Bill Text: IL HB3293 | 2011-2012 | 97th General Assembly | Engrossed
Bill Title: Amends the Criminal Code of 1961 and the Unified Code of Corrections. Provides for enhanced penalties for second and subsequent violations of the statutes concerning domestic battery and aggravated domestic battery.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Failed) 2013-01-08 - Session Sine Die [HB3293 Detail]
Download: Illinois-2011-HB3293-Engrossed.html
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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 1961 is amended by changing | ||||||
5 | Sections 12-3.2 and 12-3.3 as follows:
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6 | (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
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7 | Sec. 12-3.2. Domestic Battery.
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8 | (a) A person commits domestic battery if he intentionally | ||||||
9 | or knowingly
without legal justification by any means:
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10 | (1) Causes bodily harm to any family or household | ||||||
11 | member as defined in
subsection (3) of Section 112A-3 of | ||||||
12 | the Code of Criminal Procedure of 1963, as
amended;
| ||||||
13 | (2) Makes physical contact of an insulting or provoking | ||||||
14 | nature with any
family or household member as defined in | ||||||
15 | subsection (3) of Section 112A-3
of the Code of Criminal | ||||||
16 | Procedure of 1963, as amended.
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17 | (b) Sentence. Domestic battery is a Class A misdemeanor.
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18 | Domestic battery is a Class 4 felony if the defendant has any
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19 | prior
conviction under this Code for domestic battery (Section | ||||||
20 | 12-3.2) or violation
of an order of protection (Section 12-30), | ||||||
21 | or any prior conviction under the
law of another jurisdiction | ||||||
22 | for an offense which is substantially similar.
Domestic battery | ||||||
23 | is a Class 4 felony
if the
defendant has any prior conviction |
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1 | under this Code for first degree murder
(Section 9-1), attempt | ||||||
2 | to
commit first degree murder (Section 8-4), aggravated | ||||||
3 | domestic battery (Section
12-3.3), aggravated battery
(Section | ||||||
4 | 12-4), heinous battery (Section 12-4.1), aggravated battery | ||||||
5 | with a
firearm (Section 12-4.2), aggravated battery of a child | ||||||
6 | (Section 12-4.3),
aggravated battery of
an unborn child | ||||||
7 | (Section 12-4.4), aggravated battery of a senior citizen
| ||||||
8 | (Section 12-4.6), stalking (Section 12-7.3), aggravated | ||||||
9 | stalking (Section
12-7.4), criminal sexual assault (Section | ||||||
10 | 12-13), aggravated criminal sexual
assault
(12-14), kidnapping | ||||||
11 | (Section 10-1), aggravated kidnapping (Section 10-2),
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12 | predatory criminal sexual assault of a child (Section 12-14.1), | ||||||
13 | aggravated
criminal sexual abuse (Section 12-16), unlawful | ||||||
14 | restraint (Section 10-3),
aggravated unlawful restraint | ||||||
15 | (Section 10-3.1), aggravated arson (Section
20-1.1), or | ||||||
16 | aggravated discharge of a firearm
(Section 24-1.2), or any | ||||||
17 | prior conviction under the law of another
jurisdiction for any | ||||||
18 | offense that is substantially similar to the offenses
listed in | ||||||
19 | this Section, when any of these
offenses have been committed
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20 | against a
family or household member as defined in Section
| ||||||
21 | 112A-3 of the Code of Criminal Procedure of 1963. Domestic | ||||||
22 | battery is a Class 4 felony if the defendant has one
prior
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23 | conviction under this Code for domestic battery (Section | ||||||
24 | 12-3.2). Domestic battery is a Class 3 felony if the defendant | ||||||
25 | had 3 prior convictions under this Code for domestic battery | ||||||
26 | (Section 12-3.2). Domestic battery is a Class 2 felony for |
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1 | which a sentence of probation or conditional discharge may not | ||||||
2 | be imposed if the defendant had 4 prior convictions under this | ||||||
3 | Code for domestic battery (Section 12-3.2). Domestic battery is | ||||||
4 | a Class 1 felony for which a sentence of probation or | ||||||
5 | conditional discharge may not be imposed if the defendant had 5 | ||||||
6 | prior convictions under this Code for domestic battery (Section | ||||||
7 | 12-3.2). Domestic battery is a Class X felony if the defendant | ||||||
8 | had 6 or more prior convictions under this Code for domestic | ||||||
9 | battery (Section 12-3.2). Except when a greater sentence is | ||||||
10 | required by this Section, in In addition to any other
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11 | sentencing alternatives, for any second or subsequent | ||||||
12 | conviction of violating this
Section, the
offender shall be | ||||||
13 | mandatorily sentenced to a minimum of 72
consecutive hours of
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14 | imprisonment. The imprisonment shall not be subject to | ||||||
15 | suspension, nor shall
the person be eligible for probation in | ||||||
16 | order to reduce the sentence.
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17 | (c) Domestic battery committed in the presence of a child. | ||||||
18 | In addition to
any other sentencing alternatives, a defendant | ||||||
19 | who commits, in the presence of
a child, a felony domestic | ||||||
20 | battery (enhanced under subsection
(b)), aggravated domestic | ||||||
21 | battery (Section 12-3.3),
aggravated battery (Section 12-4), | ||||||
22 | unlawful restraint (Section
10-3), or aggravated unlawful | ||||||
23 | restraint (Section 10-3.1) against a family or
household | ||||||
24 | member, as defined in Section 112A-3 of the Code of Criminal
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25 | Procedure of 1963, shall be required to serve a mandatory | ||||||
26 | minimum imprisonment
of 10 days or perform 300 hours of |
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1 | community service, or both. The defendant
shall further be | ||||||
2 | liable for the cost of any counseling required for the child
at | ||||||
3 | the discretion of the court in accordance
with subsection (b) | ||||||
4 | of Section 5-5-6 of the Unified Code of Corrections.
