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| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5772 Introduced , by Rep. Dennis M. Reboletti SYNOPSIS AS INTRODUCED:
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| 205 ILCS 657/90 | | 720 ILCS 5/29B-1 | from Ch. 38, par. 29B-1 | 720 ILCS 5/29B-2 new | | 720 ILCS 5/29B-3 new | | 725 ILCS 5/111-4 | | 730 ILCS 5/5-5-3 | from Ch. 38, par. 1005-5-3 |
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Amends the Transmitters of Money Act. Deletes provision that a person who engages in conduct requiring a license under the Act and
fails to obtain a license from the Director is guilty of a Class 3 felony. Amends the Criminal Code of 2012. In the statute concerning money laundering, provides that the laundering of property of a value exceeding $1,000,000 is a Class X felony. Creates the offense of engaging in monetary transactions in criminally derived property and the offense of unlawful money transmitting business. Defines offenses and establishes penalties. Amends the Code of Criminal Procedure of 1963. Provides that 2 or more acts or transactions involving money laundering, engaging in monetary transactions in criminally derived property, unlawful money transmitting business, online sale of stolen property, online theft by deception, electronic fencing, or workers' compensation fraud, may
be charged as a single offense in a single count of the same indictment,
information, or complaint, if the acts or transactions by one or more
defendants are in furtherance of a single intention and design or if the
property, labor, or services obtained are of the same person or are of
several persons having a common interest in the property, labor, or
services. Amends the Unified Code of Corrections to make conforming changes.
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| | | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
| | A BILL FOR |
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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,
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| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Transmitters of Money Act is amended by |
| 5 | | changing Section 90 as follows:
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| 6 | | (205 ILCS 657/90)
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| 7 | | Sec. 90. Enforcement.
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| 8 | | (a) If it appears to the Director that a person
has |
| 9 | | committed or is about to commit a violation of this Act,
a rule |
| 10 | | promulgated under this Act, or an order of the Director, the |
| 11 | | Director
may apply to the circuit court for an order enjoining |
| 12 | | the person from violating
or continuing to violate this Act, |
| 13 | | the rule, or order and for
injunctive or other relief that the |
| 14 | | nature of the case may require and may,
in addition, request |
| 15 | | the court to assess a civil penalty up to $1,000
along with |
| 16 | | costs and attorney fees.
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| 17 | | (b) If the Director finds, after an investigation that he |
| 18 | | considers
appropriate, that a licensee or other person is |
| 19 | | engaged in practices
contrary to this Act or to the rules |
| 20 | | promulgated under this Act, the Director
may issue an order |
| 21 | | directing the licensee or person to cease and desist the
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| 22 | | violation. The Director may, in addition to or without the |
| 23 | | issuance of a cease
and desist order, assess an administrative |
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| 1 | | penalty up to
$1,000 against a licensee for each violation of |
| 2 | | this Act or the rules
promulgated under this Act.
The issuance |
| 3 | | of an order under this Section shall not be a prerequisite to |
| 4 | | the
taking of any action by the Director under this or any |
| 5 | | other Section of this
Act. The Director shall serve notice of |
| 6 | | his action, including a statement of
the reasons for his |
| 7 | | actions, either personally or by certified mail, return
receipt |
| 8 | | requested. Service by mail shall be deemed completed if the |
| 9 | | notice is
deposited in the post office, postage paid, addressed |
| 10 | | to the last known address
for a license.
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| 11 | | (c) In the case of the issuance of a cease and desist order |
| 12 | | or assessment
order, a hearing may be requested in writing |
| 13 | | within 30 days after the date of
service. The hearing shall be |
| 14 | | held at the time and place designated
by the Director in either |
| 15 | | the City of Springfield or the City of Chicago. The
Director |
| 16 | | and any administrative law judge designated by him shall have |
| 17 | | the
power to administer oaths and affirmations, subpoena |
| 18 | | witnesses and compel their
attendance, take evidence, |
| 19 | | authorize the taking of depositions, and require the
production |
| 20 | | of books, papers, correspondence, and other records or
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| 21 | | information that he considers relevant or material to the |
| 22 | | inquiry.
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| 23 | | (d) After the Director's final determination under a |
| 24 | | hearing under
this Section, a party to the proceedings whose |
| 25 | | interests are
affected by the Director's final determination |
| 26 | | shall be entitled to judicial
review of that final |
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| 1 | | determination under the Administrative Review Law.
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| 2 | | (e) The costs for administrative hearings shall be set by |
| 3 | | rule.
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| 4 | | (f) Except as otherwise provided in this Act, a violation |
| 5 | | of
this Act shall subject to the party violating it to a fine |
| 6 | | of $1,000 for
each offense.
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| 7 | | (g) Each transaction in violation of this Act or the rules |
| 8 | | promulgated
under this Act and each day that a violation |
| 9 | | continues shall be a separate
offense.
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| 10 | | (h) A person who engages in conduct requiring a license |
| 11 | | under this Act and
fails to obtain a license from the Director |
| 12 | | or knowingly makes a false
statement, misrepresentation, or |
| 13 | | false certification in an application,
financial statement, |
| 14 | | account record, report, or other document filed or
required to |
| 15 | | be maintained or filed under this Act or who knowingly makes a
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| 16 | | false entry or omits a material entry in a document is guilty |
| 17 | | of a Class
3 felony.
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| 18 | | (i) The Director is authorized to compromise, settle, and |
| 19 | | collect civil
penalties and administrative penalties, as set by |
| 20 | | rule, with any person for
violations of this Act or of any rule |
| 21 | | or order issued or
promulgated under this Act.
