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90_HB0140eng
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.
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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 possessing a
5 firearm is a Class 2 felony. by a person not confined in a
6 penal institution shall be a Class 3 felony. Violation of
7 this Section, other than by possessing a firearm, is a Class
8 3 felony. Any person who violates this Section while confined
9 in a penal institution, which is a facility of the Illinois
10 Department of Corrections, is guilty of a Class 1 felony, if
11 he possesses any weapon prohibited under Section 24-1 of this
12 Code regardless of the intent with which he possesses it, and
13 a Class X felony if he possesses any firearm, firearm
14 ammunition or explosive.
15 (Source: P.A. 88-300.)
16 Section 10. The Unified Code of Corrections is amended
17 by changing Section 5-5-3 as follows:
18 (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
19 (Text of Section before amendment by P.A. 89-507 and
20 89-688)
21 Sec. 5-5-3. Disposition.
22 (a) Every person convicted of an offense shall be
23 sentenced as provided in this Section.
24 (b) The following options shall be appropriate
25 dispositions, alone or in combination, for all felonies and
26 misdemeanors other than those identified in subsection (c) of
27 this Section:
28 (1) A period of probation.
29 (2) A term of periodic imprisonment.
30 (3) A term of conditional discharge.
31 (4) A term of imprisonment.
32 (5) An order directing the offender to clean up and
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1 repair the damage, if the offender was convicted under
2 paragraph (h) of Section 21-1 of the Criminal Code of
3 1961.
4 (6) A fine.
5 (7) An order directing the offender to make
6 restitution to the victim under Section 5-5-6 of this
7 Code.
8 (8) A sentence of participation in a county impact
9 incarceration program under Section 5-8-1.2 of this Code.
10 Whenever an individual is sentenced for an offense based
11 upon an arrest for a violation of Section 11-501 of the
12 Illinois Vehicle Code, or a similar provision of a local
13 ordinance, and the professional evaluation recommends
14 remedial or rehabilitative treatment or education, neither
15 the treatment nor the education shall be the sole disposition
16 and either or both may be imposed only in conjunction with
17 another disposition. The court shall monitor compliance with
18 any remedial education or treatment recommendations contained
19 in the professional evaluation. Programs conducting alcohol
20 or other drug evaluation or remedial education must be
21 licensed by the Department of Alcoholism and Substance Abuse.
22 However, if the individual is not a resident of Illinois, the
23 court may accept an alcohol or other drug evaluation or
24 remedial education program in the state of such individual's
25 residence. Programs providing treatment must be licensed
26 under existing applicable alcoholism and drug treatment
27 licensure standards.
28 In addition to any other fine or penalty required by law,
29 any individual convicted of a violation of Section 11-501 of
30 the Illinois Vehicle Code or a similar provision of local
31 ordinance, whose operation of a motor vehicle while in
32 violation of Section 11-501 or such ordinance proximately
33 caused an incident resulting in an appropriate emergency
34 response, shall be required to make restitution to a public
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1 agency for the costs of that emergency response. Such
2 restitution shall not exceed $500 per public agency for each
3 such emergency response. For the purpose of this paragraph,
4 emergency response shall mean any incident requiring a
5 response by: a police officer as defined under Section 1-162
6 of the Illinois Vehicle Code; a fireman carried on the rolls
7 of a regularly constituted fire department; and an ambulance
8 as defined under Section 4.05 of the Emergency Medical
9 Services (EMS) Systems Act.
10 Neither a fine nor restitution shall be the sole
11 disposition for a felony and either or both may be imposed
12 only in conjunction with another disposition.
13 (c) (1) When a defendant is found guilty of first degree
14 murder the State may either seek a sentence of
15 imprisonment under Section 5-8-1 of this Code, or where
16 appropriate seek a sentence of death under Section 9-1 of
17 the Criminal Code of 1961.
18 (2) A period of probation, a term of periodic
19 imprisonment or conditional discharge shall not be
20 imposed for the following offenses. The court shall
21 sentence the offender to not less than the minimum term
22 of imprisonment set forth in this Code for the following
23 offenses, and may order a fine or restitution or both in
24 conjunction with such term of imprisonment:
25 (A) First degree murder where the death
26 penalty is not imposed.
27 (B) Attempted first degree murder.
28 (C) A Class X felony.
29 (D) A violation of Section 401.1 or 407 of the
30 Illinois Controlled Substances Act, or a violation
31 of subdivision (c)(2) of Section 401 of that Act
32 which relates to more than 5 grams of a substance
33 containing cocaine or an analog thereof.
34 (E) A violation of Section 5.1 or 9 of the
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1 Cannabis Control Act.
2 (F) A Class 2 or greater felony if the
3 offender had been convicted of a Class 2 or greater
4 felony within 10 years of the date on which he
5 committed the offense for which he is being
6 sentenced.
7 (G) Residential burglary.
8 (H) Criminal sexual assault, except as
9 otherwise provided in subsection (e) of this
10 Section.
11 (I) Aggravated battery of a senior citizen.
12 (J) A forcible felony if the offense was
13 related to the activities of an organized gang.
14 Before July 1, 1994, for the purposes of this
15 paragraph, "organized gang" means an association of
16 5 or more persons, with an established hierarchy,
17 that encourages members of the association to
18 perpetrate crimes or provides support to the members
19 of the association who do commit crimes.