For | ||||||
5 | purposes of this Section, "child" means a person under 18
years | ||||||
6 | of age
who is the defendant's or victim's child or step-child | ||||||
7 | or who is a minor child
residing
within or visiting the | ||||||
8 | household of the defendant or victim. For purposes of this | ||||||
9 | Section,
"in the presence of a child" means in the physical | ||||||
10 | presence of a child or
knowing or having reason to know that a | ||||||
11 | child is present and may see or hear an
act constituting one of | ||||||
12 | the offenses listed in this subsection.
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13 | (d) Upon conviction of domestic battery, the court shall | ||||||
14 | advise the defendant orally or in writing, substantially as | ||||||
15 | follows: "An individual convicted of domestic battery may be | ||||||
16 | subject to federal criminal penalties for possessing, | ||||||
17 | transporting, shipping, or receiving any firearm or ammunition | ||||||
18 | in violation of the federal Gun Control Act of 1968 (18 U.S.C. | ||||||
19 | 922(g)(8) and (9))." A notation shall be made in the court file | ||||||
20 | that the admonition was given. | ||||||
21 | (Source: P.A. 96-287, eff. 8-11-09.)
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22 | (720 ILCS 5/12-3.3)
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23 | Sec. 12-3.3. Aggravated domestic battery.
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24 | (a) A person who, in committing a domestic battery, | ||||||
25 | intentionally or
knowingly causes great bodily harm, or |
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1 | permanent disability or disfigurement
commits aggravated | ||||||
2 | domestic battery.
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3 | (a-5) A person who, in committing a domestic battery, | ||||||
4 | strangles another individual commits aggravated domestic | ||||||
5 | battery. For the purposes of this subsection (a-5), "strangle" | ||||||
6 | means intentionally impeding the normal breathing or | ||||||
7 | circulation of the blood of an individual by applying pressure | ||||||
8 | on the throat or neck of that individual or by blocking the | ||||||
9 | nose or mouth of that individual. | ||||||
10 | (b) Sentence. Aggravated domestic battery is a Class 2 | ||||||
11 | felony. Any order
of probation or conditional discharge entered | ||||||
12 | following a conviction for an
offense under this Section must | ||||||
13 | include, in addition to any other condition of
probation or | ||||||
14 | conditional discharge, a condition that the offender serve a
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15 | mandatory term of imprisonment of not less than 60 consecutive | ||||||
16 | days. A person
convicted of a second or subsequent violation of | ||||||
17 | this Section must be
sentenced to a mandatory term of | ||||||
18 | imprisonment of not less than 3 years and not
more than 7 years | ||||||
19 | or an extended term of imprisonment of not less than 7 years
| ||||||
20 | and not more than 14 years. Aggravated domestic battery is a | ||||||
21 | Class 1 felony for a third violation of this Section for which | ||||||
22 | the person convicted must be sentenced to a mandatory term of | ||||||
23 | imprisonment of not less than 4 years and not more than 15 | ||||||
24 | years. Aggravated domestic battery is a Class X felony for a | ||||||
25 | fourth or subsequent violation of this Section.
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26 | (c) Upon conviction of aggravated domestic battery, the |
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1 | court shall advise the defendant orally or in writing, | ||||||
2 | substantially as follows: "An individual convicted of | ||||||
3 | aggravated domestic battery may be subject to federal criminal | ||||||
4 | penalties for possessing, transporting, shipping, or receiving | ||||||
5 | any firearm or ammunition in violation of the federal Gun | ||||||
6 | Control Act of 1968 (18 U.S.C. 922(g)(8) and (9))." A notation | ||||||
7 | shall be made in the court file that the admonition was given. | ||||||
8 | (Source: P.A. 96-287, eff. 8-11-09; 96-363, eff. 8-13-09; | ||||||
9 | 96-1000, eff. 7-2-10.)
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10 | Section 10. The Unified Code of Corrections is amended by | ||||||
11 | changing Section 5-5-3 as follows:
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12 | (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
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13 | Sec. 5-5-3. Disposition.
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14 | (a) (Blank).
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15 | (b) (Blank).
| ||||||
16 | (c) (1) (Blank).
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17 | (2) A period of probation, a term of periodic | ||||||
18 | imprisonment or
conditional discharge shall not be imposed | ||||||
19 | for the following offenses.
The court shall sentence the | ||||||
20 | offender to not less than the minimum term
of imprisonment | ||||||
21 | set forth in this Code for the following offenses, and
may | ||||||
22 | order a fine or restitution or both in conjunction with | ||||||
23 | such term of
imprisonment:
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24 | (A) First degree murder where the death penalty is |
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1 | not imposed.
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2 | (B) Attempted first degree murder.
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3 | (C) A Class X felony.
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4 | (D) A violation of Section 401.1 or 407 of the
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5 | Illinois Controlled Substances Act, or a violation of | ||||||
6 | subdivision (c)(1), (c)(1.5), or
(c)(2) of
Section 401 | ||||||
7 | of that Act which relates to more than 5 grams of a | ||||||
8 | substance
containing heroin, cocaine, fentanyl, or an | ||||||
9 | analog thereof.
