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90_HB0140
720 ILCS 5/24-1.1 from Ch. 38, par. 24-1.1
730 ILCS 5/5-5-3 from Ch. 38, par. 1005-5-3
Amends the Criminal Code of 1961. Provides that the
unlawful use of weapons by a person convicted of a felony who
is not confined in a penal institution is a Class 2 felony
(now a Class 3 felony). Amends the Unified Code of
Corrections. Makes the offense of the unlawful use of
weapons by a person who has been convicted of a felony
nonprobationable.
LRB9000499RCks
LRB9000499RCks
1 AN ACT in relation to the penalties for unlawful use or
2 possession of weapons by felons or persons in the custody of
3 the Department of Corrections facilities, amending named
4 Acts.
5 Be it enacted by the People of the State of Illinois,
6 represented in the General Assembly:
7 Section 5. The Criminal Code of 1961 is amended by
8 changing Section 24-1.1 as follows:
9 (720 ILCS 5/24-1.1) (from Ch. 38, par. 24-1.1)
10 Sec. 24-1.1. Unlawful Use or Possession of Weapons by
11 Felons or Persons in the Custody of the Department of
12 Corrections Facilities.
13 (a) It is unlawful for a person to knowingly possess on
14 or about his person or on his land or in his own abode or
15 fixed place of business any weapon prohibited under Section
16 24-1 of this Act or any firearm or any firearm ammunition if
17 the person has been convicted of a felony under the laws of
18 this State or any other jurisdiction. This Section shall not
19 apply if the person has been granted relief by the Director
20 of the Department of State Police under Section 10 of the
21 Firearm Owners Identification Card Act.
22 (b) It is unlawful for any person confined in a penal
23 institution, which is a facility of the Illinois Department
24 of Corrections, to possess any weapon prohibited under
25 Section 24-1 of this Code or any firearm or firearm
26 ammunition, regardless of the intent with which he possesses
27 it.
28 (c) It shall be an affirmative defense to a violation of
29 subsection (b), that such possession was specifically
30 authorized by rule, regulation, or directive of the Illinois
31 Department of Corrections or order issued pursuant thereto.
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1 (d) The defense of necessity is not available to a
2 person who is charged with a violation of subsection (b) of
3 this Section.
4 (e) Sentence. Violation of this Section by a person not
5 confined in a penal institution shall be a Class 2 3 felony.
6 Any person who violates this Section while confined in a
7 penal institution, which is a facility of the Illinois
8 Department of Corrections, is guilty of a Class 1 felony, if
9 he possesses any weapon prohibited under Section 24-1 of this
10 Code regardless of the intent with which he possesses it, and
11 a Class X felony if he possesses any firearm, firearm
12 ammunition or explosive.
13 (Source: P.A. 88-300.)
14 Section 10. The Unified Code of Corrections is amended
15 by changing Section 5-5-3 as follows:
16 (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
17 (Text of Section before amendment by P.A. 89-507 and
18 89-688)
19 Sec. 5-5-3. Disposition.
20 (a) Every person convicted of an offense shall be
21 sentenced as provided in this Section.
22 (b) The following options shall be appropriate
23 dispositions, alone or in combination, for all felonies and
24 misdemeanors other than those identified in subsection (c) of
25 this Section:
26 (1) A period of probation.
27 (2) A term of periodic imprisonment.
28 (3) A term of conditional discharge.
29 (4) A term of imprisonment.
30 (5) An order directing the offender to clean up and
31 repair the damage, if the offender was convicted under
32 paragraph (h) of Section 21-1 of the Criminal Code of
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1 1961.
2 (6) A fine.
3 (7) An order directing the offender to make
4 restitution to the victim under Section 5-5-6 of this
5 Code.
6 (8) A sentence of participation in a county impact
7 incarceration program under Section 5-8-1.2 of this Code.
8 Whenever an individual is sentenced for an offense based
9 upon an arrest for a violation of Section 11-501 of the
10 Illinois Vehicle Code, or a similar provision of a local
11 ordinance, and the professional evaluation recommends
12 remedial or rehabilitative treatment or education, neither
13 the treatment nor the education shall be the sole disposition
14 and either or both may be imposed only in conjunction with
15 another disposition. The court shall monitor compliance with
16 any remedial education or treatment recommendations contained
17 in the professional evaluation. Programs conducting alcohol
18 or other drug evaluation or remedial education must be
19 licensed by the Department of Alcoholism and Substance Abuse.
20 However, if the individual is not a resident of Illinois, the
21 court may accept an alcohol or other drug evaluation or
22 remedial education program in the state of such individual's
23 residence. Programs providing treatment must be licensed
24 under existing applicable alcoholism and drug treatment
25 licensure standards.
26 In addition to any other fine or penalty required by law,
27 any individual convicted of a violation of Section 11-501 of
28 the Illinois Vehicle Code or a similar provision of local
29 ordinance, whose operation of a motor vehicle while in
30 violation of Section 11-501 or such ordinance proximately
31 caused an incident resulting in an appropriate emergency
32 response, shall be required to make restitution to a public
33 agency for the costs of that emergency response. Such
34 restitution shall not exceed $500 per public agency for each
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1 such emergency response. For the purpose of this paragraph,
2 emergency response shall mean any incident requiring a
3 response by: a police officer as defined under Section 1-162
4 of the Illinois Vehicle Code; a fireman carried on the rolls
5 of a regularly constituted fire department; and an ambulance
6 as defined under Section 4.05 of the Emergency Medical
7 Services (EMS) Systems Act.
8 Neither a fine nor restitution shall be the sole
9 disposition for a felony and either or both may be imposed
10 only in conjunction with another disposition.
