Bill Text: IL HB0821 | 2013-2014 | 98th General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Amends the Code of Criminal Procedure of 1963. Makes a technical change in a Section concerning the short title.

Sponsorship: Moderate Partisan Bill (Democrat 13-3)

Status: (Passed) 2013-08-02 - Public Act . . . . . . . . . 98-0133 [HB0821 Detail]

Download: Illinois-2013-HB0821-Amended.html

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Sen. Kwame Raoul

Filed: 5/20/2013

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AMENDMENT TO HOUSE BILL 821
AMENDMENT NO. ______. Amend House Bill 821 by replacing
everything after the enacting clause with the following:
"Section 5. The Criminal Identification Act is amended by
changing Section 5.2 as follows:
(20 ILCS 2630/5.2)
Sec. 5.2. Expungement and sealing.
(a) General Provisions.
(1) Definitions. In this Act, words and phrases have
the meanings set forth in this subsection, except when a
particular context clearly requires a different meaning.
(A) The following terms shall have the meanings
ascribed to them in the Unified Code of Corrections,
730 ILCS 5/5-1-2 through 5/5-1-22:
(i) Business Offense (730 ILCS 5/5-1-2),
(ii) Charge (730 ILCS 5/5-1-3),

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(iii) Court (730 ILCS 5/5-1-6),
(iv) Defendant (730 ILCS 5/5-1-7),
(v) Felony (730 ILCS 5/5-1-9),
(vi) Imprisonment (730 ILCS 5/5-1-10),
(vii) Judgment (730 ILCS 5/5-1-12),
(viii) Misdemeanor (730 ILCS 5/5-1-14),
(ix) Offense (730 ILCS 5/5-1-15),
(x) Parole (730 ILCS 5/5-1-16),
(xi) Petty Offense (730 ILCS 5/5-1-17),
(xii) Probation (730 ILCS 5/5-1-18),
(xiii) Sentence (730 ILCS 5/5-1-19),
(xiv) Supervision (730 ILCS 5/5-1-21), and
(xv) Victim (730 ILCS 5/5-1-22).
(B) As used in this Section, "charge not initiated
by arrest" means a charge (as defined by 730 ILCS
5/5-1-3) brought against a defendant where the
defendant is not arrested prior to or as a direct
result of the charge.
(C) "Conviction" means a judgment of conviction or
sentence entered upon a plea of guilty or upon a
verdict or finding of guilty of an offense, rendered by
a legally constituted jury or by a court of competent
jurisdiction authorized to try the case without a jury.
An order of supervision successfully completed by the
petitioner is not a conviction. An order of qualified
probation (as defined in subsection (a)(1)(J))

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successfully completed by the petitioner is not a
conviction. An order of supervision or an order of
qualified probation that is terminated
unsatisfactorily is a conviction, unless the
unsatisfactory termination is reversed, vacated, or
modified and the judgment of conviction, if any, is
reversed or vacated.
(D) "Criminal offense" means a petty offense,
business offense, misdemeanor, felony, or municipal
ordinance violation (as defined in subsection
(a)(1)(H)). As used in this Section, a minor traffic
offense (as defined in subsection (a)(1)(G)) shall not
be considered a criminal offense.
(E) "Expunge" means to physically destroy the
records or return them to the petitioner and to
obliterate the petitioner's name from any official
index or public record, or both. Nothing in this Act
shall require the physical destruction of the circuit
court file, but such records relating to arrests or
charges, or both, ordered expunged shall be impounded
as required by subsections (d)(9)(A)(ii) and
(d)(9)(B)(ii).
(F) As used in this Section, "last sentence" means
the sentence, order of supervision, or order of
qualified probation (as defined by subsection
(a)(1)(J)), for a criminal offense (as defined by

