence shall be binding only with respect to claims filed in | 5 | | the Court of Claims and shall not have a res judicata effect on | 6 | | any other proceedings.
| 7 | | (Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11 .) |
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