Bill Text: IL SB2781 | 2011-2012 | 97th General Assembly | Amended

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Bill Title: Amends the Criminal Code of 1961. Makes a technical change in a Section concerning the definition of "felony".

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [SB2781 Detail]

Download: Illinois-2011-SB2781-Amended.html

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Sen. Donne E. Trotter

Filed: 5/22/2012

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AMENDMENT TO SENATE BILL 2781
AMENDMENT NO. ______. Amend Senate Bill 2781 by replacing
everything after the enacting clause with the following:
"Section 5. The Code of Civil Procedure is amended by
changing Section 2-702 as follows:
(735 ILCS 5/2-702)
Sec. 2-702. Petition for a certificate of innocence that
the petitioner was innocent of all offenses for which he or she
was incarcerated.
(a) The General Assembly finds and declares that innocent
persons who have been wrongly convicted of crimes in Illinois
and subsequently imprisoned have been frustrated in seeking
legal redress due to a variety of substantive and technical
obstacles in the law and that such persons should have an
available avenue to obtain a finding of innocence so that they
may obtain relief through a petition in the Court of Claims.

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The General Assembly further finds misleading the current legal
nomenclature which compels an innocent person to seek a pardon
for being wrongfully incarcerated. It is the intent of the
General Assembly that the court, in exercising its discretion
as permitted by law regarding the weight and admissibility of
evidence submitted pursuant to this Section, shall, in the
interest of justice, give due consideration to difficulties of
proof caused by the passage of time, the death or
unavailability of witnesses, the destruction of evidence or
other factors not caused by such persons or those acting on
their behalf.
(b) Any person convicted and subsequently imprisoned for
one or more felonies by the State of Illinois which he or she
did not commit may, under the conditions hereinafter provided,
file a petition for certificate of innocence in the circuit
court of the county in which the person was convicted. The
petition shall request a certificate of innocence finding that
the petitioner was innocent of all offenses for which he or she
was incarcerated.
(b-5) The presumption of legal innocence is restored when:
a conviction has been reversed or vacated, and the indictment
or information has been dismissed; or if a new trial was
ordered and the defendant was found not guilty at the new trial
or he or she was not retried, and the indictment or information
was dismissed; or the statute, or the application thereof, upon
which the indictment or information was based has been found by

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a court to have violated the Constitution of the United States
or the Constitution of the State of Illinois.
(c) In order to present the claim for certificate of
innocence of an unjust conviction and imprisonment, the
petitioner must attach to his or her petition documentation
demonstrating that:
(1) he or she has been convicted of one or more
felonies by the State of Illinois and subsequently
sentenced to a term of imprisonment, and has served all or
any part of the sentence; and
(2) his or her judgment of conviction was reversed or
vacated, and the indictment or information dismissed or, if
a new trial was ordered, either he or she was found not
guilty at the new trial or he or she was not retried and
the indictment or information dismissed; or the statute, or
application thereof, on which the indictment or
information was based violated the Constitution of the
United States or the State of Illinois; and
(3) his or her claim is not time barred by the
provisions of subsection (i) of this Section.
(d) The petition shall state facts in sufficient detail to
permit the court to find that the petitioner is likely to
succeed at trial in proving that the petitioner is innocent of
the offenses charged in the indictment or information or his or
her acts or omissions charged in the indictment or information
did not constitute a felony or misdemeanor against the State of

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Illinois, and the petitioner did not by his or her own conduct
voluntarily cause or bring about his or her conviction. The
petition shall be verified by the petitioner.
(e) A copy of the petition shall be served on the Attorney
General and the State's Attorney of the county where the
conviction was had. The Attorney General and the State's
Attorney of the county where the conviction was had shall have
the right to intervene as parties.
(f) In any hearing seeking a certificate of innocence, the
court may take judicial notice of prior sworn testimony or
evidence admitted in the criminal proceedings related to the
convictions which resulted in the alleged wrongful
incarceration, if the petitioner was either represented by
counsel at such prior proceedings or the right to counsel was
knowingly waived.
(g) In order to obtain a certificate of innocence the
petitioner must prove by a preponderance of evidence that:
(1) the petitioner was convicted of one or more
felonies by the State of Illinois and subsequently
sentenced to a term of imprisonment, and has served all or
any part of the sentence;
(2)(A) the judgment of conviction was reversed or
vacated, and the indictment or information dismissed or, if
a new trial was ordered, either the petitioner was found
not guilty at the new trial or the petitioner was not
retried and the indictment or information dismissed; or (B)

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the statute, or application thereof, on which the
indictment or information was based violated the
Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged
in the indictment or information or his or her acts or
omissions charged in the indictment or information did not
constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct
voluntarily cause or bring about his or her conviction. A
confession made as a result of a custodial interrogation
that was either challenged prior to trial, or repudiated at
trial, shall not be considered conduct that voluntarily
caused or brought about the conviction. A petitioner whose
conviction is brought about by a guilty plea that is later
vacated based on new evidence of innocence shall not be
automatically barred from obtaining a certificate of
innocence. In those cases, the court shall consider the
totality of the circumstances in determining whether the
petitioner voluntarily caused or brought about the
conviction.
(h) If the court finds that the petitioner is entitled to a
judgment, it shall enter a certificate of innocence finding
that the petitioner was innocent of all offenses for which he
or she was incarcerated. Upon entry of the certificate of
innocence or pardon from the Governor stating that such pardon
was issued on the ground of innocence of the crime for which he

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or she was imprisoned, (1) the clerk of the court shall
transmit a copy of the certificate of innocence to the clerk of
the Court of Claims, together with the claimant's current
address; and (2) the court shall enter an order expunging or
sealing the record of arrest from the official records of the
arresting authority and order that the records of the clerk of
the circuit court and Department of State Police be sealed
until further order of the court upon good cause shown or as
otherwise provided herein, and the name of the defendant
obliterated from the official index requested to be kept by the
circuit court clerk under Section 16 of the Clerks of Courts
Act in connection with the arrest and conviction for the
offense but the order shall not affect any index issued by the
circuit court clerk before the entry of the order.
(i) Any person seeking a certificate of innocence under
this Section based on the dismissal of an indictment or
information or acquittal that occurred before the effective
date of this amendatory Act of the 95th General Assembly shall
file his or her petition within 2 years after the effective
date of this amendatory Act of the 95th General Assembly. Any
person seeking a certificate of innocence under this Section
based on the dismissal of an indictment or information or
acquittal that occurred on or after the effective date of this
amendatory Act of the 95th General Assembly shall file his or
her petition within 2 years after the dismissal.
(j) The decision to grant or deny a certificate of

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innocence shall be binding only with respect to claims filed in
the Court of Claims and shall not have a res judicata effect on
any other proceedings.
(Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11.)
Section 99. Effective date. This Act takes effect upon
becoming law.".