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subsection (a)(1)(D)) that terminates last in time in
any jurisdiction, regardless of whether the petitioner
has included the criminal offense for which the
sentence or order of supervision or qualified
probation was imposed in his or her petition. If
multiple sentences, orders of supervision, or orders
of qualified probation terminate on the same day and
are last in time, they shall be collectively considered
the "last sentence" regardless of whether they were
ordered to run concurrently.
(G) "Minor traffic offense" means a petty offense,
business offense, or Class C misdemeanor under the
Illinois Vehicle Code or a similar provision of a
municipal or local ordinance.
(H) "Municipal ordinance violation" means an
offense defined by a municipal or local ordinance that
is criminal in nature and with which the petitioner was
charged or for which the petitioner was arrested and
released without charging.
(I) "Petitioner" means an adult or a minor
prosecuted as an adult who has applied for relief under
this Section.
(J) "Qualified probation" means an order of
probation under Section 10 of the Cannabis Control Act,
Section 410 of the Illinois Controlled Substances Act,
Section 70 of the Methamphetamine Control and

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Community Protection Act, Section 5-6-3.3 of the
Unified Code of Corrections, Section 12-4.3(b)(1) and
(2) of the Criminal Code of 1961 (as those provisions
existed before their deletion by Public Act 89-313),
Section 10-102 of the Illinois Alcoholism and Other
Drug Dependency Act, Section 40-10 of the Alcoholism
and Other Drug Abuse and Dependency Act, or Section 10
of the Steroid Control Act. For the purpose of this
Section, "successful completion" of an order of
qualified probation under Section 10-102 of the
Illinois Alcoholism and Other Drug Dependency Act and
Section 40-10 of the Alcoholism and Other Drug Abuse
and Dependency Act means that the probation was
terminated satisfactorily and the judgment of
conviction was vacated.
(K) "Seal" means to physically and electronically
maintain the records, unless the records would
otherwise be destroyed due to age, but to make the
records unavailable without a court order, subject to
the exceptions in Sections 12 and 13 of this Act. The
petitioner's name shall also be obliterated from the
official index required to be kept by the circuit court
clerk under Section 16 of the Clerks of Courts Act, but
any index issued by the circuit court clerk before the
entry of the order to seal shall not be affected.
(L) "Sexual offense committed against a minor"

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includes but is not limited to the offenses of indecent
solicitation of a child or criminal sexual abuse when
the victim of such offense is under 18 years of age.
(M) "Terminate" as it relates to a sentence or
order of supervision or qualified probation includes
either satisfactory or unsatisfactory termination of
the sentence, unless otherwise specified in this
Section.
(2) Minor Traffic Offenses. Orders of supervision or
convictions for minor traffic offenses shall not affect a
petitioner's eligibility to expunge or seal records
pursuant to this Section.
(3) Exclusions. Except as otherwise provided in
subsections (b)(5), (b)(6), (b)(8), (e), and (e-5) of this
Section, the court shall not order:
(A) the sealing or expungement of the records of
arrests or charges not initiated by arrest that result
in an order of supervision for or conviction of: (i)
any sexual offense committed against a minor; (ii)
Section 11-501 of the Illinois Vehicle Code or a
similar provision of a local ordinance; or (iii)
Section 11-503 of the Illinois Vehicle Code or a
similar provision of a local ordinance, unless the
arrest or charge is for a misdemeanor violation of
subsection (a) of Section 11-503 or a similar provision
of a local ordinance, that occurred prior to the

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offender reaching the age of 25 years and the offender
has no other conviction for violating Section 11-501 or
11-503 of the Illinois Vehicle Code or a similar
provision of a local ordinance.
(B) the sealing or expungement of records of minor
traffic offenses (as defined in subsection (a)(1)(G)),
unless the petitioner was arrested and released
without charging.
(C) the sealing of the records of arrests or
charges not initiated by arrest which result in an
order of supervision, an order of qualified probation
(as defined in subsection (a)(1)(J)), or a conviction
for the following offenses:
(i) offenses included in Article 11 of the
Criminal Code of 1961 or the Criminal Code of 2012
or a similar provision of a local ordinance, except
Section 11-14 of the Criminal Code of 1961 or the
Criminal Code of 2012, or a similar provision of a
local ordinance;
(ii) Section 11-1.50, 12-3.4, 12-15, 12-30,
26-5, or 48-1 of the Criminal Code of 1961 or the
Criminal Code of 2012, or a similar provision of a
local ordinance;
(iii) offenses defined as "crimes of violence"
in Section 2 of the Crime Victims Compensation Act
or a similar provision of a local ordinance;

