Bill Text: IL SB3502 | 2019-2020 | 101st General Assembly | Introduced
Bill Title: Amends the Code of Civil Procedure. Allows any party to intervene and present evidence and argument in opposition to a person seeking a certificate of innocence.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Failed) 2021-01-13 - Session Sine Die [SB3502 Detail]
Download: Illinois-2019-SB3502-Introduced.html
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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 legal | |||||||||||||||||||
18 | nomenclature which compels an innocent person to seek a pardon | |||||||||||||||||||
19 | for being wrongfully incarcerated. It is the intent of the | |||||||||||||||||||
20 | General Assembly that the court, in exercising its discretion | |||||||||||||||||||
21 | as permitted by law regarding the weight and admissibility of | |||||||||||||||||||
22 | evidence submitted pursuant to this Section, shall, in the | |||||||||||||||||||
23 | interest of justice, give due consideration to difficulties of |
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1 | proof caused by the passage of time, the death or | ||||||
2 | 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 and subsequently imprisoned for | ||||||
6 | one or more felonies by the State of Illinois which he or she | ||||||
7 | did not commit may, under the conditions hereinafter provided, | ||||||
8 | file a petition for certificate of innocence in the circuit | ||||||
9 | court of the county in which the person was convicted. The | ||||||
10 | petition shall request a certificate of innocence finding that | ||||||
11 | the petitioner was innocent of all offenses for which he or she | ||||||
12 | was incarcerated. | ||||||
13 | (c) In order to present the claim for certificate of | ||||||
14 | innocence of an unjust conviction and imprisonment, the | ||||||
15 | petitioner must attach to his or her petition documentation | ||||||
16 | demonstrating that: | ||||||
17 | (1) he or she has been convicted of one or more | ||||||
18 | felonies by the State of Illinois and subsequently | ||||||
19 | sentenced to a term of imprisonment, and has served all or | ||||||
20 | any part of the sentence; and | ||||||
21 | (2) his or her judgment of conviction was reversed or | ||||||
22 | vacated, and the indictment or information dismissed or, if | ||||||
23 | a new trial was ordered, either he or she was found not | ||||||
24 | guilty at the new trial or he or she was not retried and | ||||||
25 | the indictment or information dismissed; or the statute, or | ||||||
26 | application thereof, on which the indictment or |
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1 | information was based violated the Constitution of the | ||||||
2 | United States or the State of Illinois; and | ||||||
3 | (3) his or her claim is not time barred by the | ||||||
4 | provisions of subsection (i) of this Section. | ||||||
5 | (d) The petition shall state facts in sufficient detail to | ||||||
6 | permit the court to find that the petitioner is likely to | ||||||
7 | succeed at trial in proving that the petitioner is innocent of | ||||||
8 | the offenses charged in the indictment or information or his or | ||||||
9 | her acts or omissions charged in the indictment or information | ||||||
10 | did not constitute a felony or misdemeanor against the State of | ||||||
11 | Illinois, and the petitioner did not by his or her own conduct | ||||||
12 | voluntarily cause or bring about his or her conviction. The | ||||||
13 | petition shall be verified by the petitioner. | ||||||
14 | (e) A copy of the petition shall be served on the Attorney | ||||||
15 | General and the State's Attorney of the county where the | ||||||
16 | conviction was had. The Attorney General and the State's | ||||||
17 | Attorney of the county where the conviction was had shall have | ||||||
18 | the right to intervene as parties. | ||||||
19 | (f) In any hearing seeking a certificate of innocence, the | ||||||
20 | court may take judicial notice of prior sworn testimony or | ||||||
21 | evidence admitted in the criminal proceedings related to the | ||||||
22 | convictions which resulted in the alleged wrongful | ||||||
23 | incarceration, if the petitioner was either represented by | ||||||
24 | counsel at such prior proceedings or the right to counsel was | ||||||
25 | knowingly waived. | ||||||
26 | (g) In order to obtain a certificate of innocence the |
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1 | petitioner must prove by a preponderance of evidence that: | ||||||
2 | (1) the petitioner was convicted of one or more | ||||||
3 | felonies by the State of Illinois and subsequently | ||||||
4 | sentenced to a term of imprisonment, and has served all or | ||||||
5 | any part of the sentence; | ||||||
6 | (2)(A) the judgment of conviction was reversed or | ||||||
7 | vacated, and the indictment or information dismissed or, if | ||||||