Any person who, |
| 22 | | without the required license, engages in conduct requiring a
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| 23 | | license
under this Act shall be liable to the Department in an
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| 24 | | amount equal to
the greater of (i) $5,000 or (ii) an amount of |
| 25 | | money accepted for transmission
plus an
amount equal to 3 times
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| 26 | | the
amount accepted for transmission. The Department shall |
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| 1 | | cause any funds so
recovered to be deposited in the TOMA |
| 2 | | Consumer Protection Fund.
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| 3 | | (j) The Director may enter into consent orders at any time |
| 4 | | with a person
to resolve a matter arising under this Act. A |
| 5 | | consent order must be signed
by the person to whom it is issued |
| 6 | | and must indicate agreement to the terms
contained in it. A |
| 7 | | consent order need not constitute an admission by a
person that |
| 8 | | this Act or a rule or order issued or
promulgated under this |
| 9 | | Act has been violated, nor need it constitute a finding
by the |
| 10 | | Director that the person has violated this Act or a rule
or |
| 11 | | order promulgated under this Act.
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| 12 | | (k) Notwithstanding the issuance of a consent order, the |
| 13 | | Director may seek
civil or criminal penalties or compromise |
| 14 | | civil penalties concerning matter
encompassed by the consent |
| 15 | | order unless the consent order by its terms
expressly precludes |
| 16 | | the Director from doing so.
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| 17 | | (l) Appeals from all final orders and judgments entered by |
| 18 | | the circuit
court
under this Section in review of a decision of |
| 19 | | the Director may be taken as in
other civil actions by any |
| 20 | | party to the proceeding.
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| 21 | | (Source: P.A. 93-535, eff. 1-1-04.)
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| 22 | | Section 10. The Criminal Code of 2012 is amended by |
| 23 | | changing Section 29B-1 and by adding Sections 29B-2 and 29B-3 |
| 24 | | as follows:
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| 1 | | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
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| 2 | | Sec. 29B-1. (a) A person commits the offense of money |
| 3 | | laundering:
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| 4 | | (1) when, knowing that the property involved in a |
| 5 | | financial transaction represents the proceeds of some form |
| 6 | | of unlawful activity, he or she conducts or attempts to |
| 7 | | conduct such a financial transaction which in fact involves |
| 8 | | criminally derived property: |
| 9 | | (A) with the intent to promote the carrying on of |
| 10 | | the unlawful activity from which the criminally |
| 11 | | derived property was obtained; or |
| 12 | | (B) where he or she knows or reasonably should know |
| 13 | | that the financial transaction is designed in whole or |
| 14 | | in part: |
| 15 | | (i) to conceal or disguise the nature, the |
| 16 | | location, the source, the ownership or the control |
| 17 | | of the criminally derived property; or |
| 18 | | (ii) to avoid a transaction reporting |
| 19 | | requirement under State law; or |
| 20 | | (1.5) when he or she transports, transmits, or |
| 21 | | transfers, or attempts to transport, transmit, or transfer |
| 22 | | a monetary instrument: |
| 23 | | (A) with the intent to promote the carrying on of |
| 24 | | the unlawful activity from which the criminally |
| 25 | | derived property was obtained; or |
| 26 | | (B) knowing, or having reason to know, that the |
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| 1 | | financial transaction is designed in whole or in part: |
| 2 | | (i) to conceal or disguise the nature, the |
| 3 | | location, the source, the ownership or the control |
| 4 | | of the criminally derived property; or |
| 5 | | (ii) to avoid a transaction reporting |
| 6 | | requirement under State law;
or
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| 7 | | (2) when, with the intent to:
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| 8 | | (A) promote the carrying on of a specified criminal |
| 9 | | activity as defined
in this Article; or
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| 10 | | (B) conceal or disguise the nature, location, |
| 11 | | source, ownership, or
control of property believed to |
| 12 | | be the proceeds of a specified criminal
activity as |
| 13 | | defined by subdivision (b)(6); or |
| 14 | | (C) avoid a transaction reporting requirement |
| 15 | | under State law,
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| 16 | | he or she conducts or attempts to conduct a financial |
| 17 | | transaction
involving property he or she believes to be the |
| 18 | | proceeds of specified criminal
activity as defined by |
| 19 | | subdivision (b)(6) or property used to conduct or
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| 20 | | facilitate specified criminal activity as defined by |
| 21 | | subdivision (b)(6).
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| 22 | | (b) As used in this Section:
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| 23 | | (0.5) "Knowing that the property involved in a |
| 24 | | financial transaction represents the proceeds of some form |
| 25 | | of unlawful activity" means that the person knew the |
| 26 | | property involved in the transaction represented proceeds |
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| 1 | | from some form, though not necessarily which form, of |
| 2 | | activity that constitutes a felony under State, federal, or |
| 3 | | foreign law.
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| 4 | | (1) "Financial transaction" means a purchase, sale, |
| 5 | | loan, pledge, gift,
transfer, delivery or other |
| 6 | | disposition utilizing criminally derived property,
and |
| 7 | | with respect to financial institutions, includes a |
| 8 | | deposit, withdrawal,
transfer between accounts, exchange |
| 9 | | of currency, loan, extension of credit,
purchase or sale of |
| 10 | | any stock, bond, certificate of deposit or other monetary
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| 11 | | instrument, use of safe deposit box, or any other payment, |
| 12 | | transfer or delivery by, through, or to a
financial |
| 13 | | institution.
For purposes of clause (a)(2) of this Section, |
| 14 | | the term "financial
transaction" also
means a transaction |
| 15 | | which without regard to whether the funds, monetary
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| 16 | | instruments, or real or personal property involved in the |
| 17 | | transaction are
criminally derived, any transaction which |
| 18 | | in any way or degree: (1) involves
the movement of funds by |
| 19 | | wire or any other means; (2) involves one or more
monetary |
| 20 | | instruments; or (3) the transfer of title to any real or |
| 21 | | personal
property.