11 (c) (1) When a defendant is found guilty of first degree
12 murder the State may either seek a sentence of
13 imprisonment under Section 5-8-1 of this Code, or where
14 appropriate seek a sentence of death under Section 9-1 of
15 the Criminal Code of 1961.
16 (2) A period of probation, a term of periodic
17 imprisonment or conditional discharge shall not be
18 imposed for the following offenses. The court shall
19 sentence the offender to not less than the minimum term
20 of imprisonment set forth in this Code for the following
21 offenses, and may order a fine or restitution or both in
22 conjunction with such term of imprisonment:
23 (A) First degree murder where the death
24 penalty is not imposed.
25 (B) Attempted first degree murder.
26 (C) A Class X felony.
27 (D) A violation of Section 401.1 or 407 of the
28 Illinois Controlled Substances Act, or a violation
29 of subdivision (c)(2) of Section 401 of that Act
30 which relates to more than 5 grams of a substance
31 containing cocaine or an analog thereof.
32 (E) A violation of Section 5.1 or 9 of the
33 Cannabis Control Act.
34 (F) A Class 2 or greater felony if the
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1 offender had been convicted of a Class 2 or greater
2 felony within 10 years of the date on which he
3 committed the offense for which he is being
4 sentenced.
5 (G) Residential burglary.
6 (H) Criminal sexual assault, except as
7 otherwise provided in subsection (e) of this
8 Section.
9 (I) Aggravated battery of a senior citizen.
10 (J) A forcible felony if the offense was
11 related to the activities of an organized gang.
12 Before July 1, 1994, for the purposes of this
13 paragraph, "organized gang" means an association of
14 5 or more persons, with an established hierarchy,
15 that encourages members of the association to
16 perpetrate crimes or provides support to the members
17 of the association who do commit crimes.
18 Beginning July 1, 1994, for the purposes of
19 this paragraph, "organized gang" has the meaning
20 ascribed to it in Section 10 of the Illinois
21 Streetgang Terrorism Omnibus Prevention Act.
22 (K) Vehicular hijacking.
23 (L) A second or subsequent conviction for the
24 offense of hate crime when the underlying offense
25 upon which the hate crime is based is felony
26 aggravated assault or felony mob action.
27 (M) A second or subsequent conviction for the
28 offense of institutional vandalism if the damage to
29 the property exceeds $300.
30 (N) A Class 3 felony violation of paragraph
31 (1) of subsection (a) of Section 2 of the Firearm
32 Owners Identification Card Act.
33 (O) A violation of Section 12-6.1 of the
34 Criminal Code of 1961.
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1 (P) A violation of Section 24-1.1 of the
2 Criminal Code of 1961.
3 (3) A minimum term of imprisonment of not less than
4 48 consecutive hours or 100 hours of community service as
5 may be determined by the court shall be imposed for a
6 second or subsequent violation committed within 5 years
7 of a previous violation of Section 11-501 of the Illinois
8 Vehicle Code or a similar provision of a local ordinance.
9 (4) A minimum term of imprisonment of not less than
10 7 consecutive days or 30 days of community service shall
11 be imposed for a violation of paragraph (c) of Section
12 6-303 of the Illinois Vehicle Code.
13 (4.1) A minimum term of 30 consecutive days of
14 imprisonment, 40 days of 24 hour periodic imprisonment or
15 720 hours of community service, as may be determined by
16 the court, shall be imposed for a violation of Section
17 11-501 of the Illinois Vehicle Code during a period in
18 which the defendant's driving privileges are revoked or
19 suspended, where the revocation or suspension was for a
20 violation of Section 11-501 or Section 11-501.1 of that
21 Code.
22 (5) The court may sentence an offender convicted of
23 a business offense or a petty offense or a corporation or
24 unincorporated association convicted of any offense to:
25 (A) a period of conditional discharge;
26 (B) a fine;
27 (C) make restitution to the victim under
28 Section 5-5-6 of this Code.
29 (6) In no case shall an offender be eligible for a
30 disposition of probation or conditional discharge for a
31 Class 1 felony committed while he was serving a term of
32 probation or conditional discharge for a felony.
33 (7) When a defendant is adjudged a habitual
34 criminal under Article 33B of the Criminal Code of 1961,
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1 the court shall sentence the defendant to a term of
2 natural life imprisonment.
3 (8) When a defendant, over the age of 21 years, is
4 convicted of a Class 1 or Class 2 felony, after having
5 twice been convicted of any Class 2 or greater Class
6 felonies in Illinois, and such charges are separately
7 brought and tried and arise out of different series of
8 acts, such defendant shall be sentenced as a Class X
9 offender. This paragraph shall not apply unless (1) the
10 first felony was committed after the effective date of
11 this amendatory Act of 1977; and (2) the second felony
12 was committed after conviction on the first; and (3) the
13 third felony was committed after conviction on the
14 second.
15 (9) A defendant convicted of a second or subsequent
16 offense of ritualized abuse of a child may be sentenced
17 to a term of natural life imprisonment.