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(iv) offenses which are Class A misdemeanors
under the Humane Care for Animals Act; or
(v) any offense or attempted offense that
would subject a person to registration under the
Sex Offender Registration Act.
(D) the sealing of the records of an arrest which
results in the petitioner being charged with a felony
offense or records of a charge not initiated by arrest
for a felony offense unless:
(i) the charge is amended to a misdemeanor and
is otherwise eligible to be sealed pursuant to
subsection (c);
(ii) the charge is brought along with another
charge as a part of one case and the charge results
in acquittal, dismissal, or conviction when the
conviction was reversed or vacated, and another
charge brought in the same case results in a
disposition for a misdemeanor offense that is
eligible to be sealed pursuant to subsection (c) or
a disposition listed in paragraph (i), (iii), or
(iv) of this subsection;
(iii) the charge results in first offender
probation as set forth in subsection (c)(2)(E);
(iv) the charge is for a Class 4 felony offense
listed in subsection (c)(2)(F) or the charge is
amended to a Class 4 felony offense listed in

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subsection (c)(2)(F). Records of arrests which
result in the petitioner being charged with a Class
4 felony offense listed in subsection (c)(2)(F),
records of charges not initiated by arrest for
Class 4 felony offenses listed in subsection
(c)(2)(F), and records of charges amended to a
Class 4 felony offense listed in (c)(2)(F) may be
sealed, regardless of the disposition, subject to
any waiting periods set forth in subsection
(c)(3);
(v) the charge results in acquittal,
dismissal, or the petitioner's release without
conviction; or
(vi) the charge results in a conviction, but
the conviction was reversed or vacated.
(b) Expungement.
(1) A petitioner may petition the circuit court to
expunge the records of his or her arrests and charges not
initiated by arrest when:
(A) He or she has never been convicted of a
criminal offense; and
(B) Each arrest or charge not initiated by arrest
sought to be expunged resulted in: (i) acquittal,
dismissal, or the petitioner's release without
charging, unless excluded by subsection (a)(3)(B);
(ii) a conviction which was vacated or reversed, unless

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excluded by subsection (a)(3)(B); (iii) an order of
supervision and such supervision was successfully
completed by the petitioner, unless excluded by
subsection (a)(3)(A) or (a)(3)(B); or (iv) an order of
qualified probation (as defined in subsection
(a)(1)(J)) and such probation was successfully
completed by the petitioner.
(2) Time frame for filing a petition to expunge.
(A) When the arrest or charge not initiated by
arrest sought to be expunged resulted in an acquittal,
dismissal, the petitioner's release without charging,
or the reversal or vacation of a conviction, there is
no waiting period to petition for the expungement of
such records.
(B) When the arrest or charge not initiated by
arrest sought to be expunged resulted in an order of
supervision, successfully completed by the petitioner,
the following time frames will apply:
(i) Those arrests or charges that resulted in
orders of supervision under Section 3-707, 3-708,
3-710, or 5-401.3 of the Illinois Vehicle Code or a
similar provision of a local ordinance, or under
Section 11-1.50, 12-3.2, or 12-15 of the Criminal
Code of 1961 or the Criminal Code of 2012, or a
similar provision of a local ordinance, shall not
be eligible for expungement until 5 years have

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passed following the satisfactory termination of
the supervision.
(i-5) Those arrests or charges that resulted
in orders of supervision for a misdemeanor
violation of subsection (a) of Section 11-503 of
the Illinois Vehicle Code or a similar provision of
a local ordinance, that occurred prior to the
offender reaching the age of 25 years and the
offender has no other conviction for violating
Section 11-501 or 11-503 of the Illinois Vehicle
Code or a similar provision of a local ordinance
shall not be eligible for expungement until the
petitioner has reached the age of 25 years.
(ii) Those arrests or charges that resulted in
orders of supervision for any other offenses shall
not be eligible for expungement until 2 years have
passed following the satisfactory termination of
the supervision.
(C) When the arrest or charge not initiated by
arrest sought to be expunged resulted in an order of
qualified probation, successfully completed by the
petitioner, such records shall not be eligible for
expungement until 5 years have passed following the
satisfactory termination of the probation.
(3) Those records maintained by the Department for
persons arrested prior to their 17th birthday shall be