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10 | (E) A violation of Section 5.1 or 9 of the Cannabis | ||||||
11 | Control
Act.
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12 | (F) A Class 2 or greater felony if the offender had | ||||||
13 | been convicted
of a Class 2 or greater felony, | ||||||
14 | including any state or federal conviction for an | ||||||
15 | offense that contained, at the time it was committed, | ||||||
16 | the same elements as an offense now (the date of the | ||||||
17 | offense committed after the prior Class 2 or greater | ||||||
18 | felony) classified as a Class 2 or greater felony, | ||||||
19 | within 10 years of the date on which the
offender
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20 | committed the offense for which he or she is being | ||||||
21 | sentenced, except as
otherwise provided in Section | ||||||
22 | 40-10 of the Alcoholism and Other Drug Abuse and
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23 | Dependency Act.
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24 | (F-5) A violation of Section 24-1, 24-1.1, or | ||||||
25 | 24-1.6 of the Criminal Code of 1961 for which | ||||||
26 | imprisonment is prescribed in those Sections.
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1 | (G) Residential burglary, except as otherwise | ||||||
2 | provided in Section 40-10
of the Alcoholism and Other | ||||||
3 | Drug Abuse and Dependency Act.
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4 | (H) Criminal sexual assault.
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5 | (I) Aggravated battery of a senior citizen.
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6 | (J) A forcible felony if the offense was related to | ||||||
7 | the activities of an
organized gang.
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8 | Before July 1, 1994, for the purposes of this | ||||||
9 | paragraph, "organized
gang" means an association of 5 | ||||||
10 | or more persons, with an established hierarchy,
that | ||||||
11 | encourages members of the association to perpetrate | ||||||
12 | crimes or provides
support to the members of the | ||||||
13 | association who do commit crimes.
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14 | Beginning July 1, 1994, for the purposes of this | ||||||
15 | paragraph,
"organized gang" has the meaning ascribed | ||||||
16 | to it in Section 10 of the Illinois
Streetgang | ||||||
17 | Terrorism Omnibus Prevention Act.
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18 | (K) Vehicular hijacking.
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19 | (L) A second or subsequent conviction for the | ||||||
20 | offense of hate crime
when the underlying offense upon | ||||||
21 | which the hate crime is based is felony
aggravated
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22 | assault or felony mob action.
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23 | (M) A second or subsequent conviction for the | ||||||
24 | offense of institutional
vandalism if the damage to the | ||||||
25 | property exceeds $300.
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26 | (N) A Class 3 felony violation of paragraph (1) of |
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1 | subsection (a) of
Section 2 of the Firearm Owners | ||||||
2 | Identification Card Act.
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3 | (O) A violation of Section 12-6.1 of the Criminal | ||||||
4 | Code of 1961.
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5 | (P) A violation of paragraph (1), (2), (3), (4), | ||||||
6 | (5), or (7) of
subsection (a)
of Section 11-20.1 of the | ||||||
7 | Criminal Code of 1961.
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8 | (Q) A violation of Section 20-1.2 or 20-1.3 of the | ||||||
9 | Criminal Code of
1961.
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10 | (R) A violation of Section 24-3A of the Criminal | ||||||
11 | Code of
1961.
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12 | (S) (Blank).
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13 | (T) A second or subsequent violation of the | ||||||
14 | Methamphetamine Control and Community Protection Act.
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15 | (U) A second or subsequent violation of Section | ||||||
16 | 6-303 of the Illinois Vehicle Code committed while his | ||||||
17 | or her driver's license, permit, or privilege was | ||||||
18 | revoked because of a violation of Section 9-3 of the | ||||||
19 | Criminal Code of 1961, relating to the offense of | ||||||
20 | reckless homicide, or a similar provision of a law of | ||||||
21 | another state.
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22 | (V)
A violation of paragraph (4) of subsection (c) | ||||||
23 | of Section 11-20.3 of the Criminal Code of 1961. | ||||||
24 | (W) A violation of Section 24-3.5 of the Criminal | ||||||
25 | Code of 1961.
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26 | (X) A violation of subsection (a) of Section 31-1a |
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1 | of the Criminal Code of 1961. | ||||||
2 | (Y) A conviction for unlawful possession of a | ||||||
3 | firearm by a street gang member when the firearm was | ||||||
4 | loaded or contained firearm ammunition. | ||||||
5 | (Z) A Class 1 felony committed while he or she was | ||||||
6 | serving a term of probation or conditional discharge | ||||||
7 | for a felony. | ||||||
8 | (AA) Theft of property exceeding $500,000 and not | ||||||
9 | exceeding $1,000,000 in value. | ||||||
10 | (BB) Laundering of criminally derived property of | ||||||
11 | a value exceeding
$500,000. | ||||||
12 | (CC) Knowingly selling, offering for sale, holding | ||||||
13 | for sale, or using 2,000 or more counterfeit items or | ||||||
14 | counterfeit items having a retail value in the | ||||||
15 | aggregate of $500,000 or more. | ||||||
16 | (DD) A violation of Section 12-3.2 or 12-3.3 of the | ||||||
17 | Criminal Code of 1961 for which imprisonment is | ||||||
18 | prescribed in those Sections.
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19 | (3) (Blank).