18 (10) Beginning July 1, 1994, unless sentencing
19 under Section 33B-1 is applicable, a term of imprisonment
20 of not less than 15 years nor more than 50 years shall be
21 imposed on a defendant who violates Section 33A-2 of the
22 Criminal Code of 1961 with a firearm, when that person
23 has been convicted in any state or federal court of 3 or
24 more of the following offenses: treason, first degree
25 murder, second degree murder, aggravated criminal sexual
26 assault, criminal sexual assault, robbery, burglary,
27 arson, kidnaping, aggravated battery resulting in great
28 bodily harm or permanent disability or disfigurement, or
29 a violation of Section 401(a) of the Illinois Controlled
30 Substances Act, when the third offense was committed
31 after conviction on the second, the second offense was
32 committed after conviction on the first, and the
33 violation of Section 33A-2 of the Criminal Code of 1961
34 was committed after conviction on the third.
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1 (11) Beginning July 1, 1994, a term of imprisonment
2 of not less than 10 years and not more than 30 years
3 shall be imposed on a defendant who violates Section
4 33A-2 with a Category I weapon where the offense was
5 committed in any school, or any conveyance owned, leased,
6 or contracted by a school to transport students to or
7 from school or a school related activity, on the real
8 property comprising any school or public park, and where
9 the offense was related to the activities of an organized
10 gang. For the purposes of this paragraph (11),
11 "organized gang" has the meaning ascribed to it in
12 Section 10 of the Illinois Streetgang Terrorism Omnibus
13 Prevention Act.
14 (d) In any case in which a sentence originally imposed
15 is vacated, the case shall be remanded to the trial court.
16 The trial court shall hold a hearing under Section 5-4-1 of
17 the Unified Code of Corrections which may include evidence of
18 the defendant's life, moral character and occupation during
19 the time since the original sentence was passed. The trial
20 court shall then impose sentence upon the defendant. The
21 trial court may impose any sentence which could have been
22 imposed at the original trial subject to Section 5-5-4 of the
23 Unified Code of Corrections.
24 (e) In cases where prosecution for criminal sexual
25 assault or aggravated criminal sexual abuse under Section
26 12-13 or 12-16 of the Criminal Code of 1961 results in
27 conviction of a defendant who was a family member of the
28 victim at the time of the commission of the offense, the
29 court shall consider the safety and welfare of the victim and
30 may impose a sentence of probation only where:
31 (1) the court finds (A) or (B) or both are
32 appropriate:
33 (A) the defendant is willing to undergo a
34 court approved counseling program for a minimum
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1 duration of 2 years; or
2 (B) the defendant is willing to participate in
3 a court approved plan including but not limited to
4 the defendant's:
5 (i) removal from the household;
6 (ii) restricted contact with the victim;
7 (iii) continued financial support of the
8 family;
9 (iv) restitution for harm done to the
10 victim; and
11 (v) compliance with any other measures
12 that the court may deem appropriate; and
13 (2) the court orders the defendant to pay for the
14 victim's counseling services, to the extent that the
15 court finds, after considering the defendant's income and
16 assets, that the defendant is financially capable of
17 paying for such services, if the victim was under 18
18 years of age at the time the offense was committed and
19 requires counseling as a result of the offense.
20 Probation may be revoked or modified pursuant to Section
21 5-6-4; except where the court determines at the hearing that
22 the defendant violated a condition of his or her probation
23 restricting contact with the victim or other family members
24 or commits another offense with the victim or other family
25 members, the court shall revoke the defendant's probation and
26 impose a term of imprisonment.
27 For the purposes of this Section, "family member" and
28 "victim" shall have the meanings ascribed to them in Section
29 12-12 of the Criminal Code of 1961.
30 (f) This Article shall not deprive a court in other
31 proceedings to order a forfeiture of property, to suspend or
32 cancel a license, to remove a person from office, or to
33 impose any other civil penalty.
34 (g) Whenever a defendant is convicted of an offense
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1 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
2 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
3 12-15 or 12-16 of the Criminal Code of 1961, the defendant
4 shall undergo medical testing to determine whether the
5 defendant has any sexually transmissible disease, including a
6 test for infection with human immunodeficiency virus (HIV) or
7 any other identified causative agent of acquired
8 immunodeficiency syndrome (AIDS). Any such medical test
9 shall be performed only by appropriately licensed medical
10 practitioners and may include an analysis of any bodily
11 fluids as well as an examination of the defendant's person.
12 Except as otherwise provided by law, the results of such test
13 shall be kept strictly confidential by all medical personnel
14 involved in the testing and must be personally delivered in a
15 sealed envelope to the judge of the court in which the
16 conviction was entered for the judge's inspection in camera.
17 Acting in accordance with the best interests of the victim
18 and the public, the judge shall have the discretion to
19 determine to whom, if anyone, the results of the testing may
20 be revealed. The court shall notify the defendant of the test
21 results. The court shall also notify the victim if requested
22 by the victim, and if the victim is under the age of 15 and
23 if requested by the victim's parents or legal guardian, the
24 court shall notify the victim's parents or legal guardian of
25 the test results. The court shall provide information on the
26 availability of HIV testing and counseling at Department of
27 Public Health facilities to all parties to whom the results
28 of the testing are revealed and shall direct the State's
29 Attorney to provide the information to the victim when
30 possible. A State's Attorney may petition the court to obtain
31 the results of any HIV test administered under this Section,
32 and the court shall grant the disclosure if the State's
33 Attorney shows it is relevant in order to prosecute a charge
34 of criminal transmission of HIV under Section 12-16.2 of the
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1 Criminal Code of 1961 against the defendant. The court shall
2 order that the cost of any such test shall be paid by the
3 county and may be taxed as costs against the convicted
4 defendant.