8 | a new trial was ordered, either the petitioner was found | ||||||
9 | not guilty at the new trial or the petitioner was not | ||||||
10 | retried and the indictment or information dismissed; or (B) | ||||||
11 | the statute, or application thereof, on which the | ||||||
12 | indictment or information was based violated the | ||||||
13 | Constitution of the United States or the State of Illinois; | ||||||
14 | (3) the petitioner is innocent of the offenses charged | ||||||
15 | in the indictment or information or his or her acts or | ||||||
16 | omissions charged in the indictment or information did not | ||||||
17 | constitute a felony or misdemeanor against the State; and | ||||||
18 | (4) the petitioner did not by his or her own conduct
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19 | voluntarily cause or bring about his or her conviction. | ||||||
20 | (h) If the court finds that the petitioner is entitled to a
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21 | judgment, it shall enter a certificate of innocence finding | ||||||
22 | that
the petitioner was innocent of all offenses for which he | ||||||
23 | or she was incarcerated. Upon entry of the certificate of | ||||||
24 | innocence or pardon from the Governor stating that such pardon | ||||||
25 | was issued on the ground of innocence of the crime for which he | ||||||
26 | or she was imprisoned, (1) the clerk of the court shall |
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1 | transmit a copy of the certificate of innocence to the clerk of | ||||||
2 | the Court of Claims, together with the claimant's current | ||||||
3 | address; and (2) the court shall enter an order expunging the | ||||||
4 | record of arrest from the
official records of the
arresting | ||||||
5 | authority and order that the records of the clerk of the | ||||||
6 | circuit
court and Department of
State Police be sealed until | ||||||
7 | further order of the court upon good cause shown
or as | ||||||
8 | otherwise provided
herein, and the name of the defendant | ||||||
9 | obliterated from the official index
requested to be kept by the
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10 | circuit court clerk under Section 16 of the Clerks of Courts | ||||||
11 | Act in connection
with the arrest and
conviction for the | ||||||
12 | offense but the order shall not affect any index issued by
the | ||||||
13 | circuit court clerk before the entry of the order. The court | ||||||
14 | shall enter the expungement order regardless of whether the | ||||||
15 | petitioner has prior criminal convictions. | ||||||
16 | All records sealed by the Department of State Police may be
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17 | disseminated by the Department only as required by law or to | ||||||
18 | the arresting
authority, the State's Attorney, the court upon a | ||||||
19 | later arrest for the same or
similar offense, or for the | ||||||
20 | purpose of sentencing for any subsequent felony.
Upon | ||||||
21 | conviction for any subsequent offense, the Department of | ||||||
22 | Corrections shall
have access to all sealed records of the | ||||||
23 | Department
pertaining to that individual. | ||||||
24 | Upon entry of the order of expungement, the clerk of the | ||||||
25 | circuit court shall
promptly mail a copy of the order to the | ||||||
26 | person whose records were expunged and
sealed. |
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1 | (i) Any person seeking a certificate of innocence under | ||||||
2 | this
Section based on the dismissal of an indictment or | ||||||
3 | information
or acquittal that occurred before the effective | ||||||
4 | date of this
amendatory Act of the 95th General Assembly shall | ||||||
5 | file his or
her petition within 2 years after the effective | ||||||
6 | date of this
amendatory Act of the 95th General Assembly. Any | ||||||
7 | person seeking
a certificate of innocence under this Section | ||||||
8 | based on the
dismissal of an indictment or information or | ||||||
9 | acquittal that
occurred on or after the effective date of this | ||||||
10 | amendatory Act
of the 95th General Assembly shall file his or | ||||||
11 | her petition
within 2 years after the dismissal. | ||||||
12 | (j) The decision to grant or deny a certificate of | ||||||
13 | innocence shall be binding only with respect to claims filed in | ||||||
14 | the Court of Claims and shall not have a res judicata effect on | ||||||
15 | any other proceedings. Any party, including, but not limited | ||||||
16 | to, the State's Attorney of the county with jurisdiction and | ||||||
17 | the municipality, county, or agency of arrest, may intervene | ||||||
18 | and present evidence and argument in opposition to the person | ||||||
19 | seeking a certificate of innocence under this Section.
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20 | (Source: P.A. 98-133, eff. 1-1-14.)
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