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| | HB0821 Engrossed | | LRB098 03649 MRW 33665 b |
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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, |
| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Unified Code of Corrections is amended by |
| 5 | | changing Section 5-5-4 as follows:
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| 6 | | (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
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| 7 | | Sec. 5-5-4. Resentences.
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| 8 | | (a) Where a conviction or sentence has been set aside on |
| 9 | | direct review
or on collateral attack, the court shall not |
| 10 | | impose a new sentence for the same
offense or for a different |
| 11 | | offense based on the same conduct which is more
severe than the |
| 12 | | prior sentence less the portion of the prior sentence
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| 13 | | previously satisfied unless the more severe sentence is based |
| 14 | | upon conduct
on the part of the defendant occurring after the |
| 15 | | original sentencing.
If a sentence is vacated on appeal or on |
| 16 | | collateral attack due to the
failure of the trier of fact at |
| 17 | | trial to determine beyond a reasonable doubt
the existence of a |
| 18 | | fact (other than a prior conviction) necessary to increase
the
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| 19 | | punishment for the offense beyond the statutory maximum |
| 20 | | otherwise applicable,
either the defendant may be re-sentenced |
| 21 | | to a term within the range otherwise
provided or, if the State |
| 22 | | files notice of its intention to again seek the
extended |
| 23 | | sentence, the defendant shall be afforded a new trial.
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| 1 | | (b) If a conviction or sentence has been set aside on |
| 2 | | direct review or on
collateral attack and
the court determines |
| 3 | | by clear and convincing evidence that the defendant was
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| 4 | | factually innocent of the
charge, the court shall enter an |
| 5 | | order expunging the record of arrest from the
official records |
| 6 | | of the
arresting authority and order that the records of the |
| 7 | | clerk of the circuit
court and Department of
State Police be |
| 8 | | sealed until further order of the court upon good cause shown
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| 9 | | or as otherwise provided
herein, and the name of the defendant |
| 10 | | obliterated from the official index
requested to be kept by the
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| 11 | | circuit court clerk under Section 16 of the Clerks of Courts |
| 12 | | Act in connection
with the arrest and
conviction for the |
| 13 | | offense but the order shall not affect any index issued by
the |
| 14 | | circuit court clerk before the entry of the order.
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| 15 | | All records sealed by the Department of State Police may be
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| 16 | | disseminated by the Department only as required by law or to |
| 17 | | the arresting
authority, the State's Attorney, the court upon a |
| 18 | | later arrest for the same or
similar offense, or for the |
| 19 | | purpose of sentencing for any subsequent felony.
Upon |
| 20 | | conviction for any subsequent offense, the Department of |
| 21 | | Corrections shall
have access to all sealed records of the |
| 22 | | Department
pertaining to that individual.
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| 23 | | Upon entry of the order of expungement, the clerk of the |
| 24 | | circuit court shall
promptly mail a copy of the order to the |
| 25 | | person whose records were expunged and
sealed.
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| 26 | | (c) If a conviction has been vacated as a result of a claim |
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| | HB0821 Engrossed | - 3 - | LRB098 03649 MRW 33665 b |
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| 1 | | of actual innocence based on newly discovered evidence made |
| 2 | | under Section 122-1 of the Code of Criminal Procedure of 1963 |
| 3 | | or Section 2-1401 of the Code of Civil Procedure, and the |
| 4 | | provisions of paragraphs (1) and (2) of subsection (g) of |
| 5 | | Section 2-702 of the Code of Civil Procedure are otherwise |
| 6 | | satisfied, the court shall enter an order for a certificate of |
| 7 | | innocence. |
| 8 | | (Source: P.A. 93-210, eff. 7-18-03.)
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