20 Beginning July 1, 1994, for the purposes of
21 this paragraph, "organized gang" has the meaning
22 ascribed to it in Section 10 of the Illinois
23 Streetgang Terrorism Omnibus Prevention Act.
24 (K) Vehicular hijacking.
25 (L) A second or subsequent conviction for the
26 offense of hate crime when the underlying offense
27 upon which the hate crime is based is felony
28 aggravated assault or felony mob action.
29 (M) A second or subsequent conviction for the
30 offense of institutional vandalism if the damage to
31 the property exceeds $300.
32 (N) A Class 3 felony violation of paragraph
33 (1) of subsection (a) of Section 2 of the Firearm
34 Owners Identification Card Act.
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1 (O) A violation of Section 12-6.1 of the
2 Criminal Code of 1961.
3 (P) A violation of Section 24-1.1 of the
4 Criminal Code of 1961 if the offense involved the
5 possession of a firearm.
6 (3) A minimum term of imprisonment of not less than
7 48 consecutive hours or 100 hours of community service as
8 may be determined by the court shall be imposed for a
9 second or subsequent violation committed within 5 years
10 of a previous violation of Section 11-501 of the Illinois
11 Vehicle Code or a similar provision of a local ordinance.
12 (4) A minimum term of imprisonment of not less than
13 7 consecutive days or 30 days of community service shall
14 be imposed for a violation of paragraph (c) of Section
15 6-303 of the Illinois Vehicle Code.
16 (4.1) A minimum term of 30 consecutive days of
17 imprisonment, 40 days of 24 hour periodic imprisonment or
18 720 hours of community service, as may be determined by
19 the court, shall be imposed for a violation of Section
20 11-501 of the Illinois Vehicle Code during a period in
21 which the defendant's driving privileges are revoked or
22 suspended, where the revocation or suspension was for a
23 violation of Section 11-501 or Section 11-501.1 of that
24 Code.
25 (5) The court may sentence an offender convicted of
26 a business offense or a petty offense or a corporation or
27 unincorporated association convicted of any offense to:
28 (A) a period of conditional discharge;
29 (B) a fine;
30 (C) make restitution to the victim under
31 Section 5-5-6 of this Code.
32 (6) In no case shall an offender be eligible for a
33 disposition of probation or conditional discharge for a
34 Class 1 felony committed while he was serving a term of
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1 probation or conditional discharge for a felony.
2 (7) When a defendant is adjudged a habitual
3 criminal under Article 33B of the Criminal Code of 1961,
4 the court shall sentence the defendant to a term of
5 natural life imprisonment.
6 (8) When a defendant, over the age of 21 years, is
7 convicted of a Class 1 or Class 2 felony, after having
8 twice been convicted of any Class 2 or greater Class
9 felonies in Illinois, and such charges are separately
10 brought and tried and arise out of different series of
11 acts, such defendant shall be sentenced as a Class X
12 offender. This paragraph shall not apply unless (1) the
13 first felony was committed after the effective date of
14 this amendatory Act of 1977; and (2) the second felony
15 was committed after conviction on the first; and (3) the
16 third felony was committed after conviction on the
17 second.
18 (9) A defendant convicted of a second or subsequent
19 offense of ritualized abuse of a child may be sentenced
20 to a term of natural life imprisonment.
21 (10) Beginning July 1, 1994, unless sentencing
22 under Section 33B-1 is applicable, a term of imprisonment
23 of not less than 15 years nor more than 50 years shall be
24 imposed on a defendant who violates Section 33A-2 of the
25 Criminal Code of 1961 with a firearm, when that person
26 has been convicted in any state or federal court of 3 or
27 more of the following offenses: treason, first degree
28 murder, second degree murder, aggravated criminal sexual
29 assault, criminal sexual assault, robbery, burglary,
30 arson, kidnaping, aggravated battery resulting in great
31 bodily harm or permanent disability or disfigurement, or
32 a violation of Section 401(a) of the Illinois Controlled
33 Substances Act, when the third offense was committed
34 after conviction on the second, the second offense was
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1 committed after conviction on the first, and the
2 violation of Section 33A-2 of the Criminal Code of 1961
3 was committed after conviction on the third.
4 (11) Beginning July 1, 1994, a term of imprisonment
5 of not less than 10 years and not more than 30 years
6 shall be imposed on a defendant who violates Section
7 33A-2 with a Category I weapon where the offense was
8 committed in any school, or any conveyance owned, leased,
9 or contracted by a school to transport students to or
10 from school or a school related activity, on the real
11 property comprising any school or public park, and where
12 the offense was related to the activities of an organized
13 gang. For the purposes of this paragraph (11),
14 "organized gang" has the meaning ascribed to it in
15 Section 10 of the Illinois Streetgang Terrorism Omnibus
16 Prevention Act.
17 (d) In any case in which a sentence originally imposed
18 is vacated, the case shall be remanded to the trial court.