The receipt by an attorney of bona fide |
| 22 | | fees for the purpose
of legal representation is not a |
| 23 | | financial transaction for purposes of this
Section.
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| 24 | | (2) "Financial institution" means any bank; saving and |
| 25 | | loan
association; trust company; agency or branch of a |
| 26 | | foreign bank in the
United States; currency exchange; |
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| 1 | | credit union, mortgage banking
institution; pawnbroker; |
| 2 | | loan or finance company; operator of a credit card
system; |
| 3 | | issuer, redeemer or cashier of travelers checks, checks or |
| 4 | | money
orders; dealer in precious metals, stones or jewels; |
| 5 | | broker or dealer in
securities or commodities; investment |
| 6 | | banker; or investment company.
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| 7 | | (3) "Monetary instrument" means United States coins |
| 8 | | and currency;
coins and currency of a foreign country; |
| 9 | | travelers checks; personal checks,
bank checks, and money |
| 10 | | orders; investment securities; bearer
negotiable |
| 11 | | instruments; bearer investment securities; or bearer |
| 12 | | securities
and certificates of stock in such form that |
| 13 | | title thereto passes upon
delivery.
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| 14 | | (4) "Criminally derived property" means: (A) any |
| 15 | | property, real or personal, constituting
or
derived from |
| 16 | | proceeds obtained, directly or indirectly, from activity |
| 17 | | that constitutes a felony under State, federal, or foreign |
| 18 | | law; or (B) any property
represented to be property |
| 19 | | constituting or derived from proceeds obtained,
directly |
| 20 | | or indirectly, from activity that constitutes a felony |
| 21 | | under State, federal, or foreign law.
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| 22 | | (5) "Conduct" or "conducts" includes, in addition to |
| 23 | | its ordinary
meaning, initiating, concluding, or |
| 24 | | participating in initiating or concluding
a transaction.
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| 25 | | (6) "Specified criminal activity" means any violation |
| 26 | | of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation |
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| 1 | | of Article 29D of this Code.
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| 2 | | (7) "Director" means the Director of State Police or |
| 3 | | his or her designated agents. |
| 4 | | (8) "Department" means the Department of State Police |
| 5 | | of the State of Illinois or its successor agency.
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| 6 | | (9) "Transaction reporting requirement under State |
| 7 | | law" means any violation as defined under the Currency |
| 8 | | Reporting Act.
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| 9 | | (c) Sentence.
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| 10 | | (1) Laundering of criminally derived property of a |
| 11 | | value not exceeding
$10,000 is a Class 3 felony;
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| 12 | | (2) Laundering of criminally derived property of a |
| 13 | | value exceeding
$10,000 but not exceeding $100,000 is a |
| 14 | | Class 2 felony;
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| 15 | | (3) Laundering of criminally derived property of a |
| 16 | | value exceeding
$100,000 but not exceeding $500,000 is a |
| 17 | | Class 1 felony;
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| 18 | | (4) Money laundering in violation of subsection (a)(2) |
| 19 | | of this Section
is a Class X felony;
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| 20 | | (5) Laundering of criminally derived property of a |
| 21 | | value exceeding
$500,000 is a
Class 1 non-probationable |
| 22 | | felony;
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| 23 | | (6) In a prosecution under clause (a)(1.5)(B)(ii) of |
| 24 | | this Section, the sentences are as follows: |
| 25 | | (A) Laundering of property of a value not exceeding |
| 26 | | $10,000 is a Class 3 felony; |
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| 1 | | (B) Laundering of property of a value exceeding |
| 2 | | $10,000 but not exceeding $100,000 is a Class 2 felony; |
| 3 | | (C) Laundering of property of a value exceeding |
| 4 | | $100,000 but not exceeding $500,000 is a Class 1 |
| 5 | | felony; |
| 6 | | (D) Laundering of property of a value exceeding |
| 7 | | $500,000 but not exceeding $1,000,000 is a Class 1 |
| 8 | | non-probationable felony. |
| 9 | | (E) Laundering of property of a value exceeding |
| 10 | | $1,000,000 is a Class X felony. |
| 11 | | (d) Evidence. In a prosecution under this Article, either |
| 12 | | party may introduce the following evidence pertaining to the |
| 13 | | issue of whether the property or proceeds were known to be some |
| 14 | | form of criminally derived property or from some form of |
| 15 | | unlawful activity: |
| 16 | | (1) A financial transaction was conducted or |
| 17 | | structured or attempted in violation of the reporting |
| 18 | | requirements of any State or federal law; or |
| 19 | | (2) A financial transaction was conducted or attempted |
| 20 | | with the use of a false or fictitious name or a forged |
| 21 | | instrument; or |
| 22 | | (3) A falsely altered or completed written instrument |
| 23 | | or a written instrument that contains any materially false |
| 24 | | personal identifying information was made, used, offered |
| 25 | | or presented, whether accepted or not, in connection with a |
| 26 | | financial transaction; or |
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| 1 | | (4) A financial transaction was structured or |
| 2 | | attempted to be structured so as to falsely report the |
| 3 | | actual consideration or value of the transaction; or |
| 4 | | (5) A money transmitter, a person engaged in a trade or |
| 5 | | business or any employee of a money transmitter or a person |
| 6 | | engaged in a trade or business, knows or reasonably should |