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20 | (4) A minimum term of imprisonment of not less than 10
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21 | consecutive days or 30 days of community service shall be | ||||||
22 | imposed for a
violation of paragraph (c) of Section 6-303 | ||||||
23 | of the Illinois Vehicle Code.
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24 | (4.1) (Blank).
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25 | (4.2) Except as provided in paragraphs (4.3) and (4.8) | ||||||
26 | of this subsection (c), a
minimum of
100 hours of community |
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1 | service shall be imposed for a second violation of
Section | ||||||
2 | 6-303
of the Illinois Vehicle Code.
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3 | (4.3) A minimum term of imprisonment of 30 days or 300 | ||||||
4 | hours of community
service, as determined by the court, | ||||||
5 | shall
be imposed for a second violation of subsection (c) | ||||||
6 | of Section 6-303 of the
Illinois Vehicle Code.
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7 | (4.4) Except as provided in paragraphs
(4.5), (4.6), | ||||||
8 | and (4.9) of this
subsection (c), a
minimum term of | ||||||
9 | imprisonment of 30 days or 300 hours of community service, | ||||||
10 | as
determined by the court, shall
be imposed
for a third or | ||||||
11 | subsequent violation of Section 6-303 of the Illinois | ||||||
12 | Vehicle
Code.
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13 | (4.5) A minimum term of imprisonment of 30 days
shall | ||||||
14 | be imposed for a third violation of subsection (c) of
| ||||||
15 | Section 6-303 of the Illinois Vehicle Code.
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16 | (4.6) Except as provided in paragraph (4.10) of this | ||||||
17 | subsection (c), a minimum term of imprisonment of 180 days | ||||||
18 | shall be imposed for a
fourth or subsequent violation of | ||||||
19 | subsection (c) of Section 6-303 of the
Illinois Vehicle | ||||||
20 | Code.
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21 | (4.7) A minimum term of imprisonment of not less than | ||||||
22 | 30 consecutive days, or 300 hours of community service, | ||||||
23 | shall be imposed for a violation of subsection (a-5) of | ||||||
24 | Section 6-303 of the Illinois Vehicle Code, as provided in | ||||||
25 | subsection (b-5) of that Section.
| ||||||
26 | (4.8) A mandatory prison sentence shall be imposed for |
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1 | a second violation of subsection (a-5) of Section 6-303 of | ||||||
2 | the Illinois Vehicle Code, as provided in subsection (c-5) | ||||||
3 | of that Section. The person's driving privileges shall be | ||||||
4 | revoked for a period of not less than 5 years from the date | ||||||
5 | of his or her release from prison.
| ||||||
6 | (4.9) A mandatory prison sentence of not less than 4 | ||||||
7 | and not more than 15 years shall be imposed for a third | ||||||
8 | violation of subsection (a-5) of Section 6-303 of the | ||||||
9 | Illinois Vehicle Code, as provided in subsection (d-2.5) of | ||||||
10 | that Section. The person's driving privileges shall be | ||||||
11 | revoked for the remainder of his or her life.
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12 | (4.10) A mandatory prison sentence for a Class 1 felony | ||||||
13 | shall be imposed, and the person shall be eligible for an | ||||||
14 | extended term sentence, for a fourth or subsequent | ||||||
15 | violation of subsection (a-5) of Section 6-303 of the | ||||||
16 | Illinois Vehicle Code, as provided in subsection (d-3.5) of | ||||||
17 | that Section. The person's driving privileges shall be | ||||||
18 | revoked for the remainder of his or her life.
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19 | (5) The court may sentence a corporation or | ||||||
20 | unincorporated
association convicted of any offense to:
| ||||||
21 | (A) a period of conditional discharge;
| ||||||
22 | (B) a fine;
| ||||||
23 | (C) make restitution to the victim under Section | ||||||
24 | 5-5-6 of this Code.
| ||||||
25 | (5.1) In addition to any other penalties imposed, and | ||||||
26 | except as provided in paragraph (5.2) or (5.3), a person
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1 | convicted of violating subsection (c) of Section 11-907 of | ||||||
2 | the Illinois
Vehicle Code shall have his or her driver's | ||||||
3 | license, permit, or privileges
suspended for at least 90 | ||||||
4 | days but not more than one year, if the violation
resulted | ||||||
5 | in damage to the property of another person.
| ||||||
6 | (5.2) In addition to any other penalties imposed, and | ||||||
7 | except as provided in paragraph (5.3), a person convicted
| ||||||
8 | of violating subsection (c) of Section 11-907 of the | ||||||
9 | Illinois Vehicle Code
shall have his or her driver's | ||||||
10 | license, permit, or privileges suspended for at
least 180 | ||||||
11 | days but not more than 2 years, if the violation resulted | ||||||
12 | in injury
to
another person.
| ||||||
13 | (5.3) In addition to any other penalties imposed, a | ||||||
14 | person convicted of violating subsection (c) of Section
| ||||||
15 | 11-907 of the Illinois Vehicle Code shall have his or her | ||||||
16 | driver's license,
permit, or privileges suspended for 2 | ||||||
17 | years, if the violation resulted in the
death of another | ||||||
18 | person.