19 The trial court shall hold a hearing under Section 5-4-1 of
20 the Unified Code of Corrections which may include evidence of
21 the defendant's life, moral character and occupation during
22 the time since the original sentence was passed. The trial
23 court shall then impose sentence upon the defendant. The
24 trial court may impose any sentence which could have been
25 imposed at the original trial subject to Section 5-5-4 of the
26 Unified Code of Corrections.
27 (e) In cases where prosecution for criminal sexual
28 assault or aggravated criminal sexual abuse under Section
29 12-13 or 12-16 of the Criminal Code of 1961 results in
30 conviction of a defendant who was a family member of the
31 victim at the time of the commission of the offense, the
32 court shall consider the safety and welfare of the victim and
33 may impose a sentence of probation only where:
34 (1) the court finds (A) or (B) or both are
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1 appropriate:
2 (A) the defendant is willing to undergo a
3 court approved counseling program for a minimum
4 duration of 2 years; or
5 (B) the defendant is willing to participate in
6 a court approved plan including but not limited to
7 the defendant's:
8 (i) removal from the household;
9 (ii) restricted contact with the victim;
10 (iii) continued financial support of the
11 family;
12 (iv) restitution for harm done to the
13 victim; and
14 (v) compliance with any other measures
15 that the court may deem appropriate; and
16 (2) the court orders the defendant to pay for the
17 victim's counseling services, to the extent that the
18 court finds, after considering the defendant's income and
19 assets, that the defendant is financially capable of
20 paying for such services, if the victim was under 18
21 years of age at the time the offense was committed and
22 requires counseling as a result of the offense.
23 Probation may be revoked or modified pursuant to Section
24 5-6-4; except where the court determines at the hearing that
25 the defendant violated a condition of his or her probation
26 restricting contact with the victim or other family members
27 or commits another offense with the victim or other family
28 members, the court shall revoke the defendant's probation and
29 impose a term of imprisonment.
30 For the purposes of this Section, "family member" and
31 "victim" shall have the meanings ascribed to them in Section
32 12-12 of the Criminal Code of 1961.
33 (f) This Article shall not deprive a court in other
34 proceedings to order a forfeiture of property, to suspend or
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1 cancel a license, to remove a person from office, or to
2 impose any other civil penalty.
3 (g) Whenever a defendant is convicted of an offense
4 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
5 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
6 12-15 or 12-16 of the Criminal Code of 1961, the defendant
7 shall undergo medical testing to determine whether the
8 defendant has any sexually transmissible disease, including a
9 test for infection with human immunodeficiency virus (HIV) or
10 any other identified causative agent of acquired
11 immunodeficiency syndrome (AIDS). Any such medical test
12 shall be performed only by appropriately licensed medical
13 practitioners and may include an analysis of any bodily
14 fluids as well as an examination of the defendant's person.
15 Except as otherwise provided by law, the results of such test
16 shall be kept strictly confidential by all medical personnel
17 involved in the testing and must be personally delivered in a
18 sealed envelope to the judge of the court in which the
19 conviction was entered for the judge's inspection in camera.
20 Acting in accordance with the best interests of the victim
21 and the public, the judge shall have the discretion to
22 determine to whom, if anyone, the results of the testing may
23 be revealed. The court shall notify the defendant of the test
24 results. The court shall also notify the victim if requested
25 by the victim, and if the victim is under the age of 15 and
26 if requested by the victim's parents or legal guardian, the
27 court shall notify the victim's parents or legal guardian of
28 the test results. The court shall provide information on the
29 availability of HIV testing and counseling at Department of
30 Public Health facilities to all parties to whom the results
31 of the testing are revealed and shall direct the State's
32 Attorney to provide the information to the victim when
33 possible. A State's Attorney may petition the court to obtain
34 the results of any HIV test administered under this Section,
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1 and the court shall grant the disclosure if the State's
2 Attorney shows it is relevant in order to prosecute a charge
3 of criminal transmission of HIV under Section 12-16.2 of the
4 Criminal Code of 1961 against the defendant. The court shall
5 order that the cost of any such test shall be paid by the
6 county and may be taxed as costs against the convicted
7 defendant.
8 (g-5) When an inmate is tested for an airborne
9 communicable disease, as determined by the Illinois
10 Department of Public Health including but not limited to
11 tuberculosis, the results of the test shall be personally
12 delivered by the warden or his or her designee in a sealed
13 envelope to the judge of the court in which the inmate must
14 appear for the judge's inspection in camera if requested by
15 the judge. Acting in accordance with the best interests of
16 those in the courtroom, the judge shall have the discretion
17 to determine what if any precautions need to be taken to
18 prevent transmission of the disease in the courtroom.
19 (h) Whenever a defendant is convicted of an offense
20 under Section 1 or 2 of the Hypodermic Syringes and Needles
21 Act, the defendant shall undergo medical testing to determine
22 whether the defendant has been exposed to human
23 immunodeficiency virus (HIV) or any other identified
24 causative agent of acquired immunodeficiency syndrome (AIDS).
25 Except as otherwise provided by law, the results of such test
26 shall be kept strictly confidential by all medical personnel
27 involved in the testing and must be personally delivered in a
28 sealed envelope to the judge of the court in which the
29 conviction was entered for the judge's inspection in camera.