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expunged as provided in Section 5-915 of the Juvenile Court
Act of 1987.
(4) Whenever a person has been arrested for or
convicted of any offense, in the name of a person whose
identity he or she has stolen or otherwise come into
possession of, the aggrieved person from whom the identity
was stolen or otherwise obtained without authorization,
upon learning of the person having been arrested using his
or her identity, may, upon verified petition to the chief
judge of the circuit wherein the arrest was made, have a
court order entered nunc pro tunc by the Chief Judge to
correct the arrest record, conviction record, if any, and
all official records of the arresting authority, the
Department, other criminal justice agencies, the
prosecutor, and the trial court concerning such arrest, if
any, by removing his or her name from all such records in
connection with the arrest and conviction, if any, and by
inserting in the records the name of the offender, if known
or ascertainable, in lieu of the aggrieved's name. The
records of the circuit court clerk shall be sealed until
further order of the court upon good cause shown and the
name of the aggrieved person obliterated on the official
index required to be kept by the circuit court clerk under
Section 16 of the Clerks of Courts Act, but the order shall
not affect any index issued by the circuit court clerk
before the entry of the order. Nothing in this Section

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shall limit the Department of State Police or other
criminal justice agencies or prosecutors from listing
under an offender's name the false names he or she has
used.
(5) Whenever a person has been convicted of criminal
sexual assault, aggravated criminal sexual assault,
predatory criminal sexual assault of a child, criminal
sexual abuse, or aggravated criminal sexual abuse, the
victim of that offense may request that the State's
Attorney of the county in which the conviction occurred
file a verified petition with the presiding trial judge at
the petitioner's trial to have a court order entered to
seal the records of the circuit court clerk in connection
with the proceedings of the trial court concerning that
offense. However, the records of the arresting authority
and the Department of State Police concerning the offense
shall not be sealed. The court, upon good cause shown,
shall make the records of the circuit court clerk in
connection with the proceedings of the trial court
concerning the offense available for public inspection.
(6) If a conviction has been set aside on direct review
or on collateral attack and the court determines by clear
and convincing evidence that the petitioner was factually
innocent of the charge, the court that finds the petitioner
factually innocent of the charge shall enter an expungement
order for the conviction for which the petitioner has been

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determined to be innocent as provided in subsection (b) of
Section 5-5-4 of the Unified Code of Corrections.
(7) Nothing in this Section shall prevent the
Department of State Police from maintaining all records of
any person who is admitted to probation upon terms and
conditions and who fulfills those terms and conditions
pursuant to Section 10 of the Cannabis Control Act, Section
410 of the Illinois Controlled Substances Act, Section 70
of the Methamphetamine Control and Community Protection
Act, Section 5-6-3.3 of the Unified Code of Corrections,
Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of
the Criminal Code of 1961 or the Criminal Code of 2012,
Section 10-102 of the Illinois Alcoholism and Other Drug
Dependency Act, Section 40-10 of the Alcoholism and Other
Drug Abuse and Dependency Act, or Section 10 of the Steroid
Control Act.
(8) If the petitioner has been granted a certificate of
innocence under Section 2-702 of the Code of Civil
Procedure, the court that grants the certificate of
innocence shall also enter an order expunging the
conviction for which the petitioner has been determined to
be innocent as provided in subsection (h) of Section 2-702
of the Code of Civil Procedure.
(c) Sealing.
(1) Applicability. Notwithstanding any other provision
of this Act to the contrary, and cumulative with any rights