| 7 | | know that false personal identifying information has been |
| 8 | | presented and incorporates the false personal identifying |
| 9 | | information into any report or record; or |
| 10 | | (6) The criminally derived property is transported or |
| 11 | | possessed in a fashion inconsistent with the ordinary or |
| 12 | | usual means of transportation or possession of such |
| 13 | | property and where the property is discovered in the |
| 14 | | absence of any documentation or other indicia of legitimate |
| 15 | | origin or right to such property; or |
| 16 | | (7) A person pays or receives substantially less than |
| 17 | | face value for one or more monetary instruments; or |
| 18 | | (8) A person engages in a transaction involving one or |
| 19 | | more monetary instruments, where the physical condition or |
| 20 | | form of the monetary instrument or instruments makes it |
| 21 | | apparent that they are not the product of bona fide |
| 22 | | business or financial transactions. |
| 23 | | (e) Duty to enforce this Article. |
| 24 | | (1) It is the duty of the Department of State Police, |
| 25 | | and its agents, officers, and investigators, to enforce all |
| 26 | | provisions of this Article, except those specifically |
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| 1 | | delegated, and to cooperate with all agencies charged with |
| 2 | | the enforcement of the laws of the United States, or of any |
| 3 | | state, relating to money laundering. Only an agent, |
| 4 | | officer, or investigator designated by the Director may be |
| 5 | | authorized in accordance with this Section to serve seizure |
| 6 | | notices, warrants, subpoenas, and summonses under the |
| 7 | | authority of this State. |
| 8 | | (2) Any agent, officer, investigator, or peace officer |
| 9 | | designated by the Director may: (A) make seizure of |
| 10 | | property pursuant to the provisions of this Article; and |
| 11 | | (B) perform such other law enforcement duties as the |
| 12 | | Director designates. It is the duty of all State's |
| 13 | | Attorneys to prosecute violations of this Article and |
| 14 | | institute legal proceedings as authorized under this |
| 15 | | Article. |
| 16 | | (f) Protective orders. |
| 17 | | (1) Upon application of the State, the court may enter |
| 18 | | a restraining order or injunction, require the execution of |
| 19 | | a satisfactory performance bond, or take any other action |
| 20 | | to preserve the availability of property described in |
| 21 | | subsection (h) for forfeiture under this Article: |
| 22 | | (A) upon the filing of an indictment, information, |
| 23 | | or complaint charging a violation of this Article for |
| 24 | | which forfeiture may be ordered under this Article and |
| 25 | | alleging that the property with respect to which the |
| 26 | | order is sought would be subject to forfeiture under |
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| 1 | | this Article; or
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| 2 | | (B) prior to the filing of such an indictment, |
| 3 | | information, or complaint, if, after notice to persons |
| 4 | | appearing to have an interest in the property and |
| 5 | | opportunity for a hearing, the court determines that: |
| 6 | | (i) there is probable cause to believe that the |
| 7 | | State will prevail on the issue of forfeiture and |
| 8 | | that failure to enter the order will result in the |
| 9 | | property being destroyed, removed from the |
| 10 | | jurisdiction of the court, or otherwise made |
| 11 | | unavailable for forfeiture; and |
| 12 | | (ii) the need to preserve the availability of |
| 13 | | the property through the entry of the requested |
| 14 | | order outweighs the hardship on any party against |
| 15 | | whom the order is to be entered. |
| 16 | | Provided, however, that an order entered pursuant |
| 17 | | to subparagraph (B) shall be effective for not more |
| 18 | | than 90 days, unless extended by the court for good |
| 19 | | cause shown or unless an indictment, information, |
| 20 | | complaint, or administrative notice has been filed. |
| 21 | | (2) A temporary restraining order under this |
| 22 | | subsection may be entered upon application of the State |
| 23 | | without notice or opportunity for a hearing when an |
| 24 | | indictment, information, complaint, or administrative |
| 25 | | notice has not yet been filed with respect to the property, |
| 26 | | if the State demonstrates that there is probable cause to |
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| 1 | | believe that the property with respect to which the order |
| 2 | | is sought would be subject to forfeiture under this Section |
| 3 | | and that provision of notice will jeopardize the |
| 4 | | availability of the property for forfeiture. Such a |
| 5 | | temporary order shall expire not more than 30 days after |
| 6 | | the date on which it is entered, unless extended for good |
| 7 | | cause shown or unless the party against whom it is entered |
| 8 | | consents to an extension for a longer period. A hearing |
| 9 | | requested concerning an order entered under this paragraph |
| 10 | | shall be held at the earliest possible time and prior to |
| 11 | | the expiration of the temporary order. |
| 12 | | (3) The court may receive and consider, at a hearing |
| 13 | | held pursuant to this subsection (f), evidence and |
| 14 | | information that would be inadmissible under the Illinois |
| 15 | | rules of evidence.
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| 16 | | (4) Order to repatriate and deposit. |
| 17 | | (A) In general. Pursuant to its authority to enter |
| 18 | | a pretrial restraining order under this Section, the |
| 19 | | court may order a defendant to repatriate any property |
| 20 | | that may be seized and forfeited and to deposit that |
| 21 | | property pending trial with the Illinois State Police |
| 22 | | or another law enforcement agency designated by the |
| 23 | | Illinois State Police. |
| 24 | | (B) Failure to comply. Failure to comply with an |
| 25 | | order under this subsection (f) is punishable as a |
| 26 | | civil or criminal contempt of court.