30 Acting in accordance with the best interests of the public,
31 the judge shall have the discretion to determine to whom, if
32 anyone, the results of the testing may be revealed. The court
33 shall notify the defendant of a positive test showing an
34 infection with the human immunodeficiency virus (HIV). The
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1 court shall provide information on the availability of HIV
2 testing and counseling at Department of Public Health
3 facilities to all parties to whom the results of the testing
4 are revealed and shall direct the State's Attorney to provide
5 the information to the victim when possible. A State's
6 Attorney may petition the court to obtain the results of any
7 HIV test administered under this Section, and the court
8 shall grant the disclosure if the State's Attorney shows it
9 is relevant in order to prosecute a charge of criminal
10 transmission of HIV under Section 12-16.2 of the Criminal
11 Code of 1961 against the defendant. The court shall order
12 that the cost of any such test shall be paid by the county
13 and may be taxed as costs against the convicted defendant.
14 (i) All fines and penalties imposed under this Section
15 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
16 Vehicle Code, or a similar provision of a local ordinance,
17 and any violation of the Child Passenger Protection Act, or a
18 similar provision of a local ordinance, shall be collected
19 and disbursed by the circuit clerk as provided under Section
20 27.5 of the Clerks of Courts Act.
21 (j) In cases when prosecution for any violation of
22 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
23 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
24 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
25 12-16 of the Criminal Code of 1961, any violation of the
26 Illinois Controlled Substances Act, or any violation of the
27 Cannabis Control Act results in conviction, a disposition of
28 court supervision, or an order of probation granted under
29 Section 10 of the Cannabis Control Act or Section 410 of the
30 Illinois Controlled Substance Act of a defendant, the court
31 shall determine whether the defendant is employed by a
32 facility or center as defined under the Child Care Act of
33 1969, a public or private elementary or secondary school, or
34 otherwise works with children under 18 years of age on a
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1 daily basis. When a defendant is so employed, the court
2 shall order the Clerk of the Court to send a copy of the
3 judgment of conviction or order of supervision or probation
4 to the defendant's employer by certified mail. If the
5 employer of the defendant is a school, the Clerk of the Court
6 shall direct the mailing of a copy of the judgment of
7 conviction or order of supervision or probation to the
8 appropriate regional superintendent of schools. The regional
9 superintendent of schools shall notify the State Board of
10 Education of any notification under this subsection.
11 (k) A court may not impose a sentence or disposition for
12 a felony or misdemeanor that requires the defendant to be
13 implanted or injected with or to use any form of birth
14 control.
15 (l)(A) Except as provided in paragraph (C) of subsection
16 (l), whenever a defendant, who is an alien as defined by the
17 Immigration and Nationality Act, is convicted of any felony
18 or misdemeanor offense, the court after sentencing the
19 defendant may, upon motion of the State's Attorney, hold
20 sentence in abeyance and remand the defendant to the custody
21 of the Attorney General of the United States or his or her
22 designated agent to be deported when:
23 (1) a final order of deportation has been issued
24 against the defendant pursuant to proceedings under the
25 Immigration and Nationality Act, and
26 (2) the deportation of the defendant would not
27 deprecate the seriousness of the defendant's conduct and
28 would not be inconsistent with the ends of justice.
29 Otherwise, the defendant shall be sentenced as provided
30 in this Chapter V.
31 (B) If the defendant has already been sentenced for a
32 felony or misdemeanor offense, or has been placed on
33 probation under Section 10 of the Cannabis Control Act or
34 Section 410 of the Illinois Controlled Substances Act, the
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1 court may, upon motion of the State's Attorney to suspend the
2 sentence imposed, commit the defendant to the custody of the
3 Attorney General of the United States or his or her
4 designated agent when:
5 (1) a final order of deportation has been issued
6 against the defendant pursuant to proceedings under the
7 Immigration and Nationality Act, and
8 (2) the deportation of the defendant would not
9 deprecate the seriousness of the defendant's conduct and
10 would not be inconsistent with the ends of justice.
11 (C) This subsection (l) does not apply to offenders who
12 are subject to the provisions of paragraph (2) of subsection
13 (a) of Section 3-6-3.
14 (D) Upon motion of the State's Attorney, if a defendant
15 sentenced under this Section returns to the jurisdiction of
16 the United States, the defendant shall be recommitted to the
17 custody of the county from which he or she was sentenced.
18 Thereafter, the defendant shall be brought before the
19 sentencing court, which may impose any sentence that was
20 available under Section 5-5-3 at the time of initial
21 sentencing. In addition, the defendant shall not be eligible
22 for additional good conduct credit for meritorious service as
23 provided under Section 3-6-6.
24 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
25 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
26 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
27 eff. 5-29-96; 89-477, eff. 6-18-96; 89-545, eff. 7-25-96;
28 89-587, eff. 7-31-96; 89-627, eff. 1-1-97; revised 1-7-97.)
29 (Text of Section after amendment by P.A. 89-507 and
30 89-688)
31 Sec. 5-5-3. Disposition.
32 (a) Every person convicted of an offense shall be
33 sentenced as provided in this Section.
34 (b) The following options shall be appropriate
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1 dispositions, alone or in combination, for all felonies and
2 misdemeanors other than those identified in subsection (c) of
3 this Section:
4 (1) A period of probation.
5 (2) A term of periodic imprisonment.
6 (3) A term of conditional discharge.
7 (4) A term of imprisonment.
8 (5) An order directing the offender to clean up and
9 repair the damage, if the offender was convicted under
10 paragraph (h) of Section 21-1 of the Criminal Code of
11 1961.