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to expungement of criminal records, this subsection
authorizes the sealing of criminal records of adults and of
minors prosecuted as adults.
(2) Eligible Records. The following records may be
sealed:
(A) All arrests resulting in release without
charging;
(B) Arrests or charges not initiated by arrest
resulting in acquittal, dismissal, or conviction when
the conviction was reversed or vacated, except as
excluded by subsection (a)(3)(B);
(C) Arrests or charges not initiated by arrest
resulting in orders of supervision successfully
completed by the petitioner, unless excluded by
subsection (a)(3);
(D) Arrests or charges not initiated by arrest
resulting in convictions unless excluded by subsection
(a)(3);
(E) Arrests or charges not initiated by arrest
resulting in orders of first offender probation under
Section 10 of the Cannabis Control Act, Section 410 of
the Illinois Controlled Substances Act, Section 70 of
the Methamphetamine Control and Community Protection
Act, or Section 5-6-3.3 of the Unified Code of
Corrections; and
(F) Arrests or charges not initiated by arrest

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resulting in Class 4 felony convictions for the
following offenses:
(i) Section 11-14 of the Criminal Code of 1961
or the Criminal Code of 2012;
(ii) Section 4 of the Cannabis Control Act;
(iii) Section 402 of the Illinois Controlled
Substances Act;
(iv) the Methamphetamine Precursor Control
Act; and
(v) the Steroid Control Act.
(3) When Records Are Eligible to Be Sealed. Records
identified as eligible under subsection (c)(2) may be
sealed as follows:
(A) Records identified as eligible under
subsection (c)(2)(A) and (c)(2)(B) may be sealed at any
time.
(B) Records identified as eligible under
subsection (c)(2)(C) may be sealed (i) 3 years after
the termination of petitioner's last sentence (as
defined in subsection (a)(1)(F)) if the petitioner has
never been convicted of a criminal offense (as defined
in subsection (a)(1)(D)); or (ii) 4 years after the
termination of the petitioner's last sentence (as
defined in subsection (a)(1)(F)) if the petitioner has
ever been convicted of a criminal offense (as defined
in subsection (a)(1)(D)).

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(C) Records identified as eligible under
subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be
sealed 4 years after the termination of the
petitioner's last sentence (as defined in subsection
(a)(1)(F)).
(D) Records identified in subsection
(a)(3)(A)(iii) may be sealed after the petitioner has
reached the age of 25 years.
(4) Subsequent felony convictions. A person may not
have subsequent felony conviction records sealed as
provided in this subsection (c) if he or she is convicted
of any felony offense after the date of the sealing of
prior felony convictions as provided in this subsection
(c). The court may, upon conviction for a subsequent felony
offense, order the unsealing of prior felony conviction
records previously ordered sealed by the court.
(5) Notice of eligibility for sealing. Upon entry of a
disposition for an eligible record under this subsection
(c), the petitioner shall be informed by the court of the
right to have the records sealed and the procedures for the
sealing of the records.
(d) Procedure. The following procedures apply to
expungement under subsections (b) and (e), and sealing under
subsections (c) and (e-5):
(1) Filing the petition. Upon becoming eligible to
petition for the expungement or sealing of records under

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this Section, the petitioner shall file a petition
requesting the expungement or sealing of records with the
clerk of the court where the arrests occurred or the
charges were brought, or both. If arrests occurred or
charges were brought in multiple jurisdictions, a petition
must be filed in each such jurisdiction. The petitioner
shall pay the applicable fee, if not waived.
(2) Contents of petition. The petition shall be
verified and shall contain the petitioner's name, date of
birth, current address and, for each arrest or charge not
initiated by arrest sought to be sealed or expunged, the
case number, the date of arrest (if any), the identity of
the arresting authority, and such other information as the
court may require. During the pendency of the proceeding,
the petitioner shall promptly notify the circuit court
clerk of any change of his or her address. If the
petitioner has received a certificate of eligibility for
sealing from the Prisoner Review Board under paragraph (10)
of subsection (a) of Section 3-3-2 of the Unified Code of
Corrections, the certificate shall be attached to the
petition.
(3) Drug test. The petitioner must attach to the
petition proof that the petitioner has passed a test taken
within 30 days before the filing of the petition showing
the absence within his or her body of all illegal
substances as defined by the Illinois Controlled