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| 1 | | (g) Warrant of seizure. The State may request the issuance |
| 2 | | of a warrant authorizing the seizure of property described in |
| 3 | | subsection (h) in the same manner as provided for a search |
| 4 | | warrant. If the court determines that there is probable cause |
| 5 | | to believe that the property to be seized would be subject to |
| 6 | | forfeiture, the court shall issue a warrant authorizing the |
| 7 | | seizure of such property. |
| 8 | | (h) Forfeiture. |
| 9 | | (1) The following are subject to forfeiture: |
| 10 | | (A) any property, real or personal, constituting, |
| 11 | | derived from, or traceable to any proceeds the person |
| 12 | | obtained directly or indirectly, as a result of a |
| 13 | | violation of this Article; |
| 14 | | (B) any of the person's property used, or intended |
| 15 | | to be used, in any manner or part, to commit, or to |
| 16 | | facilitate the commission of, a violation of this |
| 17 | | Article; |
| 18 | | (C) all conveyances, including aircraft, vehicles |
| 19 | | or vessels, which are used, or intended for use, to |
| 20 | | transport, or in any manner to facilitate the |
| 21 | | transportation, sale, receipt, possession, or |
| 22 | | concealment of property described in subparagraphs (A) |
| 23 | | and (B), but: |
| 24 | | (i) no conveyance used by any person as a |
| 25 | | common carrier in the transaction of business as a |
| 26 | | common carrier is subject to forfeiture under this |
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| 1 | | Section unless it appears that the owner or other |
| 2 | | person in charge of the conveyance is a consenting |
| 3 | | party or privy to a violation of this Article; |
| 4 | | (ii) no conveyance is subject to forfeiture |
| 5 | | under this Section by reason of any act or omission |
| 6 | | which the owner proves to have been committed or |
| 7 | | omitted without his or her knowledge or consent; |
| 8 | | (iii) a forfeiture of a conveyance encumbered |
| 9 | | by a bona fide security interest is subject to the |
| 10 | | interest of the secured party if he or she neither |
| 11 | | had knowledge of nor consented to the act or |
| 12 | | omission; |
| 13 | | (D) all real property, including any right, title, |
| 14 | | and interest (including, but not limited to, any |
| 15 | | leasehold interest or the beneficial interest in a land |
| 16 | | trust) in the whole of any lot or tract of land and any |
| 17 | | appurtenances or improvements, which is used or |
| 18 | | intended to be used, in any manner or part, to commit, |
| 19 | | or in any manner to facilitate the commission of, any |
| 20 | | violation of this Article or that is the proceeds of |
| 21 | | any violation or act that constitutes a violation of |
| 22 | | this Article.
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| 23 | | (2) Property subject to forfeiture under this Article |
| 24 | | may be seized by the Director or any peace officer upon |
| 25 | | process or seizure warrant issued by any court having |
| 26 | | jurisdiction over the property. Seizure by the Director or |
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| 1 | | any peace officer without process may be made: |
| 2 | | (A) if the seizure is incident to a seizure |
| 3 | | warrant; |
| 4 | | (B) if the property subject to seizure has been the |
| 5 | | subject of a prior judgment in favor of the State in a |
| 6 | | criminal proceeding, or in an injunction or forfeiture |
| 7 | | proceeding based upon this Article; |
| 8 | | (C) if there is probable cause to believe that the |
| 9 | | property is directly or indirectly dangerous to health |
| 10 | | or safety; |
| 11 | | (D) if there is probable cause to believe that the |
| 12 | | property is subject to forfeiture under this Article |
| 13 | | and the property is seized under circumstances in which |
| 14 | | a warrantless seizure or arrest would be reasonable; or |
| 15 | | (E) in accordance with the Code of Criminal |
| 16 | | Procedure of 1963. |
| 17 | | (3) In the event of seizure pursuant to paragraph (2), |
| 18 | | forfeiture proceedings shall be instituted in accordance |
| 19 | | with subsections (i) through (r). |
| 20 | | (4) Property taken or detained under this Section shall |
| 21 | | not be subject to replevin, but is deemed to be in the |
| 22 | | custody of the Director subject only to the order and |
| 23 | | judgments of the circuit court having jurisdiction over the |
| 24 | | forfeiture proceedings and the decisions of the State's |
| 25 | | Attorney under this Article. When property is seized under |
| 26 | | this Article, the seizing agency shall promptly conduct an |
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| 1 | | inventory of the seized property and estimate the |
| 2 | | property's value and shall forward a copy of the inventory |
| 3 | | of seized property and the estimate of the property's value |
| 4 | | to the Director. Upon receiving notice of seizure, the |
| 5 | | Director may: |
| 6 | | (A) place the property under seal; |
| 7 | | (B) remove the property to a place designated by |
| 8 | | the Director; |
| 9 | | (C) keep the property in the possession of the |
| 10 | | seizing agency; |
| 11 | | (D) remove the property to a storage area for |
| 12 | | safekeeping or, if the property is a negotiable |
| 13 | | instrument or money and is not needed for evidentiary |
| 14 | | purposes, deposit it in an interest bearing account; |
| 15 | | (E) place the property under constructive seizure |
| 16 | | by posting notice of pending forfeiture on it, by |
| 17 | | giving notice of pending forfeiture to its owners and |
| 18 | | interest holders, or by filing notice of pending |
| 19 | | forfeiture in any appropriate public record relating |
| 20 | | to the property; or |
| 21 | | (F) provide for another agency or custodian, |
| 22 | | including an owner, secured party, or lienholder, to |
| 23 | | take custody of the property upon the terms and |
| 24 | | conditions set by the Director. |
| 25 | | (5) When property is forfeited under this Article, the |
| 26 | | Director shall sell all such property unless such property |
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| 1 | | is required by law to be destroyed or is harmful to the |
| 2 | | public, and shall distribute the proceeds of the sale, |
| 3 | | together with any moneys forfeited or seized, in accordance |
| 4 | | with paragraph (6). However, upon the application of the |
| 5 | | seizing agency or prosecutor who was responsible for the |
| 6 | | investigation, arrest or arrests and prosecution which |
| 7 | | lead to the forfeiture, the Director may return any item of |
| 8 | | forfeited property to the seizing agency or prosecutor for |
| 9 | | official use in the enforcement of laws, if the agency or |
| 10 | | prosecutor can demonstrate that the item requested would be |
| 11 | | useful to the agency or prosecutor in its enforcement |
| 12 | | efforts. When any real property returned to the seizing |
| 13 | | agency is sold by the agency or its unit of government, the |
| 14 | | proceeds of the sale shall be delivered to the Director and |