5 (g-5) When an inmate is tested for an airborne
6 communicable disease, as determined by the Illinois
7 Department of Public Health including but not limited to
8 tuberculosis, the results of the test shall be personally
9 delivered by the warden or his or her designee in a sealed
10 envelope to the judge of the court in which the inmate must
11 appear for the judge's inspection in camera if requested by
12 the judge. Acting in accordance with the best interests of
13 those in the courtroom, the judge shall have the discretion
14 to determine what if any precautions need to be taken to
15 prevent transmission of the disease in the courtroom.
16 (h) Whenever a defendant is convicted of an offense
17 under Section 1 or 2 of the Hypodermic Syringes and Needles
18 Act, the defendant shall undergo medical testing to determine
19 whether the defendant has been exposed to human
20 immunodeficiency virus (HIV) or any other identified
21 causative agent of acquired immunodeficiency syndrome (AIDS).
22 Except as otherwise provided by law, the results of such test
23 shall be kept strictly confidential by all medical personnel
24 involved in the testing and must be personally delivered in a
25 sealed envelope to the judge of the court in which the
26 conviction was entered for the judge's inspection in camera.
27 Acting in accordance with the best interests of the public,
28 the judge shall have the discretion to determine to whom, if
29 anyone, the results of the testing may be revealed. The court
30 shall notify the defendant of a positive test showing an
31 infection with the human immunodeficiency virus (HIV). The
32 court shall provide information on the availability of HIV
33 testing and counseling at Department of Public Health
34 facilities to all parties to whom the results of the testing
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1 are revealed and shall direct the State's Attorney to provide
2 the information to the victim when possible. A State's
3 Attorney may petition the court to obtain the results of any
4 HIV test administered under this Section, and the court
5 shall grant the disclosure if the State's Attorney shows it
6 is relevant in order to prosecute a charge of criminal
7 transmission of HIV under Section 12-16.2 of the Criminal
8 Code of 1961 against the defendant. The court shall order
9 that the cost of any such test shall be paid by the county
10 and may be taxed as costs against the convicted defendant.
11 (i) All fines and penalties imposed under this Section
12 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
13 Vehicle Code, or a similar provision of a local ordinance,
14 and any violation of the Child Passenger Protection Act, or a
15 similar provision of a local ordinance, shall be collected
16 and disbursed by the circuit clerk as provided under Section
17 27.5 of the Clerks of Courts Act.
18 (j) In cases when prosecution for any violation of
19 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
20 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
21 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
22 12-16 of the Criminal Code of 1961, any violation of the
23 Illinois Controlled Substances Act, or any violation of the
24 Cannabis Control Act results in conviction, a disposition of
25 court supervision, or an order of probation granted under
26 Section 10 of the Cannabis Control Act or Section 410 of the
27 Illinois Controlled Substance Act of a defendant, the court
28 shall determine whether the defendant is employed by a
29 facility or center as defined under the Child Care Act of
30 1969, a public or private elementary or secondary school, or
31 otherwise works with children under 18 years of age on a
32 daily basis. When a defendant is so employed, the court
33 shall order the Clerk of the Court to send a copy of the
34 judgment of conviction or order of supervision or probation
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1 to the defendant's employer by certified mail. If the
2 employer of the defendant is a school, the Clerk of the Court
3 shall direct the mailing of a copy of the judgment of
4 conviction or order of supervision or probation to the
5 appropriate regional superintendent of schools. The regional
6 superintendent of schools shall notify the State Board of
7 Education of any notification under this subsection.
8 (k) A court may not impose a sentence or disposition for
9 a felony or misdemeanor that requires the defendant to be
10 implanted or injected with or to use any form of birth
11 control.
12 (l)(A) Except as provided in paragraph (C) of subsection
13 (l), whenever a defendant, who is an alien as defined by the
14 Immigration and Nationality Act, is convicted of any felony
15 or misdemeanor offense, the court after sentencing the
16 defendant may, upon motion of the State's Attorney, hold
17 sentence in abeyance and remand the defendant to the custody
18 of the Attorney General of the United States or his or her
19 designated agent to be deported when:
20 (1) a final order of deportation has been issued
21 against the defendant pursuant to proceedings under the
22 Immigration and Nationality Act, and
23 (2) the deportation of the defendant would not
24 deprecate the seriousness of the defendant's conduct and
25 would not be inconsistent with the ends of justice.
26 Otherwise, the defendant shall be sentenced as provided
27 in this Chapter V.
28 (B) If the defendant has already been sentenced for a
29 felony or misdemeanor offense, or has been placed on
30 probation under Section 10 of the Cannabis Control Act or
31 Section 410 of the Illinois Controlled Substances Act, the
32 court may, upon motion of the State's Attorney to suspend the
33 sentence imposed, commit the defendant to the custody of the
34 Attorney General of the United States or his or her
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1 designated agent when:
2 (1) a final order of deportation has been issued
3 against the defendant pursuant to proceedings under the
4 Immigration and Nationality Act, and
5 (2) the deportation of the defendant would not
6 deprecate the seriousness of the defendant's conduct and
7 would not be inconsistent with the ends of justice.
8 (C) This subsection (l) does not apply to offenders who
9 are subject to the provisions of paragraph (2) of subsection
10 (a) of Section 3-6-3.
11 (D) Upon motion of the State's Attorney, if a defendant
12 sentenced under this Section returns to the jurisdiction of
13 the United States, the defendant shall be recommitted to the
14 custody of the county from which he or she was sentenced.