12 (6) A fine.
13 (7) An order directing the offender to make
14 restitution to the victim under Section 5-5-6 of this
15 Code.
16 (8) A sentence of participation in a county impact
17 incarceration program under Section 5-8-1.2 of this Code.
18 Whenever an individual is sentenced for an offense based
19 upon an arrest for a violation of Section 11-501 of the
20 Illinois Vehicle Code, or a similar provision of a local
21 ordinance, and the professional evaluation recommends
22 remedial or rehabilitative treatment or education, neither
23 the treatment nor the education shall be the sole disposition
24 and either or both may be imposed only in conjunction with
25 another disposition. The court shall monitor compliance with
26 any remedial education or treatment recommendations contained
27 in the professional evaluation. Programs conducting alcohol
28 or other drug evaluation or remedial education must be
29 licensed by the Department of Human Services. However, if
30 the individual is not a resident of Illinois, the court may
31 accept an alcohol or other drug evaluation or remedial
32 education program in the state of such individual's
33 residence. Programs providing treatment must be licensed
34 under existing applicable alcoholism and drug treatment
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1 licensure standards.
2 In addition to any other fine or penalty required by law,
3 any individual convicted of a violation of Section 11-501 of
4 the Illinois Vehicle Code or a similar provision of local
5 ordinance, whose operation of a motor vehicle while in
6 violation of Section 11-501 or such ordinance proximately
7 caused an incident resulting in an appropriate emergency
8 response, shall be required to make restitution to a public
9 agency for the costs of that emergency response. Such
10 restitution shall not exceed $500 per public agency for each
11 such emergency response. For the purpose of this paragraph,
12 emergency response shall mean any incident requiring a
13 response by: a police officer as defined under Section 1-162
14 of the Illinois Vehicle Code; a fireman carried on the rolls
15 of a regularly constituted fire department; and an ambulance
16 as defined under Section 4.05 of the Emergency Medical
17 Services (EMS) Systems Act.
18 Neither a fine nor restitution shall be the sole
19 disposition for a felony and either or both may be imposed
20 only in conjunction with another disposition.
21 (c) (1) When a defendant is found guilty of first degree
22 murder the State may either seek a sentence of
23 imprisonment under Section 5-8-1 of this Code, or where
24 appropriate seek a sentence of death under Section 9-1 of
25 the Criminal Code of 1961.
26 (2) A period of probation, a term of periodic
27 imprisonment or conditional discharge shall not be
28 imposed for the following offenses. The court shall
29 sentence the offender to not less than the minimum term
30 of imprisonment set forth in this Code for the following
31 offenses, and may order a fine or restitution or both in
32 conjunction with such term of imprisonment:
33 (A) First degree murder where the death
34 penalty is not imposed.
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1 (B) Attempted first degree murder.
2 (C) A Class X felony.
3 (D) A violation of Section 401.1 or 407 of the
4 Illinois Controlled Substances Act, or a violation
5 of subdivision (c)(2) of Section 401 of that Act
6 which relates to more than 5 grams of a substance
7 containing cocaine or an analog thereof.
8 (E) A violation of Section 5.1 or 9 of the
9 Cannabis Control Act.
10 (F) A Class 2 or greater felony if the
11 offender had been convicted of a Class 2 or greater
12 felony within 10 years of the date on which he
13 committed the offense for which he is being
14 sentenced.
15 (G) Residential burglary.
16 (H) Criminal sexual assault, except as
17 otherwise provided in subsection (e) of this
18 Section.
19 (I) Aggravated battery of a senior citizen.
20 (J) A forcible felony if the offense was
21 related to the activities of an organized gang.
22 Before July 1, 1994, for the purposes of this
23 paragraph, "organized gang" means an association of
24 5 or more persons, with an established hierarchy,
25 that encourages members of the association to
26 perpetrate crimes or provides support to the members
27 of the association who do commit crimes.
28 Beginning July 1, 1994, for the purposes of
29 this paragraph, "organized gang" has the meaning
30 ascribed to it in Section 10 of the Illinois
31 Streetgang Terrorism Omnibus Prevention Act.
32 (K) Vehicular hijacking.
33 (L) A second or subsequent conviction for the
34 offense of hate crime when the underlying offense
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1 upon which the hate crime is based is felony
2 aggravated assault or felony mob action.
3 (M) A second or subsequent conviction for the
4 offense of institutional vandalism if the damage to
5 the property exceeds $300.
6 (N) A Class 3 felony violation of paragraph
7 (1) of subsection (a) of Section 2 of the Firearm
8 Owners Identification Card Act.
9 (O) A violation of Section 12-6.1 of the
10 Criminal Code of 1961.
11 (P) A violation of Section 24-1.1 of the
12 Criminal Code of 1961 if the offense involved the
13 possession of a firearm.
14 (3) A minimum term of imprisonment of not less than
15 48 consecutive hours or 100 hours of community service as
16 may be determined by the court shall be imposed for a
17 second or subsequent violation committed within 5 years
18 of a previous violation of Section 11-501 of the Illinois
19 Vehicle Code or a similar provision of a local ordinance.
20 (4) A minimum term of imprisonment of not less than
21 7 consecutive days or 30 days of community service shall
22 be imposed for a violation of paragraph (c) of Section
23 6-303 of the Illinois Vehicle Code.