| 15 | | distributed in accordance with paragraph (6). |
| 16 | | (6) All monies and the sale proceeds of all other |
| 17 | | property forfeited and seized under this Article shall be |
| 18 | | distributed as follows: |
| 19 | | (A) 65% shall be distributed to the metropolitan |
| 20 | | enforcement group, local, municipal, county, or State |
| 21 | | law enforcement agency or agencies which conducted or |
| 22 | | participated in the investigation resulting in the |
| 23 | | forfeiture. The distribution shall bear a reasonable |
| 24 | | relationship to the degree of direct participation of |
| 25 | | the law enforcement agency in the effort resulting in |
| 26 | | the forfeiture, taking into account the total value of |
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| 1 | | the property forfeited and the total law enforcement |
| 2 | | effort with respect to the violation of the law upon |
| 3 | | which the forfeiture is based. Amounts distributed to |
| 4 | | the agency or agencies shall be used for the |
| 5 | | enforcement of laws. |
| 6 | | (B)(i) 12.5% shall be distributed to the Office of |
| 7 | | the State's Attorney of the county in which the |
| 8 | | prosecution resulting in the forfeiture was |
| 9 | | instituted, deposited in a special fund in the county |
| 10 | | treasury and appropriated to the State's Attorney for |
| 11 | | use in the enforcement of laws. In counties over |
| 12 | | 3,000,000 population, 25% shall be distributed to the |
| 13 | | Office of the State's Attorney for use in the |
| 14 | | enforcement of laws. If the prosecution is undertaken |
| 15 | | solely by the Attorney General, the portion provided |
| 16 | | hereunder shall be distributed to the Attorney General |
| 17 | | for use in the enforcement of laws. |
| 18 | | (ii) 12.5% shall be distributed to the Office |
| 19 | | of the State's Attorneys Appellate Prosecutor and |
| 20 | | deposited in the Narcotics Profit Forfeiture Fund |
| 21 | | of that office to be used for additional expenses |
| 22 | | incurred in the investigation, prosecution and |
| 23 | | appeal of cases arising under laws. The Office of |
| 24 | | the State's Attorneys Appellate Prosecutor shall |
| 25 | | not receive distribution from cases brought in |
| 26 | | counties with over 3,000,000 population. |
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| 1 | | (C) 10% shall be retained by the Department of |
| 2 | | State Police for expenses related to the |
| 3 | | administration and sale of seized and forfeited |
| 4 | | property. |
| 5 | | Moneys and the sale proceeds distributed to the |
| 6 | | Department of State Police under this Article shall be |
| 7 | | deposited in the Money Laundering Asset Recovery Fund |
| 8 | | created in the State treasury and shall be used by the |
| 9 | | Department of State Police for State law enforcement |
| 10 | | purposes. |
| 11 | | (i) Notice to owner or interest holder. |
| 12 | | (1) Whenever notice of pending forfeiture or service of |
| 13 | | an in rem complaint is required under the provisions of |
| 14 | | this Article, such notice or service shall be given as |
| 15 | | follows: |
| 16 | | (A) If the owner's or interest holder's name and |
| 17 | | current address are known, then by either personal |
| 18 | | service or mailing a copy of the notice by certified |
| 19 | | mail, return receipt requested, to that address. For |
| 20 | | purposes of notice under this Section, if a person has |
| 21 | | been arrested for the conduct giving rise to the |
| 22 | | forfeiture, then the address provided to the arresting |
| 23 | | agency at the time of arrest shall be deemed to be that |
| 24 | | person's known address. Provided, however, if an owner |
| 25 | | or interest holder's address changes prior to the |
| 26 | | effective date of the notice of pending forfeiture, the |
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| 1 | | owner or interest holder shall promptly notify the |
| 2 | | seizing agency of the change in address or, if the |
| 3 | | owner or interest holder's address changes subsequent |
| 4 | | to the effective date of the notice of pending |
| 5 | | forfeiture, the owner or interest holder shall |
| 6 | | promptly notify the State's Attorney of the change in |
| 7 | | address; or |
| 8 | | (B) If the property seized is a conveyance, to the |
| 9 | | address reflected in the office of the agency or |
| 10 | | official in which title or interest to the conveyance |
| 11 | | is required by law to be recorded, then by mailing a |
| 12 | | copy of the notice by certified mail, return receipt |
| 13 | | requested, to that address; or |
| 14 | | (C) If the owner's or interest holder's address is |
| 15 | | not known, and is not on record as provided in |
| 16 | | paragraph (B), then by publication for 3 successive |
| 17 | | weeks in a newspaper of general circulation in the |
| 18 | | county in which the seizure occurred. |
| 19 | | (2) Notice served under this Article is effective upon |
| 20 | | personal service, the last date of publication, or the |
| 21 | | mailing of written notice, whichever is earlier. |
| 22 | | (j) Notice to State's Attorney. The law enforcement agency |
| 23 | | seizing property for forfeiture under this Article shall, |
| 24 | | within 90 days after seizure, notify the State's Attorney for |
| 25 | | the county, either where an act or omission giving rise to the |
| 26 | | forfeiture occurred or where the property was seized, of the |
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| 1 | | seizure of the property and the facts and circumstances giving |
| 2 | | rise to the seizure and shall provide the State's Attorney with |
| 3 | | the inventory of the property and its estimated value. When the |
| 4 | | property seized for forfeiture is a vehicle, the law |
| 5 | | enforcement agency seizing the property shall immediately |
| 6 | | notify the Secretary of State that forfeiture proceedings are |
| 7 | | pending regarding such vehicle. |
| 8 | | (k) Non-judicial forfeiture. If non-real property that |
| 9 | | exceeds $20,000 in value excluding the value of any conveyance, |
| 10 | | or if real property is seized under the provisions of this |
| 11 | | Article, the State's Attorney shall institute judicial in rem |
| 12 | | forfeiture proceedings as described in subsection (l) of this |
| 13 | | Section within 45 days from receipt of notice of seizure from |
| 14 | | the seizing agency under subsection (j) of this Section. |
| 15 | | However, if non-real property that does not exceed $20,000 in |
| 16 | | value excluding the value of any conveyance is seized, the |
| 17 | | following procedure shall be used: |
| 18 | | (1) If, after review of the facts surrounding the |
| 19 | | seizure, the State's Attorney is of the opinion that the |
| 20 | | seized property is subject to forfeiture, then within 45 |
| 21 | | days after the receipt of notice of seizure from the |
| 22 | | seizing agency, the State's Attorney shall cause notice of |
| 23 | | pending forfeiture to be given to the owner of the property |
| 24 | | and all known interest holders of the property in |
| 25 | | accordance with subsection (i) of this Section. |