15 Thereafter, the defendant shall be brought before the
16 sentencing court, which may impose any sentence that was
17 available under Section 5-5-3 at the time of initial
18 sentencing. In addition, the defendant shall not be eligible
19 for additional good conduct credit for meritorious service as
20 provided under Section 3-6-6.
21 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
22 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
23 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
24 eff. 5-29-96; 89-477, eff. 6-18-96; 89-545, eff. 7-25-96;
25 89-587, eff. 7-31-96; 89-627, eff. 1-1-97; revised 1-7-97.)
26 (Text of Section after amendment by P.A. 89-507 and
27 89-688)
28 Sec. 5-5-3. Disposition.
29 (a) Every person convicted of an offense shall be
30 sentenced as provided in this Section.
31 (b) The following options shall be appropriate
32 dispositions, alone or in combination, for all felonies and
33 misdemeanors other than those identified in subsection (c) of
34 this Section:
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1 (1) A period of probation.
2 (2) A term of periodic imprisonment.
3 (3) A term of conditional discharge.
4 (4) A term of imprisonment.
5 (5) An order directing the offender to clean up and
6 repair the damage, if the offender was convicted under
7 paragraph (h) of Section 21-1 of the Criminal Code of
8 1961.
9 (6) A fine.
10 (7) An order directing the offender to make
11 restitution to the victim under Section 5-5-6 of this
12 Code.
13 (8) A sentence of participation in a county impact
14 incarceration program under Section 5-8-1.2 of this Code.
15 Whenever an individual is sentenced for an offense based
16 upon an arrest for a violation of Section 11-501 of the
17 Illinois Vehicle Code, or a similar provision of a local
18 ordinance, and the professional evaluation recommends
19 remedial or rehabilitative treatment or education, neither
20 the treatment nor the education shall be the sole disposition
21 and either or both may be imposed only in conjunction with
22 another disposition. The court shall monitor compliance with
23 any remedial education or treatment recommendations contained
24 in the professional evaluation. Programs conducting alcohol
25 or other drug evaluation or remedial education must be
26 licensed by the Department of Human Services. However, if
27 the individual is not a resident of Illinois, the court may
28 accept an alcohol or other drug evaluation or remedial
29 education program in the state of such individual's
30 residence. Programs providing treatment must be licensed
31 under existing applicable alcoholism and drug treatment
32 licensure standards.
33 In addition to any other fine or penalty required by law,
34 any individual convicted of a violation of Section 11-501 of
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1 the Illinois Vehicle Code or a similar provision of local
2 ordinance, whose operation of a motor vehicle while in
3 violation of Section 11-501 or such ordinance proximately
4 caused an incident resulting in an appropriate emergency
5 response, shall be required to make restitution to a public
6 agency for the costs of that emergency response. Such
7 restitution shall not exceed $500 per public agency for each
8 such emergency response. For the purpose of this paragraph,
9 emergency response shall mean any incident requiring a
10 response by: a police officer as defined under Section 1-162
11 of the Illinois Vehicle Code; a fireman carried on the rolls
12 of a regularly constituted fire department; and an ambulance
13 as defined under Section 4.05 of the Emergency Medical
14 Services (EMS) Systems Act.
15 Neither a fine nor restitution shall be the sole
16 disposition for a felony and either or both may be imposed
17 only in conjunction with another disposition.
18 (c) (1) When a defendant is found guilty of first degree
19 murder the State may either seek a sentence of
20 imprisonment under Section 5-8-1 of this Code, or where
21 appropriate seek a sentence of death under Section 9-1 of
22 the Criminal Code of 1961.
23 (2) A period of probation, a term of periodic
24 imprisonment or conditional discharge shall not be
25 imposed for the following offenses. The court shall
26 sentence the offender to not less than the minimum term
27 of imprisonment set forth in this Code for the following
28 offenses, and may order a fine or restitution or both in
29 conjunction with such term of imprisonment:
30 (A) First degree murder where the death
31 penalty is not imposed.
32 (B) Attempted first degree murder.
33 (C) A Class X felony.
34 (D) A violation of Section 401.1 or 407 of the
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1 Illinois Controlled Substances Act, or a violation
2 of subdivision (c)(2) of Section 401 of that Act
3 which relates to more than 5 grams of a substance
4 containing cocaine or an analog thereof.
5 (E) A violation of Section 5.1 or 9 of the
6 Cannabis Control Act.
7 (F) A Class 2 or greater felony if the
8 offender had been convicted of a Class 2 or greater
9 felony within 10 years of the date on which he
10 committed the offense for which he is being
11 sentenced.
12 (G) Residential burglary.
13 (H) Criminal sexual assault, except as
14 otherwise provided in subsection (e) of this
15 Section.
16 (I) Aggravated battery of a senior citizen.
17 (J) A forcible felony if the offense was
18 related to the activities of an organized gang.
19 Before July 1, 1994, for the purposes of this
20 paragraph, "organized gang" means an association of
21 5 or more persons, with an established hierarchy,
22 that encourages members of the association to
23 perpetrate crimes or provides support to the members
24 of the association who do commit crimes.
25 Beginning July 1, 1994, for the purposes of
26 this paragraph, "organized gang" has the meaning
27 ascribed to it in Section 10 of the Illinois
28 Streetgang Terrorism Omnibus Prevention Act.
29 (K) Vehicular hijacking.
30 (L) A second or subsequent conviction for the
31 offense of hate crime when the underlying offense
32 upon which the hate crime is based is felony
33 aggravated assault or felony mob action.
34 (M) A second or subsequent conviction for the
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1 offense of institutional vandalism if the damage to
2 the property exceeds $300.