| ||||||
19 | (5.4) In addition to any other penalties imposed, a | ||||||
20 | person convicted of violating Section 3-707 of the Illinois | ||||||
21 | Vehicle Code shall have his or her driver's license, | ||||||
22 | permit, or privileges suspended for 3 months and until he | ||||||
23 | or she has paid a reinstatement fee of $100. | ||||||
24 | (5.5) In addition to any other penalties imposed, a | ||||||
25 | person convicted of violating Section 3-707 of the Illinois | ||||||
26 | Vehicle Code during a period in which his or her driver's |
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1 | license, permit, or privileges were suspended for a | ||||||
2 | previous violation of that Section shall have his or her | ||||||
3 | driver's license, permit, or privileges suspended for an | ||||||
4 | additional 6 months after the expiration of the original | ||||||
5 | 3-month suspension and until he or she has paid a | ||||||
6 | reinstatement fee of $100.
| ||||||
7 | (6) (Blank).
| ||||||
8 | (7) (Blank).
| ||||||
9 | (8) (Blank).
| ||||||
10 | (9) A defendant convicted of a second or subsequent | ||||||
11 | offense of ritualized
abuse of a child may be sentenced to | ||||||
12 | a term of natural life imprisonment.
| ||||||
13 | (10) (Blank).
| ||||||
14 | (11) The court shall impose a minimum fine of $1,000 | ||||||
15 | for a first offense
and $2,000 for a second or subsequent | ||||||
16 | offense upon a person convicted of or
placed on supervision | ||||||
17 | for battery when the individual harmed was a sports
| ||||||
18 | official or coach at any level of competition and the act | ||||||
19 | causing harm to the
sports
official or coach occurred | ||||||
20 | within an athletic facility or within the immediate | ||||||
21 | vicinity
of the athletic facility at which the sports | ||||||
22 | official or coach was an active
participant
of the athletic | ||||||
23 | contest held at the athletic facility. For the purposes of
| ||||||
24 | this paragraph (11), "sports official" means a person at an | ||||||
25 | athletic contest
who enforces the rules of the contest, | ||||||
26 | such as an umpire or referee; "athletic facility" means an |
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1 | indoor or outdoor playing field or recreational area where | ||||||
2 | sports activities are conducted;
and "coach" means a person | ||||||
3 | recognized as a coach by the sanctioning
authority that | ||||||
4 | conducted the sporting event. | ||||||
5 | (12) A person may not receive a disposition of court | ||||||
6 | supervision for a
violation of Section 5-16 of the Boat | ||||||
7 | Registration and Safety Act if that
person has previously | ||||||
8 | received a disposition of court supervision for a
violation | ||||||
9 | of that Section.
| ||||||
10 | (13) A person convicted of or placed on court | ||||||
11 | supervision for an assault or aggravated assault when the | ||||||
12 | victim and the offender are family or household members as | ||||||
13 | defined in Section 103 of the Illinois Domestic Violence | ||||||
14 | Act of 1986 or convicted of domestic battery or aggravated | ||||||
15 | domestic battery may be required to attend a Partner Abuse | ||||||
16 | Intervention Program under protocols set forth by the | ||||||
17 | Illinois Department of Human Services under such terms and | ||||||
18 | conditions imposed by the court. The costs of such classes | ||||||
19 | shall be paid by the offender.
| ||||||
20 | (d) In any case in which a sentence originally imposed is | ||||||
21 | vacated,
the case shall be remanded to the trial court. The | ||||||
22 | trial court shall
hold a hearing under Section 5-4-1 of the | ||||||
23 | Unified Code of Corrections
which may include evidence of the | ||||||
24 | defendant's life, moral character and
occupation during the | ||||||
25 | time since the original sentence was passed. The
trial court | ||||||
26 | shall then impose sentence upon the defendant. The trial
court |
| |||||||
| |||||||
1 | may impose any sentence which could have been imposed at the
| ||||||
2 | original trial subject to Section 5-5-4 of the Unified Code of | ||||||
3 | Corrections.
If a sentence is vacated on appeal or on | ||||||
4 | collateral attack due to the
failure of the trier of fact at | ||||||
5 | trial to determine beyond a reasonable doubt
the
existence of a | ||||||
6 | fact (other than a prior conviction) necessary to increase the
| ||||||
7 | punishment for the offense beyond the statutory maximum | ||||||
8 | otherwise applicable,
either the defendant may be re-sentenced | ||||||
9 | to a term within the range otherwise
provided or, if the State | ||||||
10 | files notice of its intention to again seek the
extended | ||||||
11 | sentence, the defendant shall be afforded a new trial.
| ||||||
12 | (e) In cases where prosecution for
aggravated criminal | ||||||
13 | sexual abuse under Section 12-16 of the
Criminal Code of 1961 | ||||||
14 | results in conviction of a defendant
who was a family member of | ||||||
15 | the victim at the time of the commission of the
offense, the | ||||||
16 | court shall consider the safety and welfare of the victim and
| ||||||
17 | may impose a sentence of probation only where:
| ||||||
18 | (1) the court finds (A) or (B) or both are appropriate:
| ||||||
19 | (A) the defendant is willing to undergo a court | ||||||
20 | approved counseling
program for a minimum duration of 2 | ||||||
21 | years; or
| ||||||
22 | (B) the defendant is willing to participate in a | ||||||
23 | court approved plan
including but not limited to the | ||||||
24 | defendant's:
| ||||||
25 | (i) removal from the household;
| ||||||
26 | (ii) restricted contact with the victim;
|
| |||||||
| |||||||
1 | (iii) continued financial support of the | ||||||
2 | family;
| ||||||
3 | (iv) restitution for harm done to the victim; | ||||||
4 | and
| ||||||
5 | (v) compliance with any other measures that | ||||||
6 | the court may
deem appropriate; and
| ||||||
7 | (2) the court orders the defendant to pay for the | ||||||
8 | victim's counseling
services, to the extent that the court | ||||||
9 | finds, after considering the
defendant's income and | ||||||
10 | assets, that the defendant is financially capable of
paying | ||||||
11 | for such services, if the victim was under 18 years of age | ||||||
12 | at the
time the offense was committed and requires | ||||||
13 | counseling as a result of the
offense.
