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| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB1844 Introduced 2/9/2023, by Sen. Elgie R. Sims, Jr. SYNOPSIS AS INTRODUCED:
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Amends the Code of Civil Procedure. Allows a delinquent adjudicated in juvenile court and subsequently imprisoned for one or more felonies by the State which he or she did not commit to file a petition for certificate of innocence in the circuit court of the county in which the delinquent was adjudicated. In a provision regarding the facts that a petitioner must prove by a preponderance of evidence to obtain a certificate of innocence, when proving that the petitioner did not by his or her own conduct cause (rather than voluntarily cause or bring about his or her own conviction, provides that a guilty plea or confession does not alone constitute bringing about one's conviction. Makes conforming changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil 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 Code of Civil Procedure is amended by |
| 5 | | changing Section 2-702 as follows:
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| 6 | | (735 ILCS 5/2-702) |
| 7 | | Sec. 2-702. Petition for a certificate of innocence that |
| 8 | | the petitioner was innocent of all offenses for which he or she |
| 9 | | was incarcerated. |
| 10 | | (a) The General Assembly finds and declares that innocent |
| 11 | | persons who have been wrongly convicted of crimes in Illinois |
| 12 | | and subsequently imprisoned have been frustrated in seeking |
| 13 | | legal redress due to a variety of substantive and technical |
| 14 | | obstacles in the law and that such persons should have an |
| 15 | | available avenue to obtain a finding of innocence so that they |
| 16 | | may obtain relief through a petition in the Court of Claims. |
| 17 | | The General Assembly further finds misleading the current |
| 18 | | legal nomenclature which compels an innocent person to seek a |
| 19 | | pardon for being wrongfully incarcerated. It is the intent of |
| 20 | | the General Assembly that the court, in exercising its |
| 21 | | discretion as permitted by law regarding the weight and |
| 22 | | admissibility of evidence submitted pursuant to this Section, |
| 23 | | shall, in the interest of justice, give due consideration to |
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| 1 | | difficulties of proof caused by the passage of time, the death |
| 2 | | or unavailability of witnesses, the destruction of evidence or |
| 3 | | other factors not caused by such persons or those acting on |
| 4 | | their behalf. |
| 5 | | (b) Any person convicted or delinquent adjudicated in |
| 6 | | juvenile court and subsequently imprisoned for one or more |
| 7 | | felonies by the State of Illinois which he or she did not |
| 8 | | commit may, under the conditions hereinafter provided, file a |
| 9 | | petition for certificate of innocence in the circuit court of |
| 10 | | the county in which the person was convicted or delinquent was |
| 11 | | adjudicated. The petition shall request a certificate of |
| 12 | | innocence finding that the petitioner was innocent of all |
| 13 | | offenses for which he or she was incarcerated. |
| 14 | | (c) In order to present the claim for certificate of |
| 15 | | innocence of an unjust conviction and imprisonment, the |
| 16 | | petitioner must attach to his or her petition documentation |
| 17 | | demonstrating that: |
| 18 | | (1) he or she has been convicted or adjudicated in |
| 19 | | juvenile court of one or more felonies by the State of |
| 20 | | Illinois and subsequently sentenced to a term of |
| 21 | | imprisonment, and has served all or any part of the |
| 22 | | sentence; and |
| 23 | | (2) his or her judgment of conviction or delinquency |
| 24 | | adjudication was reversed or vacated, and the indictment |
| 25 | | or information dismissed or, if a new trial was ordered, |
| 26 | | either he or she was found not guilty at the new trial or |
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| 1 | | he or she was not retried and the indictment or |
| 2 | | information dismissed; or the statute, or application |
| 3 | | thereof, on which the indictment or information was based |
| 4 | | violated the Constitution of the United States or the |
| 5 | | State of Illinois; and |
| 6 | | (3) his or her claim is not time barred by the |
| 7 | | provisions of subsection (i) of this Section. |
| 8 | | (d) The petition shall state facts in sufficient detail to |
| 9 | | permit the court to find that the petitioner is likely to |
| 10 | | succeed at trial in proving that the petitioner is innocent of |
| 11 | | the offenses charged in the indictment, or information, or |
| 12 | | petition or his or her acts or omissions charged in the |
| 13 | | indictment, or information, or petition did not constitute a |
| 14 | | felony or misdemeanor against the State of Illinois, and the |
| 15 | | petitioner did not by his or her own conduct voluntarily cause |
| 16 | | or bring about his or her conviction. The petition shall be |
| 17 | | verified by the petitioner. |
| 18 | | (e) A copy of the petition shall be served on the Attorney |
| 19 | | General and the State's Attorney of the county where the |
| 20 | | conviction was had. The Attorney General and the State's |
| 21 | | Attorney of the county where the conviction was had shall have |
| 22 | | the right to intervene as parties. |
| 23 | | (f) In any hearing seeking a certificate of innocence, the |
| 24 | | court may take judicial notice of prior sworn testimony or |