3 (N) A Class 3 felony violation of paragraph
4 (1) of subsection (a) of Section 2 of the Firearm
5 Owners Identification Card Act.
6 (O) A violation of Section 12-6.1 of the
7 Criminal Code of 1961.
8 (P) A violation of Section 24-1.1 of the
9 Criminal Code of 1961.
10 (3) A minimum term of imprisonment of not less than
11 48 consecutive hours or 100 hours of community service as
12 may be determined by the court shall be imposed for a
13 second or subsequent violation committed within 5 years
14 of a previous violation of Section 11-501 of the Illinois
15 Vehicle Code or a similar provision of a local ordinance.
16 (4) A minimum term of imprisonment of not less than
17 7 consecutive days or 30 days of community service shall
18 be imposed for a violation of paragraph (c) of Section
19 6-303 of the Illinois Vehicle Code.
20 (4.1) A minimum term of 30 consecutive days of
21 imprisonment, 40 days of 24 hour periodic imprisonment or
22 720 hours of community service, as may be determined by
23 the court, shall be imposed for a violation of Section
24 11-501 of the Illinois Vehicle Code during a period in
25 which the defendant's driving privileges are revoked or
26 suspended, where the revocation or suspension was for a
27 violation of Section 11-501 or Section 11-501.1 of that
28 Code.
29 (5) The court may sentence an offender convicted of
30 a business offense or a petty offense or a corporation or
31 unincorporated association convicted of any offense to:
32 (A) a period of conditional discharge;
33 (B) a fine;
34 (C) make restitution to the victim under
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1 Section 5-5-6 of this Code.
2 (6) In no case shall an offender be eligible for a
3 disposition of probation or conditional discharge for a
4 Class 1 felony committed while he was serving a term of
5 probation or conditional discharge for a felony.
6 (7) When a defendant is adjudged a habitual
7 criminal under Article 33B of the Criminal Code of 1961,
8 the court shall sentence the defendant to a term of
9 natural life imprisonment.
10 (8) When a defendant, over the age of 21 years, is
11 convicted of a Class 1 or Class 2 felony, after having
12 twice been convicted of any Class 2 or greater Class
13 felonies in Illinois, and such charges are separately
14 brought and tried and arise out of different series of
15 acts, such defendant shall be sentenced as a Class X
16 offender. This paragraph shall not apply unless (1) the
17 first felony was committed after the effective date of
18 this amendatory Act of 1977; and (2) the second felony
19 was committed after conviction on the first; and (3) the
20 third felony was committed after conviction on the
21 second.
22 (9) A defendant convicted of a second or subsequent
23 offense of ritualized abuse of a child may be sentenced
24 to a term of natural life imprisonment.
25 (10) Beginning July 1, 1994, unless sentencing
26 under Section 33B-1 is applicable, a term of imprisonment
27 of not less than 15 years nor more than 50 years shall be
28 imposed on a defendant who violates Section 33A-2 of the
29 Criminal Code of 1961 with a firearm, when that person
30 has been convicted in any state or federal court of 3 or
31 more of the following offenses: treason, first degree
32 murder, second degree murder, aggravated criminal sexual
33 assault, criminal sexual assault, robbery, burglary,
34 arson, kidnaping, aggravated battery resulting in great
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1 bodily harm or permanent disability or disfigurement, or
2 a violation of Section 401(a) of the Illinois Controlled
3 Substances Act, when the third offense was committed
4 after conviction on the second, the second offense was
5 committed after conviction on the first, and the
6 violation of Section 33A-2 of the Criminal Code of 1961
7 was committed after conviction on the third.
8 (11) Beginning July 1, 1994, a term of imprisonment
9 of not less than 10 years and not more than 30 years
10 shall be imposed on a defendant who violates Section
11 33A-2 with a Category I weapon where the offense was
12 committed in any school, or any conveyance owned, leased,
13 or contracted by a school to transport students to or
14 from school or a school related activity, on the real
15 property comprising any school or public park, and where
16 the offense was related to the activities of an organized
17 gang. For the purposes of this paragraph (11),
18 "organized gang" has the meaning ascribed to it in
19 Section 10 of the Illinois Streetgang Terrorism Omnibus
20 Prevention Act.
21 (d) In any case in which a sentence originally imposed
22 is vacated, the case shall be remanded to the trial court.
23 The trial court shall hold a hearing under Section 5-4-1 of
24 the Unified Code of Corrections which may include evidence of
25 the defendant's life, moral character and occupation during
26 the time since the original sentence was passed. The trial
27 court shall then impose sentence upon the defendant. The
28 trial court may impose any sentence which could have been
29 imposed at the original trial subject to Section 5-5-4 of the
30 Unified Code of Corrections.
31 (e) In cases where prosecution for criminal sexual
32 assault or aggravated criminal sexual abuse under Section
33 12-13 or 12-16 of the Criminal Code of 1961 results in
34 conviction of a defendant who was a family member of the
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1 victim at the time of the commission of the offense, the
2 court shall consider the safety and welfare of the victim and
3 may impose a sentence of probation only where:
4 (1) the court finds (A) or (B) or both are
5 appropriate:
6 (A) the defendant is willing to undergo a
7 court approved counseling program for a minimum
8 duration of 2 years; or
9 (B) the defendant is willing to participate in
10 a court approved plan including but not limited to
11 the defendant's:
12 (i) removal from the household;
13 (ii) restricted contact with the victim;
14 (iii) continued financial support of the
15 family;
16 (iv) restitution for harm done to the
17 victim; and
18 (v) compliance with any other measures
19 that the court may deem appropriate; and
20 (2) the court orders the defendant to pay for the
21 victim's counseling services, to the extent that the
22 court finds, after considering the defendant's income and
23 assets, that the defendant is financially capable of
24 paying for such services, if the victim was under 18
25 years of age at the time the offense was committed and
26 requires counseling as a result of the offense.