| ||||||
14 | Probation may be revoked or modified pursuant to Section | ||||||
15 | 5-6-4; except
where the court determines at the hearing that | ||||||
16 | the defendant violated a
condition of his or her probation | ||||||
17 | restricting contact with the victim or
other family members or | ||||||
18 | commits another offense with the victim or other
family | ||||||
19 | members, the court shall revoke the defendant's probation and
| ||||||
20 | impose a term of imprisonment.
| ||||||
21 | For the purposes of this Section, "family member" and | ||||||
22 | "victim" shall have
the meanings ascribed to them in Section | ||||||
23 | 12-12 of the Criminal Code of
1961.
| ||||||
24 | (f) (Blank).
| ||||||
25 | (g) Whenever a defendant is convicted of an offense under | ||||||
26 | Sections
11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 11-18.1, |
| |||||||
| |||||||
1 | 11-19, 11-19.1, 11-19.2,
12-13, 12-14, 12-14.1, 12-15 or 12-16 | ||||||
2 | of the Criminal Code of 1961,
the defendant shall undergo | ||||||
3 | medical testing to
determine whether the defendant has any | ||||||
4 | sexually transmissible disease,
including a test for infection | ||||||
5 | with human immunodeficiency virus (HIV) or
any other identified | ||||||
6 | causative agent of acquired immunodeficiency syndrome
(AIDS). | ||||||
7 | Any such medical test shall be performed only by appropriately
| ||||||
8 | licensed medical practitioners and may include an analysis of | ||||||
9 | any bodily
fluids as well as an examination of the defendant's | ||||||
10 | person.
Except as otherwise provided by law, the results of | ||||||
11 | such test shall be kept
strictly confidential by all medical | ||||||
12 | personnel involved in the testing and must
be personally | ||||||
13 | delivered in a sealed envelope to the judge of the court in | ||||||
14 | which
the conviction was entered for the judge's inspection in | ||||||
15 | camera. Acting in
accordance with the best interests of the | ||||||
16 | victim and the public, the judge
shall have the discretion to | ||||||
17 | determine to whom, if anyone, the results of the
testing may be | ||||||
18 | revealed. The court shall notify the defendant
of the test | ||||||
19 | results. The court shall
also notify the victim if requested by | ||||||
20 | the victim, and if the victim is under
the age of 15 and if | ||||||
21 | requested by the victim's parents or legal guardian, the
court | ||||||
22 | shall notify the victim's parents or legal guardian of the test
| ||||||
23 | results.
The court shall provide information on the | ||||||
24 | availability of HIV testing
and counseling at Department of | ||||||
25 | Public Health facilities to all parties to
whom the results of | ||||||
26 | the testing are revealed and shall direct the State's
Attorney |
| |||||||
| |||||||
1 | to provide the information to the victim when possible.
A | ||||||
2 | State's Attorney may petition the court to obtain the results | ||||||
3 | of any HIV test
administered under this Section, and the court | ||||||
4 | shall grant the disclosure if
the State's Attorney shows it is | ||||||
5 | relevant in order to prosecute a charge of
criminal | ||||||
6 | transmission of HIV under Section 12-16.2 of the Criminal Code | ||||||
7 | of 1961
against the defendant. The court shall order that the | ||||||
8 | cost of any such test
shall be paid by the county and may be | ||||||
9 | taxed as costs against the convicted
defendant.
| ||||||
10 | (g-5) When an inmate is tested for an airborne communicable | ||||||
11 | disease, as
determined by the Illinois Department of Public | ||||||
12 | Health including but not
limited to tuberculosis, the results | ||||||
13 | of the test shall be
personally delivered by the warden or his | ||||||
14 | or her designee in a sealed envelope
to the judge of the court | ||||||
15 | in which the inmate must appear for the judge's
inspection in | ||||||
16 | camera if requested by the judge. Acting in accordance with the
| ||||||
17 | best interests of those in the courtroom, the judge shall have | ||||||
18 | the discretion
to determine what if any precautions need to be | ||||||
19 | taken to prevent transmission
of the disease in the courtroom.