| 26 | | (2) The notice of pending forfeiture must include a |
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| 1 | | description of the property, the estimated value of the |
| 2 | | property, the date and place of seizure, the conduct giving |
| 3 | | rise to forfeiture or the violation of law alleged, and a |
| 4 | | summary of procedures and procedural rights applicable to |
| 5 | | the forfeiture action. |
| 6 | | (3)(A) Any person claiming an interest in property |
| 7 | | which is the subject of notice under paragraph (1) of this |
| 8 | | subsection (k), must, in order to preserve any rights or |
| 9 | | claims to the property, within 45 days after the effective |
| 10 | | date of notice as described in subsection (i) of this |
| 11 | | Section, file a verified claim with the State's Attorney |
| 12 | | expressing his or her interest in the property. The claim |
| 13 | | must set forth: |
| 14 | | (i) the caption of the proceedings as set forth on |
| 15 | | the notice of pending forfeiture and the name of the |
| 16 | | claimant; |
| 17 | | (ii) the address at which the claimant will accept |
| 18 | | mail; |
| 19 | | (iii) the nature and extent of the claimant's |
| 20 | | interest in the property; |
| 21 | | (iv) the date, identity of the transferor, and |
| 22 | | circumstances of the claimant's acquisition of the |
| 23 | | interest in the property;
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| 24 | | (v) the name and address of all other persons known |
| 25 | | to have an interest in the property; |
| 26 | | (vi) the specific provision of law relied on in |
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| 1 | | asserting the property is not subject to forfeiture; |
| 2 | | (vii) all essential facts supporting each |
| 3 | | assertion; and |
| 4 | | (viii) the relief sought. |
| 5 | | (B) If a claimant files the claim and deposits with the |
| 6 | | State's Attorney a cost bond, in the form of a cashier's |
| 7 | | check payable to the clerk of the court, in the sum of 10% |
| 8 | | of the reasonable value of the property as alleged by the |
| 9 | | State's Attorney or the sum of $100, whichever is greater, |
| 10 | | upon condition that, in the case of forfeiture, the |
| 11 | | claimant must pay all costs and expenses of forfeiture |
| 12 | | proceedings, then the State's Attorney shall institute |
| 13 | | judicial in rem forfeiture proceedings and deposit the cost |
| 14 | | bond with the clerk of the court as described in subsection |
| 15 | | (l) of this Section within 45 days after receipt of the |
| 16 | | claim and cost bond. In lieu of a cost bond, a person |
| 17 | | claiming interest in the seized property may file, under |
| 18 | | penalty of perjury, an indigency affidavit which has been |
| 19 | | approved by a circuit court judge. |
| 20 | | (C) If none of the seized property is forfeited in the |
| 21 | | judicial in rem proceeding, the clerk of the court shall |
| 22 | | return to the claimant, unless the court orders otherwise, |
| 23 | | 90% of the sum which has been deposited and shall retain as |
| 24 | | costs 10% of the money deposited. If any of the seized |
| 25 | | property is forfeited under the judicial forfeiture |
| 26 | | proceeding, the clerk of the court shall transfer 90% of |
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| 1 | | the sum which has been deposited to the State's Attorney |
| 2 | | prosecuting the civil forfeiture to be applied to the costs |
| 3 | | of prosecution and the clerk shall retain as costs 10% of |
| 4 | | the sum deposited. |
| 5 | | (4) If no claim is filed or bond given within the 45 |
| 6 | | day period as described in paragraph (3) of this subsection |
| 7 | | (k), the State's Attorney shall declare the property |
| 8 | | forfeited and shall promptly notify the owner and all known |
| 9 | | interest holders of the property and the Director of State |
| 10 | | Police of the declaration of forfeiture and the Director |
| 11 | | shall dispose of the property in accordance with law. |
| 12 | | (l) Judicial in rem procedures. If property seized under |
| 13 | | the provisions of this Article is non-real property that |
| 14 | | exceeds $20,000 in value excluding the value of any conveyance, |
| 15 | | or is real property, or a claimant has filed a claim and a cost |
| 16 | | bond under paragraph (3) of subsection (k) of this Section, the |
| 17 | | following judicial in rem procedures shall apply: |
| 18 | | (1) If, after a review of the facts surrounding the |
| 19 | | seizure, the State's Attorney is of the opinion that the |
| 20 | | seized property is subject to forfeiture, then within 45 |
| 21 | | days of the receipt of notice of seizure by the seizing |
| 22 | | agency or the filing of the claim and cost bond, whichever |
| 23 | | is later, the State's Attorney shall institute judicial |
| 24 | | forfeiture proceedings by filing a verified complaint for |
| 25 | | forfeiture and, if the claimant has filed a claim and cost |
| 26 | | bond, by depositing the cost bond with the clerk of the |
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| 1 | | court. When authorized by law, a forfeiture must be ordered |
| 2 | | by a court on an action in rem brought by a State's |
| 3 | | Attorney under a verified complaint for forfeiture. |
| 4 | | (2) During the probable cause portion of the judicial |
| 5 | | in rem proceeding wherein the State presents its |
| 6 | | case-in-chief, the court must receive and consider, among |
| 7 | | other things, all relevant hearsay evidence and |
| 8 | | information. The laws of evidence relating to civil actions |
| 9 | | apply to all other portions of the judicial in rem |
| 10 | | proceeding. |
| 11 | | (3) Only an owner of or interest holder in the property |
| 12 | | may file an answer asserting a claim against the property |
| 13 | | in the action in rem. For purposes of this Section, the |
| 14 | | owner or interest holder shall be referred to as claimant. |
| 15 | | Upon motion of the State, the court shall first hold a |
| 16 | | hearing, wherein any claimant must establish by a |
| 17 | | preponderance of the evidence, that he or she has a lawful, |
| 18 | | legitimate ownership interest in the property and that it |
| 19 | | was obtained through a lawful source. |
| 20 | | (4) The answer must be signed by the owner or interest |
| 21 | | holder under penalty of perjury and must set forth: |
| 22 | | (A) the caption of the proceedings as set forth on |
| 23 | | the notice of pending forfeiture and the name of the |
| 24 | | claimant; |
| 25 | | (B) the address at which the claimant will accept |
| 26 | | mail; |
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| 1 | | (C) the nature and extent of the claimant's |
| 2 | | interest in the property; |
| 3 | | (D) the date, identity of transferor, and |
| 4 | | circumstances of the claimant's acquisition of the |
| 5 | | interest in the property; |
| 6 | | (E) the name and address of all other persons known |
| 7 | | to have an interest in the property; |
| 8 | | (F) all essential facts supporting each assertion; |
| 9 | | and |
| 10 | | (G) the precise relief sought.