24 (4.1) A minimum term of 30 consecutive days of
25 imprisonment, 40 days of 24 hour periodic imprisonment or
26 720 hours of community service, as may be determined by
27 the court, shall be imposed for a violation of Section
28 11-501 of the Illinois Vehicle Code during a period in
29 which the defendant's driving privileges are revoked or
30 suspended, where the revocation or suspension was for a
31 violation of Section 11-501 or Section 11-501.1 of that
32 Code.
33 (5) The court may sentence an offender convicted of
34 a business offense or a petty offense or a corporation or
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1 unincorporated association convicted of any offense to:
2 (A) a period of conditional discharge;
3 (B) a fine;
4 (C) make restitution to the victim under
5 Section 5-5-6 of this Code.
6 (6) In no case shall an offender be eligible for a
7 disposition of probation or conditional discharge for a
8 Class 1 felony committed while he was serving a term of
9 probation or conditional discharge for a felony.
10 (7) When a defendant is adjudged a habitual
11 criminal under Article 33B of the Criminal Code of 1961,
12 the court shall sentence the defendant to a term of
13 natural life imprisonment.
14 (8) When a defendant, over the age of 21 years, is
15 convicted of a Class 1 or Class 2 felony, after having
16 twice been convicted of any Class 2 or greater Class
17 felonies in Illinois, and such charges are separately
18 brought and tried and arise out of different series of
19 acts, such defendant shall be sentenced as a Class X
20 offender. This paragraph shall not apply unless (1) the
21 first felony was committed after the effective date of
22 this amendatory Act of 1977; and (2) the second felony
23 was committed after conviction on the first; and (3) the
24 third felony was committed after conviction on the
25 second.
26 (9) A defendant convicted of a second or subsequent
27 offense of ritualized abuse of a child may be sentenced
28 to a term of natural life imprisonment.
29 (10) Beginning July 1, 1994, unless sentencing
30 under Section 33B-1 is applicable, a term of imprisonment
31 of not less than 15 years nor more than 50 years shall be
32 imposed on a defendant who violates Section 33A-2 of the
33 Criminal Code of 1961 with a firearm, when that person
34 has been convicted in any state or federal court of 3 or
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1 more of the following offenses: treason, first degree
2 murder, second degree murder, aggravated criminal sexual
3 assault, criminal sexual assault, robbery, burglary,
4 arson, kidnaping, aggravated battery resulting in great
5 bodily harm or permanent disability or disfigurement, or
6 a violation of Section 401(a) of the Illinois Controlled
7 Substances Act, when the third offense was committed
8 after conviction on the second, the second offense was
9 committed after conviction on the first, and the
10 violation of Section 33A-2 of the Criminal Code of 1961
11 was committed after conviction on the third.
12 (11) Beginning July 1, 1994, a term of imprisonment
13 of not less than 10 years and not more than 30 years
14 shall be imposed on a defendant who violates Section
15 33A-2 with a Category I weapon where the offense was
16 committed in any school, or any conveyance owned, leased,
17 or contracted by a school to transport students to or
18 from school or a school related activity, on the real
19 property comprising any school or public park, and where
20 the offense was related to the activities of an organized
21 gang. For the purposes of this paragraph (11),
22 "organized gang" has the meaning ascribed to it in
23 Section 10 of the Illinois Streetgang Terrorism Omnibus
24 Prevention Act.
25 (d) In any case in which a sentence originally imposed
26 is vacated, the case shall be remanded to the trial court.
27 The trial court shall hold a hearing under Section 5-4-1 of
28 the Unified Code of Corrections which may include evidence of
29 the defendant's life, moral character and occupation during
30 the time since the original sentence was passed. The trial
31 court shall then impose sentence upon the defendant. The
32 trial court may impose any sentence which could have been
33 imposed at the original trial subject to Section 5-5-4 of the
34 Unified Code of Corrections.
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1 (e) In cases where prosecution for criminal sexual
2 assault or aggravated criminal sexual abuse under Section
3 12-13 or 12-16 of the Criminal Code of 1961 results in
4 conviction of a defendant who was a family member of the
5 victim at the time of the commission of the offense, the
6 court shall consider the safety and welfare of the victim and
7 may impose a sentence of probation only where:
8 (1) the court finds (A) or (B) or both are
9 appropriate:
10 (A) the defendant is willing to undergo a
11 court approved counseling program for a minimum
12 duration of 2 years; or
13 (B) the defendant is willing to participate in
14 a court approved plan including but not limited to
15 the defendant's:
16 (i) removal from the household;
17 (ii) restricted contact with the victim;
18 (iii) continued financial support of the
19 family;
20 (iv) restitution for harm done to the
21 victim; and
22 (v) compliance with any other measures
23 that the court may deem appropriate; and
24 (2) the court orders the defendant to pay for the
25 victim's counseling services, to the extent that the
26 court finds, after considering the defendant's income and
27 assets, that the defendant is financially capable of
28 paying for such services, if the victim was under 18
29 years of age at the time the offense was committed and
30 requires counseling as a result of the offense.
31 Probation may be revoked or modified pursuant to Section
32 5-6-4; except where the court determines at the hearing that
33 the defendant violated a condition of his or her probation
34 restricting contact with the victim or other family members
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1 or commits another offense with the victim or other family
2 members, the court shall revoke the defendant's probation and
3 impose a term of imprisonment.