| ||||||
20 | (h) Whenever a defendant is convicted of an offense under | ||||||
21 | Section 1 or 2
of the Hypodermic Syringes and Needles Act, the | ||||||
22 | defendant shall undergo
medical testing to determine whether | ||||||
23 | the defendant has been exposed to human
immunodeficiency virus | ||||||
24 | (HIV) or any other identified causative agent of
acquired | ||||||
25 | immunodeficiency syndrome (AIDS). Except as otherwise provided | ||||||
26 | by
law, the results of such test shall be kept strictly |
| |||||||
| |||||||
1 | confidential by all
medical personnel involved in the testing | ||||||
2 | and must be personally delivered in a
sealed envelope to the | ||||||
3 | judge of the court in which the conviction was entered
for the | ||||||
4 | judge's inspection in camera. Acting in accordance with the | ||||||
5 | best
interests of the public, the judge shall have the | ||||||
6 | discretion to determine to
whom, if anyone, the results of the | ||||||
7 | testing may be revealed. The court shall
notify the defendant | ||||||
8 | of a positive test showing an infection with the human
| ||||||
9 | immunodeficiency virus (HIV). The court shall provide | ||||||
10 | information on the
availability of HIV testing and counseling | ||||||
11 | at Department of Public Health
facilities to all parties to | ||||||
12 | whom the results of the testing are revealed and
shall direct | ||||||
13 | the State's Attorney to provide the information to the victim | ||||||
14 | when
possible. A State's Attorney may petition the court to | ||||||
15 | obtain the results of
any HIV test administered under this | ||||||
16 | Section, and the court shall grant the
disclosure if the | ||||||
17 | State's Attorney shows it is relevant in order to prosecute a
| ||||||
18 | charge of criminal transmission of HIV under Section 12-16.2 of | ||||||
19 | the Criminal
Code of 1961 against the defendant. The court | ||||||
20 | shall order that the cost of any
such test shall be paid by the | ||||||
21 | county and may be taxed as costs against the
convicted | ||||||
22 | defendant.
| ||||||
23 | (i) All fines and penalties imposed under this Section for | ||||||
24 | any violation
of Chapters 3, 4, 6, and 11 of the Illinois | ||||||
25 | Vehicle Code, or a similar
provision of a local ordinance, and | ||||||
26 | any violation
of the Child Passenger Protection Act, or a |
| |||||||
| |||||||
1 | similar provision of a local
ordinance, shall be collected and | ||||||
2 | disbursed by the circuit
clerk as provided under Section 27.5 | ||||||
3 | of the Clerks of Courts Act.
| ||||||
4 | (j) In cases when prosecution for any violation of Section | ||||||
5 | 11-6, 11-8,
11-9, 11-11, 11-14, 11-15, 11-15.1, 11-16, 11-17, | ||||||
6 | 11-17.1, 11-18, 11-18.1,
11-19, 11-19.1, 11-19.2, 11-20.1, | ||||||
7 | 11-21, 12-13, 12-14, 12-14.1, 12-15, or
12-16 of the
Criminal | ||||||
8 | Code of 1961, any violation of the Illinois Controlled | ||||||
9 | Substances Act,
any violation of the Cannabis Control Act, or | ||||||
10 | any violation of the Methamphetamine Control and Community | ||||||
11 | Protection Act results in conviction, a
disposition of court | ||||||
12 | supervision, or an order of probation granted under
Section 10 | ||||||
13 | of the Cannabis Control Act, Section 410 of the Illinois
| ||||||
14 | Controlled Substance Act, or Section 70 of the Methamphetamine | ||||||
15 | Control and Community Protection Act of a defendant, the court | ||||||
16 | shall determine whether the
defendant is employed by a facility | ||||||
17 | or center as defined under the Child Care
Act of 1969, a public | ||||||
18 | or private elementary or secondary school, or otherwise
works | ||||||
19 | with children under 18 years of age on a daily basis. When a | ||||||
20 | defendant
is so employed, the court shall order the Clerk of | ||||||
21 | the Court to send a copy of
the judgment of conviction or order | ||||||
22 | of supervision or probation to the
defendant's employer by | ||||||
23 | certified mail.
If the employer of the defendant is a school, | ||||||
24 | the Clerk of the Court shall
direct the mailing of a copy of | ||||||
25 | the judgment of conviction or order of
supervision or probation | ||||||
26 | to the appropriate regional superintendent of schools.
The |
| |||||||
| |||||||
1 | regional superintendent of schools shall notify the State Board | ||||||
2 | of
Education of any notification under this subsection.
| ||||||
3 | (j-5) A defendant at least 17 years of age who is convicted | ||||||
4 | of a felony and
who has not been previously convicted of a | ||||||
5 | misdemeanor or felony and who is
sentenced to a term of | ||||||
6 | imprisonment in the Illinois Department of Corrections
shall as | ||||||
7 | a condition of his or her sentence be required by the court to | ||||||
8 | attend
educational courses designed to prepare the defendant | ||||||
9 | for a high school diploma
and to work toward a high school | ||||||
10 | diploma or to work toward passing the high
school level Test of | ||||||
11 | General Educational Development (GED) or to work toward
| ||||||
12 | completing a vocational training program offered by the | ||||||
13 | Department of
Corrections. If a defendant fails to complete the | ||||||
14 | educational training
required by his or her sentence during the | ||||||
15 | term of incarceration, the Prisoner
Review Board shall, as a | ||||||
16 | condition of mandatory supervised release, require the
| ||||||
17 | defendant, at his or her own expense, to pursue a course of | ||||||
18 | study toward a high
school diploma or passage of the GED test. | ||||||
19 | The Prisoner Review Board shall
revoke the mandatory supervised | ||||||
20 | release of a defendant who wilfully fails to
comply with this | ||||||
21 | subsection (j-5) upon his or her release from confinement in a
| ||||||
22 | penal institution while serving a mandatory supervised release | ||||||
23 | term; however,
the inability of the defendant after making a | ||||||
24 | good faith effort to obtain
financial aid or pay for the | ||||||
25 | educational training shall not be deemed a wilful
failure to | ||||||
26 | comply. The Prisoner Review Board shall recommit the defendant
|
| |||||||
| |||||||
1 | whose mandatory supervised release term has been revoked under | ||||||
2 | this subsection
(j-5) as provided in Section 3-3-9. This | ||||||
3 | subsection (j-5) does not apply to a
defendant who has a high | ||||||
4 | school diploma or has successfully passed the GED
test. This | ||||||
5 | subsection (j-5) does not apply to a defendant who is | ||||||
6 | determined by
the court to be developmentally disabled or | ||||||
7 | otherwise mentally incapable of
completing the educational or | ||||||
8 | vocational program.