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Substances Act, the Methamphetamine Control and Community
Protection Act, and the Cannabis Control Act if he or she
is petitioning to seal felony records pursuant to clause
(c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is
petitioning to expunge felony records of a qualified
probation pursuant to clause (b)(1)(B)(iv).
(4) Service of petition. The circuit court clerk shall
promptly serve a copy of the petition on the State's
Attorney or prosecutor charged with the duty of prosecuting
the offense, the Department of State Police, the arresting
agency and the chief legal officer of the unit of local
government effecting the arrest.
(5) Objections.
(A) Any party entitled to notice of the petition
may file an objection to the petition. All objections
shall be in writing, shall be filed with the circuit
court clerk, and shall state with specificity the basis
of the objection.
(B) Objections to a petition to expunge or seal
must be filed within 60 days of the date of service of
the petition.
(6) Entry of order.
(A) The Chief Judge of the circuit wherein the
charge was brought, any judge of that circuit
designated by the Chief Judge, or in counties of less
than 3,000,000 inhabitants, the presiding trial judge

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at the petitioner's trial, if any, shall rule on the
petition to expunge or seal as set forth in this
subsection (d)(6).
(B) Unless the State's Attorney or prosecutor, the
Department of State Police, the arresting agency, or
the chief legal officer files an objection to the
petition to expunge or seal within 60 days from the
date of service of the petition, the court shall enter
an order granting or denying the petition.
(7) Hearings. If an objection is filed, the court shall
set a date for a hearing and notify the petitioner and all
parties entitled to notice of the petition of the hearing
date at least 30 days prior to the hearing, and shall hear
evidence on whether the petition should or should not be
granted, and shall grant or deny the petition to expunge or
seal the records based on the evidence presented at the
hearing.
(8) Service of order. After entering an order to
expunge or seal records, the court must provide copies of
the order to the Department, in a form and manner
prescribed by the Department, to the petitioner, to the
State's Attorney or prosecutor charged with the duty of
prosecuting the offense, to the arresting agency, to the
chief legal officer of the unit of local government
effecting the arrest, and to such other criminal justice
agencies as may be ordered by the court.

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(9) Effect of order.
(A) Upon entry of an order to expunge records
pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both:
(i) the records shall be expunged (as defined
in subsection (a)(1)(E)) by the arresting agency,
the Department, and any other agency as ordered by
the court, within 60 days of the date of service of
the order, unless a motion to vacate, modify, or
reconsider the order is filed pursuant to
paragraph (12) of subsection (d) of this Section;
(ii) the records of the circuit court clerk
shall be impounded until further order of the court
upon good cause shown and the name of the
petitioner obliterated on the official index
required to be kept by the circuit court clerk
under Section 16 of the Clerks of Courts Act, but
the order shall not affect any index issued by the
circuit court clerk before the entry of the order;
and
(iii) in response to an inquiry for expunged
records, the court, the Department, or the agency
receiving such inquiry, shall reply as it does in
response to inquiries when no records ever
existed.
(B) Upon entry of an order to expunge records
pursuant to (b)(2)(B)(i) or (b)(2)(C), or both:

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(i) the records shall be expunged (as defined
in subsection (a)(1)(E)) by the arresting agency
and any other agency as ordered by the court,
within 60 days of the date of service of the order,
unless a motion to vacate, modify, or reconsider
the order is filed pursuant to paragraph (12) of
subsection (d) of this Section;
(ii) the records of the circuit court clerk
shall be impounded until further order of the court
upon good cause shown and the name of the
petitioner obliterated on the official index
required to be kept by the circuit court clerk
under Section 16 of the Clerks of Courts Act, but
the order shall not affect any index issued by the
circuit court clerk before the entry of the order;
(iii) the records shall be impounded by the
Department within 60 days of the date of service of
the order as ordered by the court, unless a motion
to vacate, modify, or reconsider the order is filed
pursuant to paragraph (12) of subsection (d) of
this Section;
(iv) records impounded by the Department may
be disseminated by the Department only as required
by law or to the arresting authority, the State's
Attorney, and the court upon a later arrest for the
same or a similar offense or for the purpose of