| 25 | | evidence admitted in the criminal or juvenile proceedings |
| 26 | | related to the convictions or adjudications which resulted in |
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| 1 | | the alleged wrongful incarceration, if the petitioner was |
| 2 | | either represented by counsel at such prior proceedings or the |
| 3 | | right to counsel was knowingly waived. |
| 4 | | (g) In order to obtain a certificate of innocence the |
| 5 | | petitioner must prove by a preponderance of evidence that: |
| 6 | | (1) the petitioner or delinquent adjudicated in |
| 7 | | juvenile court was convicted of one or more felonies by |
| 8 | | the State of Illinois and subsequently sentenced to a term |
| 9 | | of imprisonment, and has served all or any part of the |
| 10 | | sentence; |
| 11 | | (2)(A) the judgment of conviction or adjudication was |
| 12 | | reversed or vacated, and the indictment, or information, |
| 13 | | or petition dismissed or, if a new trial was ordered, |
| 14 | | either the petitioner was found not guilty at the new |
| 15 | | trial or the petitioner was not retried and the indictment |
| 16 | | or information dismissed; or (B) the statute, or |
| 17 | | application thereof, on which the indictment or |
| 18 | | information was based violated the Constitution of the |
| 19 | | United States or the State of Illinois; |
| 20 | | (3) the petitioner is innocent of the offenses charged |
| 21 | | in the indictment, or information, or petition or his or |
| 22 | | her acts or omissions charged in the indictment, or |
| 23 | | information, or petition did not constitute a felony or |
| 24 | | misdemeanor against the State; and |
| 25 | | (4) the petitioner did not by his or her own conduct
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| 26 | | voluntarily cause or bring about his or her conviction. A |
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| 1 | | guilty plea or confession does not alone constitute |
| 2 | | bringing about one's conviction. |
| 3 | | (h) If the court finds that the petitioner is entitled to a
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| 4 | | judgment, it shall enter a certificate of innocence finding |
| 5 | | that
the petitioner was innocent of all offenses for which he |
| 6 | | or she was incarcerated. Upon entry of the certificate of |
| 7 | | innocence or pardon from the Governor stating that such pardon |
| 8 | | was issued on the ground of innocence of the crime for which he |
| 9 | | or she was imprisoned, (1) the clerk of the court shall |
| 10 | | transmit a copy of the certificate of innocence to the clerk of |
| 11 | | the Court of Claims, together with the claimant's current |
| 12 | | address; and (2) the court shall enter an order expunging the |
| 13 | | record of arrest from the
official records of the
arresting |
| 14 | | authority and order that the records of the clerk of the |
| 15 | | circuit
court and the Illinois State Police be sealed until |
| 16 | | further order of the court upon good cause shown
or as |
| 17 | | otherwise provided
herein, and the name of the defendant |
| 18 | | obliterated from the official index
requested to be kept by |
| 19 | | the
circuit court clerk under Section 16 of the Clerks of |
| 20 | | Courts Act in connection
with the arrest and
conviction for |
| 21 | | the offense but the order shall not affect any index issued by
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| 22 | | the circuit court clerk before the entry of the order. The |
| 23 | | court shall enter the expungement order regardless of whether |
| 24 | | the petitioner has prior criminal convictions. |
| 25 | | All records sealed by the Illinois State Police may be
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| 26 | | disseminated by the Department only as required by law or to |
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| 1 | | the arresting
authority, the State's Attorney, the court upon |
| 2 | | a later arrest for the same or
similar offense, or for the |
| 3 | | purpose of sentencing for any subsequent felony.
Upon |
| 4 | | conviction for any subsequent offense, the Department of |
| 5 | | Corrections shall
have access to all sealed records of the |
| 6 | | Department
pertaining to that individual. |
| 7 | | Upon entry of the order of expungement, the clerk of the |
| 8 | | circuit court shall
promptly mail a copy of the order to the |
| 9 | | person whose records were expunged and
sealed. |
| 10 | | (i) Any person seeking a certificate of innocence under |
| 11 | | this
Section based on the dismissal of an indictment or |
| 12 | | information
or acquittal that occurred before the effective |
| 13 | | date of this
amendatory Act of the 95th General Assembly shall |
| 14 | | file his or
her petition within 2 years after the effective |
| 15 | | date of this
amendatory Act of the 95th General Assembly. Any |
| 16 | | person seeking
a certificate of innocence under this Section |
| 17 | | based on the
dismissal of an indictment, or information, or |
| 18 | | petition or acquittal that
occurred on or after the effective |
| 19 | | date of this amendatory Act
of the 95th General Assembly shall |
| 20 | | file his or her petition
within 2 years after the dismissal. |
| 21 | | (j) The decision to grant or deny a certificate of |
| 22 | | innocence shall be binding only with respect to claims filed |
| 23 | | in the Court of Claims and shall not have a res judicata effect |
| 24 | | on any other proceedings.
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| 25 | | (Source: P.A. 102-538, eff. 8-20-21.)
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