| ||||||
9 | (k) (Blank).
| ||||||
10 | (l) (A) Except as provided
in paragraph (C) of subsection | ||||||
11 | (l), whenever a defendant,
who is an alien as defined by | ||||||
12 | the Immigration and Nationality Act, is convicted
of any | ||||||
13 | felony or misdemeanor offense, the court after sentencing | ||||||
14 | the defendant
may, upon motion of the State's Attorney, | ||||||
15 | hold sentence in abeyance and remand
the defendant to the | ||||||
16 | custody of the Attorney General of
the United States or his | ||||||
17 | or her designated agent to be deported when:
| ||||||
18 | (1) a final order of deportation has been issued | ||||||
19 | against the defendant
pursuant to proceedings under | ||||||
20 | the Immigration and Nationality Act, and
| ||||||
21 | (2) the deportation of the defendant would not | ||||||
22 | deprecate the seriousness
of the defendant's conduct | ||||||
23 | and would not be inconsistent with the ends of
justice.
| ||||||
24 | Otherwise, the defendant shall be sentenced as | ||||||
25 | provided in this Chapter V.
| ||||||
26 | (B) If the defendant has already been sentenced for a |
| |||||||
| |||||||
1 | felony or
misdemeanor
offense, or has been placed on | ||||||
2 | probation under Section 10 of the Cannabis
Control Act,
| ||||||
3 | Section 410 of the Illinois Controlled Substances Act, or | ||||||
4 | Section 70 of the Methamphetamine Control and Community | ||||||
5 | Protection Act, the court
may, upon motion of the State's | ||||||
6 | Attorney to suspend the
sentence imposed, commit the | ||||||
7 | defendant to the custody of the Attorney General
of the | ||||||
8 | United States or his or her designated agent when:
| ||||||
9 | (1) a final order of deportation has been issued | ||||||
10 | against the defendant
pursuant to proceedings under | ||||||
11 | the Immigration and Nationality Act, and
| ||||||
12 | (2) the deportation of the defendant would not | ||||||
13 | deprecate the seriousness
of the defendant's conduct | ||||||
14 | and would not be inconsistent with the ends of
justice.
| ||||||
15 | (C) This subsection (l) does not apply to offenders who | ||||||
16 | are subject to the
provisions of paragraph (2) of | ||||||
17 | subsection (a) of Section 3-6-3.
| ||||||
18 | (D) Upon motion of the State's Attorney, if a defendant | ||||||
19 | sentenced under
this Section returns to the jurisdiction of | ||||||
20 | the United States, the defendant
shall be recommitted to | ||||||
21 | the custody of the county from which he or she was
| ||||||
22 | sentenced.
Thereafter, the defendant shall be brought | ||||||
23 | before the sentencing court, which
may impose any sentence | ||||||
24 | that was available under Section 5-5-3 at the time of
| ||||||
25 | initial sentencing. In addition, the defendant shall not be | ||||||
26 | eligible for
additional good conduct credit for |
| |||||||
| |||||||
1 | meritorious service as provided under
Section 3-6-6.
| ||||||
2 | (m) A person convicted of criminal defacement of property | ||||||
3 | under Section
21-1.3 of the Criminal Code of 1961, in which the | ||||||
4 | property damage exceeds $300
and the property damaged is a | ||||||
5 | school building, shall be ordered to perform
community service | ||||||
6 | that may include cleanup, removal, or painting over the
| ||||||
7 | defacement.
| ||||||
8 | (n) The court may sentence a person convicted of a | ||||||
9 | violation of Section
12-19, 12-21, or 16-1.3 of the Criminal | ||||||
10 | Code of 1961 (i) to an impact
incarceration program if the | ||||||
11 | person is otherwise eligible for that program
under Section | ||||||
12 | 5-8-1.1, (ii) to community service, or (iii) if the person is | ||||||
13 | an
addict or alcoholic, as defined in the Alcoholism and Other | ||||||
14 | Drug Abuse and
Dependency Act, to a substance or alcohol abuse | ||||||
15 | program licensed under that
Act. | ||||||
16 | (o) Whenever a person is convicted of a sex offense as | ||||||
17 | defined in Section 2 of the Sex Offender Registration Act, the | ||||||
18 | defendant's driver's license or permit shall be subject to | ||||||
19 | renewal on an annual basis in accordance with the provisions of | ||||||
20 | license renewal established by the Secretary of State.
| ||||||
21 | (Source: P.A. 95-188, eff. 8-16-07; 95-259, eff. 8-17-07; | ||||||
22 | 95-331, eff. 8-21-07; 95-377, eff. 1-1-08; 95-579, eff. 6-1-08; | ||||||
23 | 95-876, eff. 8-21-08; 95-882, eff. 1-1-09; 95-1052, eff. | ||||||
24 | 7-1-09; 96-348, eff. 8-12-09; 96-400, eff. 8-13-09; 96-829, | ||||||
25 | eff. 12-3-09; 96-1200, eff. 7-22-10.)
|