4 For the purposes of this Section, "family member" and
5 "victim" shall have the meanings ascribed to them in Section
6 12-12 of the Criminal Code of 1961.
7 (f) This Article shall not deprive a court in other
8 proceedings to order a forfeiture of property, to suspend or
9 cancel a license, to remove a person from office, or to
10 impose any other civil penalty.
11 (g) Whenever a defendant is convicted of an offense
12 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
13 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
14 12-15 or 12-16 of the Criminal Code of 1961, the defendant
15 shall undergo medical testing to determine whether the
16 defendant has any sexually transmissible disease, including a
17 test for infection with human immunodeficiency virus (HIV) or
18 any other identified causative agent of acquired
19 immunodeficiency syndrome (AIDS). Any such medical test
20 shall be performed only by appropriately licensed medical
21 practitioners and may include an analysis of any bodily
22 fluids as well as an examination of the defendant's person.
23 Except as otherwise provided by law, the results of such test
24 shall be kept strictly confidential by all medical personnel
25 involved in the testing and must be personally delivered in a
26 sealed envelope to the judge of the court in which the
27 conviction was entered for the judge's inspection in camera.
28 Acting in accordance with the best interests of the victim
29 and the public, the judge shall have the discretion to
30 determine to whom, if anyone, the results of the testing may
31 be revealed. The court shall notify the defendant of the test
32 results. The court shall also notify the victim if requested
33 by the victim, and if the victim is under the age of 15 and
34 if requested by the victim's parents or legal guardian, the
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1 court shall notify the victim's parents or legal guardian of
2 the test results. The court shall provide information on the
3 availability of HIV testing and counseling at Department of
4 Public Health facilities to all parties to whom the results
5 of the testing are revealed and shall direct the State's
6 Attorney to provide the information to the victim when
7 possible. A State's Attorney may petition the court to obtain
8 the results of any HIV test administered under this Section,
9 and the court shall grant the disclosure if the State's
10 Attorney shows it is relevant in order to prosecute a charge
11 of criminal transmission of HIV under Section 12-16.2 of the
12 Criminal Code of 1961 against the defendant. The court shall
13 order that the cost of any such test shall be paid by the
14 county and may be taxed as costs against the convicted
15 defendant.
16 (g-5) When an inmate is tested for an airborne
17 communicable disease, as determined by the Illinois
18 Department of Public Health including but not limited to
19 tuberculosis, the results of the test shall be personally
20 delivered by the warden or his or her designee in a sealed
21 envelope to the judge of the court in which the inmate must
22 appear for the judge's inspection in camera if requested by
23 the judge. Acting in accordance with the best interests of
24 those in the courtroom, the judge shall have the discretion
25 to determine what if any precautions need to be taken to
26 prevent transmission of the disease in the courtroom.
27 (h) Whenever a defendant is convicted of an offense
28 under Section 1 or 2 of the Hypodermic Syringes and Needles
29 Act, the defendant shall undergo medical testing to determine
30 whether the defendant has been exposed to human
31 immunodeficiency virus (HIV) or any other identified
32 causative agent of acquired immunodeficiency syndrome (AIDS).
33 Except as otherwise provided by law, the results of such test
34 shall be kept strictly confidential by all medical personnel
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1 involved in the testing and must be personally delivered in a
2 sealed envelope to the judge of the court in which the
3 conviction was entered for the judge's inspection in camera.
4 Acting in accordance with the best interests of the public,
5 the judge shall have the discretion to determine to whom, if
6 anyone, the results of the testing may be revealed. The court
7 shall notify the defendant of a positive test showing an
8 infection with the human immunodeficiency virus (HIV). The
9 court shall provide information on the availability of HIV
10 testing and counseling at Department of Public Health
11 facilities to all parties to whom the results of the testing
12 are revealed and shall direct the State's Attorney to provide
13 the information to the victim when possible. A State's
14 Attorney may petition the court to obtain the results of any
15 HIV test administered under this Section, and the court
16 shall grant the disclosure if the State's Attorney shows it
17 is relevant in order to prosecute a charge of criminal
18 transmission of HIV under Section 12-16.2 of the Criminal
19 Code of 1961 against the defendant. The court shall order
20 that the cost of any such test shall be paid by the county
21 and may be taxed as costs against the convicted defendant.
22 (i) All fines and penalties imposed under this Section
23 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
24 Vehicle Code, or a similar provision of a local ordinance,
25 and any violation of the Child Passenger Protection Act, or a
26 similar provision of a local ordinance, shall be collected
27 and disbursed by the circuit clerk as provided under Section
28 27.5 of the Clerks of Courts Act.