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sentencing for any subsequent felony, and to the
Department of Corrections upon conviction for any
offense; and
(v) in response to an inquiry for such records
from anyone not authorized by law to access such
records the court, the Department, or the agency
receiving such inquiry shall reply as it does in
response to inquiries when no records ever
existed.
(C) Upon entry of an order to seal records under
subsection (c), the arresting agency, any other agency
as ordered by the court, the Department, and the court
shall seal the records (as defined in subsection
(a)(1)(K)). In response to an inquiry for such records
from anyone not authorized by law to access such
records the court, the Department, or the agency
receiving such inquiry shall reply as it does in
response to inquiries when no records ever existed.
(10) Fees. The Department may charge the petitioner a
fee equivalent to the cost of processing any order to
expunge or seal records. Notwithstanding any provision of
the Clerks of Courts Act to the contrary, the circuit court
clerk may charge a fee equivalent to the cost associated
with the sealing or expungement of records by the circuit
court clerk. From the total filing fee collected for the
petition to seal or expunge, the circuit court clerk shall

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deposit $10 into the Circuit Court Clerk Operation and
Administrative Fund, to be used to offset the costs
incurred by the circuit court clerk in performing the
additional duties required to serve the petition to seal or
expunge on all parties. The circuit court clerk shall
collect and forward the Department of State Police portion
of the fee to the Department and it shall be deposited in
the State Police Services Fund.
(11) Final Order. No court order issued under the
expungement or sealing provisions of this Section shall
become final for purposes of appeal until 30 days after
service of the order on the petitioner and all parties
entitled to notice of the petition.
(12) Motion to Vacate, Modify, or Reconsider. The
petitioner or any party entitled to notice may file a
motion to vacate, modify, or reconsider the order granting
or denying the petition to expunge or seal within 60 days
of service of the order.
(e) Whenever a person who has been convicted of an offense
is granted a pardon by the Governor which specifically
authorizes expungement, he or she may, upon verified petition
to the Chief Judge of the circuit where the person had been
convicted, any judge of the circuit designated by the Chief
Judge, or in counties of less than 3,000,000 inhabitants, the
presiding trial judge at the defendant's trial, have a court
order entered expunging the record of arrest from the official

09800HB0821sam001 - 25 - LRB098 03649 RLC 45861 a
records of the arresting authority and order that the records
of the circuit court clerk and the Department 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 for which he or she had been pardoned but the order
shall not affect any index issued by the circuit court clerk
before the entry of the order. All records sealed by the
Department may be disseminated by the Department only to the
arresting authority, the State's Attorney, and the court upon a
later arrest for the same or similar offense or for the purpose
of sentencing for any subsequent felony. Upon conviction for
any subsequent offense, the Department of Corrections shall
have access to all sealed records of the Department pertaining
to that individual. Upon entry of the order of expungement, the
circuit court clerk shall promptly mail a copy of the order to
the person who was pardoned.
(e-5) Whenever a person who has been convicted of an
offense is granted a certificate of eligibility for sealing by
the Prisoner Review Board which specifically authorizes
sealing, he or she may, upon verified petition to the Chief
Judge of the circuit where the person had been convicted, any
judge of the circuit designated by the Chief Judge, or in
counties of less than 3,000,000 inhabitants, the presiding

09800HB0821sam001 - 26 - LRB098 03649 RLC 45861 a
trial judge at the petitioner's trial, have a court order
entered sealing the record of arrest from the official records
of the arresting authority and order that the records of the
circuit court clerk and the Department be sealed until further
order of the court upon good cause shown or as otherwise
provided herein, and the name of the petitioner 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 for
which he or she had been granted the certificate but the order
shall not affect any index issued by the circuit court clerk
before the entry of the order. All records sealed by the
Department may be disseminated by the Department only as
required by this Act or to the arresting authority, a law
enforcement agency, the State's Attorney, and the court upon a
later arrest for the same or similar offense or for the purpose
of sentencing for any subsequent felony. Upon conviction for
any subsequent offense, the Department of Corrections shall
have access to all sealed records of the Department pertaining
to that individual. Upon entry of the order of sealing, the
circuit court clerk shall promptly mail a copy of the order to
the person who was granted the certificate of eligibility for
sealing.
(f) Subject to available funding, the Illinois Department
of Corrections shall conduct a study of the impact of sealing,
especially on employment and recidivism rates, utilizing a