27 Probation may be revoked or modified pursuant to Section
28 5-6-4; except where the court determines at the hearing that
29 the defendant violated a condition of his or her probation
30 restricting contact with the victim or other family members
31 or commits another offense with the victim or other family
32 members, the court shall revoke the defendant's probation and
33 impose a term of imprisonment.
34 For the purposes of this Section, "family member" and
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1 "victim" shall have the meanings ascribed to them in Section
2 12-12 of the Criminal Code of 1961.
3 (f) This Article shall not deprive a court in other
4 proceedings to order a forfeiture of property, to suspend or
5 cancel a license, to remove a person from office, or to
6 impose any other civil penalty.
7 (g) Whenever a defendant is convicted of an offense
8 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
9 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
10 12-15 or 12-16 of the Criminal Code of 1961, the defendant
11 shall undergo medical testing to determine whether the
12 defendant has any sexually transmissible disease, including a
13 test for infection with human immunodeficiency virus (HIV) or
14 any other identified causative agent of acquired
15 immunodeficiency syndrome (AIDS). Any such medical test
16 shall be performed only by appropriately licensed medical
17 practitioners and may include an analysis of any bodily
18 fluids as well as an examination of the defendant's person.
19 Except as otherwise provided by law, the results of such test
20 shall be kept strictly confidential by all medical personnel
21 involved in the testing and must be personally delivered in a
22 sealed envelope to the judge of the court in which the
23 conviction was entered for the judge's inspection in camera.
24 Acting in accordance with the best interests of the victim
25 and the public, the judge shall have the discretion to
26 determine to whom, if anyone, the results of the testing may
27 be revealed. The court shall notify the defendant of the test
28 results. The court shall also notify the victim if requested
29 by the victim, and if the victim is under the age of 15 and
30 if requested by the victim's parents or legal guardian, the
31 court shall notify the victim's parents or legal guardian of
32 the test results. The court shall provide information on the
33 availability of HIV testing and counseling at Department of
34 Public Health facilities to all parties to whom the results
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1 of the testing are revealed and shall direct the State's
2 Attorney to provide the information to the victim when
3 possible. A State's Attorney may petition the court to obtain
4 the results of any HIV test administered under this Section,
5 and the court shall grant the disclosure if the State's
6 Attorney shows it is relevant in order to prosecute a charge
7 of criminal transmission of HIV under Section 12-16.2 of the
8 Criminal Code of 1961 against the defendant. The court shall
9 order that the cost of any such test shall be paid by the
10 county and may be taxed as costs against the convicted
11 defendant.
12 (g-5) When an inmate is tested for an airborne
13 communicable disease, as determined by the Illinois
14 Department of Public Health including but not limited to
15 tuberculosis, the results of the test shall be personally
16 delivered by the warden or his or her designee in a sealed
17 envelope to the judge of the court in which the inmate must
18 appear for the judge's inspection in camera if requested by
19 the judge. Acting in accordance with the best interests of
20 those in the courtroom, the judge shall have the discretion
21 to determine what if any precautions need to be taken to
22 prevent transmission of the disease in the courtroom.
23 (h) Whenever a defendant is convicted of an offense
24 under Section 1 or 2 of the Hypodermic Syringes and Needles
25 Act, the defendant shall undergo medical testing to determine
26 whether the defendant has been exposed to human
27 immunodeficiency virus (HIV) or any other identified
28 causative agent of acquired immunodeficiency syndrome (AIDS).
29 Except as otherwise provided by law, the results of such test
30 shall be kept strictly confidential by all medical personnel
31 involved in the testing and must be personally delivered in a
32 sealed envelope to the judge of the court in which the
33 conviction was entered for the judge's inspection in camera.
34 Acting in accordance with the best interests of the public,
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1 the judge shall have the discretion to determine to whom, if
2 anyone, the results of the testing may be revealed. The court
3 shall notify the defendant of a positive test showing an
4 infection with the human immunodeficiency virus (HIV). The
5 court shall provide information on the availability of HIV
6 testing and counseling at Department of Public Health
7 facilities to all parties to whom the results of the testing
8 are revealed and shall direct the State's Attorney to provide
9 the information to the victim when possible. A State's
10 Attorney may petition the court to obtain the results of any
11 HIV test administered under this Section, and the court
12 shall grant the disclosure if the State's Attorney shows it
13 is relevant in order to prosecute a charge of criminal
14 transmission of HIV under Section 12-16.2 of the Criminal
15 Code of 1961 against the defendant. The court shall order
16 that the cost of any such test shall be paid by the county
17 and may be taxed as costs against the convicted defendant.
18 (i) All fines and penalties imposed under this Section
19 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
20 Vehicle Code, or a similar provision of a local ordinance,
21 and any violation of the Child Passenger Protection Act, or a
22 similar provision of a local ordinance, shall be collected
23 and disbursed by the circuit clerk as provided under Section
24 27.5 of the Clerks of Courts Act.