29 (j) In cases when prosecution for any violation of
30 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
31 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
32 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
33 12-16 of the Criminal Code of 1961, any violation of the
34 Illinois Controlled Substances Act, or any violation of the
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1 Cannabis Control Act results in conviction, a disposition of
2 court supervision, or an order of probation granted under
3 Section 10 of the Cannabis Control Act or Section 410 of the
4 Illinois Controlled Substance Act of a defendant, the court
5 shall determine whether the defendant is employed by a
6 facility or center as defined under the Child Care Act of
7 1969, a public or private elementary or secondary school, or
8 otherwise works with children under 18 years of age on a
9 daily basis. When a defendant is so employed, the court
10 shall order the Clerk of the Court to send a copy of the
11 judgment of conviction or order of supervision or probation
12 to the defendant's employer by certified mail. If the
13 employer of the defendant is a school, the Clerk of the Court
14 shall direct the mailing of a copy of the judgment of
15 conviction or order of supervision or probation to the
16 appropriate regional superintendent of schools. The regional
17 superintendent of schools shall notify the State Board of
18 Education of any notification under this subsection.
19 (j-5) A defendant at least 17 years of age who is
20 convicted of a felony and who has not been previously
21 convicted of a misdemeanor or felony and who is sentenced to
22 a term of imprisonment in the Illinois Department of
23 Corrections shall as a condition of his or her sentence be
24 required by the court to attend educational courses designed
25 to prepare the defendant for a high school diploma and to
26 work toward a high school diploma or to work toward passing
27 the high school level Test of General Educational Development
28 (GED) or to work toward completing a vocational training
29 program offered by the Department of Corrections. If a
30 defendant fails to complete the educational training required
31 by his or her sentence during the term of incarceration, the
32 Prisoner Review Board shall, as a condition of mandatory
33 supervised release, require the defendant, at his or her own
34 expense, to pursue a course of study toward a high school
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1 diploma or passage of the GED test. The Prisoner Review
2 Board shall revoke the mandatory supervised release of a
3 defendant who wilfully fails to comply with this subsection
4 (j-5) upon his or her release from confinement in a penal
5 institution while serving a mandatory supervised release
6 term; however, the inability of the defendant after making a
7 good faith effort to obtain financial aid or pay for the
8 educational training shall not be deemed a wilful failure to
9 comply. The Prisoner Review Board shall recommit the
10 defendant whose mandatory supervised release term has been
11 revoked under this subsection (j-5) as provided in Section
12 3-3-9. This subsection (j-5) does not apply to a defendant
13 who has a high school diploma or has successfully passed the
14 GED test. This subsection (j-5) does not apply to a defendant
15 who is determined by the court to be developmentally disabled
16 or otherwise mentally incapable of completing the educational
17 or vocational program.
18 (k) A court may not impose a sentence or disposition for
19 a felony or misdemeanor that requires the defendant to be
20 implanted or injected with or to use any form of birth
21 control.
22 (l)(A) Except as provided in paragraph (C) of subsection
23 (l), whenever a defendant, who is an alien as defined by the
24 Immigration and Nationality Act, is convicted of any felony
25 or misdemeanor offense, the court after sentencing the
26 defendant may, upon motion of the State's Attorney, hold
27 sentence in abeyance and remand the defendant to the custody
28 of the Attorney General of the United States or his or her
29 designated agent to be deported when:
30 (1) a final order of deportation has been issued
31 against the defendant pursuant to proceedings under the
32 Immigration and Nationality Act, and
33 (2) the deportation of the defendant would not
34 deprecate the seriousness of the defendant's conduct and
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1 would not be inconsistent with the ends of justice.
2 Otherwise, the defendant shall be sentenced as provided
3 in this Chapter V.
4 (B) If the defendant has already been sentenced for a
5 felony or misdemeanor offense, or has been placed on
6 probation under Section 10 of the Cannabis Control Act or
7 Section 410 of the Illinois Controlled Substances Act, the
8 court may, upon motion of the State's Attorney to suspend the
9 sentence imposed, commit the defendant to the custody of the
10 Attorney General of the United States or his or her
11 designated agent when:
12 (1) a final order of deportation has been issued
13 against the defendant pursuant to proceedings under the
14 Immigration and Nationality Act, and
15 (2) the deportation of the defendant would not
16 deprecate the seriousness of the defendant's conduct and
17 would not be inconsistent with the ends of justice.
18 (C) This subsection (l) does not apply to offenders who
19 are subject to the provisions of paragraph (2) of subsection
20 (a) of Section 3-6-3.
21 (D) Upon motion of the State's Attorney, if a defendant
22 sentenced under this Section returns to the jurisdiction of
23 the United States, the defendant shall be recommitted to the
24 custody of the county from which he or she was sentenced.
25 Thereafter, the defendant shall be brought before the
26 sentencing court, which may impose any sentence that was
27 available under Section 5-5-3 at the time of initial
28 sentencing. In addition, the defendant shall not be eligible
29 for additional good conduct credit for meritorious service as
30 provided under Section 3-6-6.
31 (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
32 88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
33 3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
34 eff. 5-29-96; 89-477, eff. 6-18-96; 89-507, eff. 7-1-97;
HB0140 Engrossed -28- LRB9000499RCks
1 89-545, eff. 7-25-96; 89-587, eff. 7-31-96; 89-627, eff.
2 1-1-97; 89-688, eff. 6-1-97; revised 1-7-97.)
3 Section 95. No acceleration or delay. Where this Act
4 makes changes in a statute that is represented in this Act by
5 text that is not yet or no longer in effect (for example, a
6 Section represented by multiple versions), the use of that
7 text does not accelerate or delay the taking effect of (i)
8 the changes made by this Act or (ii) provisions derived from
9 any other Public Act.