09800HB0821sam001 - 27 - LRB098 03649 RLC 45861 a
random sample of those who apply for the sealing of their
criminal records under Public Act 93-211. At the request of the
Illinois Department of Corrections, records of the Illinois
Department of Employment Security shall be utilized as
appropriate to assist in the study. The study shall not
disclose any data in a manner that would allow the
identification of any particular individual or employing unit.
The study shall be made available to the General Assembly no
later than September 1, 2010.
(Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10;
96-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff.
7-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443,
eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13;
97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff.
1-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.)
Section 10. The Unified Code of Corrections is amended by
changing Section 5-5-4 as follows:
(730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
Sec. 5-5-4. Resentences.
(a) Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a different
offense based on the same conduct which is more severe than the
prior sentence less the portion of the prior sentence

09800HB0821sam001 - 28 - LRB098 03649 RLC 45861 a
previously satisfied unless the more severe sentence is based
upon conduct on the part of the defendant occurring after the
original sentencing. If a sentence is vacated on appeal or on
collateral attack due to the failure of the trier of fact at
trial to determine beyond a reasonable doubt the existence of a
fact (other than a prior conviction) necessary to increase the
punishment for the offense beyond the statutory maximum
otherwise applicable, either the defendant may be re-sentenced
to a term within the range otherwise provided or, if the State
files notice of its intention to again seek the extended
sentence, the defendant shall be afforded a new trial.
(b) If a conviction or sentence has been set aside on
direct review or on collateral attack and the court determines
by clear and convincing evidence that the defendant was
factually innocent of the charge, the court shall enter an
order expunging 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. The court
shall enter the expungement order regardless of whether the

09800HB0821sam001 - 29 - LRB098 03649 RLC 45861 a
defendant has prior criminal convictions.
All records sealed by the Department of State Police may be
disseminated by the Department only as required by law or to
the arresting authority, the State's Attorney, the court upon a
later arrest for the same or similar offense, or for the
purpose of sentencing for any subsequent felony. Upon
conviction for any subsequent offense, the Department of
Corrections shall have access to all sealed records of the
Department pertaining to that individual.
Upon entry of the order of expungement, the clerk of the
circuit court shall promptly mail a copy of the order to the
person whose records were expunged and sealed.
(c) If a conviction has been vacated as a result of a claim
of actual innocence based on newly discovered evidence made
under Section 122-1 of the Code of Criminal Procedure of 1963
or Section 2-1401 of the Code of Civil Procedure, and the
provisions of paragraphs (1) and (2) of subsection (g) of
Section 2-702 of the Code of Civil Procedure are otherwise
satisfied, the court shall enter an order for a certificate of
innocence and an order expunging the conviction for which the
petitioner has been determined to be innocent as provided in
subsection (h) of Section 2-702 of the Code of Civil Procedure.
(Source: P.A. 93-210, eff. 7-18-03.)
Section 15. The Code of Civil Procedure is amended by
changing Section 2-702 as follows:

09800HB0821sam001 - 30 - LRB098 03649 RLC 45861 a
(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.
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,

09800HB0821sam001 - 31 - LRB098 03649 RLC 45861 a
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.
(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

09800HB0821sam001 - 32 - LRB098 03649 RLC 45861 a
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
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

09800HB0821sam001 - 33 - LRB098 03649 RLC 45861 a
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)
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.
(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
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

09800HB0821sam001 - 34 - LRB098 03649 RLC 45861 a
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. The court
shall enter the expungement order regardless of whether the
petitioner has prior criminal convictions.
All records sealed by the Department of State Police may be
disseminated by the Department only as required by law or to
the arresting authority, the State's Attorney, the court upon a
later arrest for the same or similar offense, or for the
purpose of sentencing for any subsequent felony. Upon
conviction for any subsequent offense, the Department of
Corrections shall have access to all sealed records of the
Department pertaining to that individual.
Upon entry of the order of expungement, the clerk of the
circuit court shall promptly mail a copy of the order to the
person whose records were expunged and sealed.
(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

09800HB0821sam001 - 35 - LRB098 03649 RLC 45861 a
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
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.)".