25 (j) In cases when prosecution for any violation of
26 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
27 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
28 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
29 12-16 of the Criminal Code of 1961, any violation of the
30 Illinois Controlled Substances Act, or any violation of the
31 Cannabis Control Act results in conviction, a disposition of
32 court supervision, or an order of probation granted under
33 Section 10 of the Cannabis Control Act or Section 410 of the
34 Illinois Controlled Substance Act of a defendant, the court
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1 shall determine whether the defendant is employed by a
2 facility or center as defined under the Child Care Act of
3 1969, a public or private elementary or secondary school, or
4 otherwise works with children under 18 years of age on a
5 daily basis. When a defendant is so employed, the court
6 shall order the Clerk of the Court to send a copy of the
7 judgment of conviction or order of supervision or probation
8 to the defendant's employer by certified mail. If the
9 employer of the defendant is a school, the Clerk of the Court
10 shall direct the mailing of a copy of the judgment of
11 conviction or order of supervision or probation to the
12 appropriate regional superintendent of schools. The regional
13 superintendent of schools shall notify the State Board of
14 Education of any notification under this subsection.
15 (j-5) A defendant at least 17 years of age who is
16 convicted of a felony and who has not been previously
17 convicted of a misdemeanor or felony and who is sentenced to
18 a term of imprisonment in the Illinois Department of
19 Corrections shall as a condition of his or her sentence be
20 required by the court to attend educational courses designed
21 to prepare the defendant for a high school diploma and to
22 work toward a high school diploma or to work toward passing
23 the high school level Test of General Educational Development
24 (GED) or to work toward completing a vocational training
25 program offered by the Department of Corrections. If a
26 defendant fails to complete the educational training required
27 by his or her sentence during the term of incarceration, the
28 Prisoner Review Board shall, as a condition of mandatory
29 supervised release, require the defendant, at his or her own
30 expense, to pursue a course of study toward a high school
31 diploma or passage of the GED test. The Prisoner Review
32 Board shall revoke the mandatory supervised release of a
33 defendant who wilfully fails to comply with this subsection
34 (j-5) upon his or her release from confinement in a penal
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1 institution while serving a mandatory supervised release
2 term; however, the inability of the defendant after making a
3 good faith effort to obtain financial aid or pay for the
4 educational training shall not be deemed a wilful failure to
5 comply. The Prisoner Review Board shall recommit the
6 defendant whose mandatory supervised release term has been
7 revoked under this subsection (j-5) as provided in Section
8 3-3-9. This subsection (j-5) does not apply to a defendant
9 who has a high school diploma or has successfully passed the
10 GED test. This subsection (j-5) does not apply to a defendant
11 who is determined by the court to be developmentally disabled
12 or otherwise mentally incapable of completing the educational
13 or vocational program.
14 (k) A court may not impose a sentence or disposition for
15 a felony or misdemeanor that requires the defendant to be
16 implanted or injected with or to use any form of birth
17 control.
18 (l)(A) Except as provided in paragraph (C) of subsection
19 (l), whenever a defendant, who is an alien as defined by the
20 Immigration and Nationality Act, is convicted of any felony
21 or misdemeanor offense, the court after sentencing the
22 defendant may, upon motion of the State's Attorney, hold
23 sentence in abeyance and remand the defendant to the custody
24 of the Attorney General of the United States or his or her
25 designated agent to be deported when:
26 (1) a final order of deportation has been issued
27 against the defendant pursuant to proceedings under the
28 Immigration and Nationality Act, and
29 (2) the deportation of the defendant would not
30 deprecate the seriousness of the defendant's conduct and
31 would not be inconsistent with the ends of justice.
32 Otherwise, the defendant shall be sentenced as provided
33 in this Chapter V.
34 (B) If the defendant has already been sentenced for a
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1 felony or misdemeanor offense, or has been placed on
2 probation under Section 10 of the Cannabis Control Act or
3 Section 410 of the Illinois Controlled Substances Act, the
4 court may, upon motion of the State's Attorney to suspend the
5 sentence imposed, commit the defendant to the custody of the
6 Attorney General of the United States or his or her
7 designated agent when:
8 (1) a final order of deportation has been issued
9 against the defendant pursuant to proceedings under the
10 Immigration and Nationality Act, and
11 (2) the deportation of the defendant would not
12 deprecate the seriousness of the defendant's conduct and
13 would not be inconsistent with the ends of justice.
14 (C) This subsection (l) does not apply to offenders who
15 are subject to the provisions of paragraph (2) of subsection
16 (a) of Section 3-6-3.
17 (D) Upon motion of the State's Attorney, if a defendant
18 sentenced under this Section returns to the jurisdiction of
19 the United States, the defendant shall be recommitted to the
20 custody of the county from which he or she was sentenced.
21 Thereafter, the defendant shall be brought before the
22 sentencing court, which may impose any sentence that was
23 available under Section 5-5-3 at the time of initial
24 sentencing. In addition, the defendant shall not be eligible
25 for additional good conduct credit for meritorious service as
26 provided under Section 3-6-6.
27 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
28 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
29 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
30 eff. 5-29-96; 89-477, eff. 6-18-96; 89-507, eff. 7-1-97;
31 89-545, eff. 7-25-96; 89-587, eff. 7-31-96; 89-627, eff.
32 1-1-97; 89-688, eff. 6-1-97; revised 1-7-97.)
33 Section 95. No acceleration or delay. Where this Act
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1 makes changes in a statute that is represented in this Act by
2 text that is not yet or no longer in effect (for example, a
3 Section represented by multiple versions), the use of that
4 text does not accelerate or delay the taking effect of (i)
5 the changes made by this Act or (ii) provisions derived from
6 any other Public Act.