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| 11 | | (5) The answer must be filed with the court within 45 |
| 12 | | days after service of the civil in rem complaint. |
| 13 | | (6) The hearing must be held within 60 days after |
| 14 | | filing of the answer unless continued for good cause.
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| 15 | | (7) The State shall show the existence of probable |
| 16 | | cause for forfeiture of the property. If the State shows |
| 17 | | probable cause, the claimant has the burden of showing by a |
| 18 | | preponderance of the evidence that the claimant's interest |
| 19 | | in the property is not subject to forfeiture.
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| 20 | | (8) If the State does not show existence of probable |
| 21 | | cause, the court shall order the interest in the property |
| 22 | | returned or conveyed to the claimant and shall order all |
| 23 | | other property forfeited to the State. If the State does |
| 24 | | show existence of probable cause, the court shall order all |
| 25 | | property forfeited to the State. |
| 26 | | (9) A defendant convicted in any criminal proceeding is |
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| 1 | | precluded from later denying the essential allegations of |
| 2 | | the criminal offense of which the defendant was convicted |
| 3 | | in any proceeding under this Article regardless of the |
| 4 | | pendency of an appeal from that conviction. However, |
| 5 | | evidence of the pendency of an appeal is admissible. |
| 6 | | (10) An acquittal or dismissal in a criminal proceeding |
| 7 | | does not preclude civil proceedings under this Article; |
| 8 | | however, for good cause shown, on a motion by the State's |
| 9 | | Attorney, the court may stay civil forfeiture proceedings |
| 10 | | during the criminal trial for a related criminal indictment |
| 11 | | or information alleging a money laundering violation. Such |
| 12 | | a stay shall not be available pending an appeal. Property |
| 13 | | subject to forfeiture under this Article shall not be |
| 14 | | subject to return or release by a court exercising |
| 15 | | jurisdiction over a criminal case involving the seizure of |
| 16 | | such property unless such return or release is consented to |
| 17 | | by the State's Attorney. |
| 18 | | (11) All property declared forfeited under this |
| 19 | | Article vests in this State on the commission of the |
| 20 | | conduct giving rise to forfeiture together with the |
| 21 | | proceeds of the property after that time. Any such property |
| 22 | | or proceeds subsequently transferred to any person remain |
| 23 | | subject to forfeiture and thereafter shall be ordered |
| 24 | | forfeited. |
| 25 | | (12) A civil action under this Article must be |
| 26 | | commenced within 5 years after the last conduct giving rise |
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| 1 | | to forfeiture became known or should have become known or 5 |
| 2 | | years after the forfeitable property is discovered, |
| 3 | | whichever is later, excluding any time during which either |
| 4 | | the property or claimant is out of the State or in |
| 5 | | confinement or during which criminal proceedings relating |
| 6 | | to the same conduct are in progress. |
| 7 | | (m) Stay of time periods. If property is seized for |
| 8 | | evidence and for forfeiture, the time periods for instituting |
| 9 | | judicial and non-judicial forfeiture proceedings shall not |
| 10 | | begin until the property is no longer necessary for evidence. |
| 11 | | (n) Settlement of claims. Notwithstanding other provisions |
| 12 | | of this Article, the State's Attorney and a claimant of seized |
| 13 | | property may enter into an agreed-upon settlement concerning |
| 14 | | the seized property in such an amount and upon such terms as |
| 15 | | are set out in writing in a settlement agreement. |
| 16 | | (o) Property constituting attorney fees. Nothing in this |
| 17 | | Article applies to property which constitutes reasonable bona |
| 18 | | fide attorney's fees paid to an attorney for services rendered |
| 19 | | or to be rendered in the forfeiture proceeding or criminal |
| 20 | | proceeding relating directly thereto where such property was |
| 21 | | paid before its seizure, before the issuance of any seizure |
| 22 | | warrant or court order prohibiting transfer of the property and |
| 23 | | where the attorney, at the time he or she received the property |
| 24 | | did not know that it was property subject to forfeiture under |
| 25 | | this Article. |
| 26 | | (p) Construction. It is the intent of the General Assembly |
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| 1 | | that the forfeiture provisions of this Article be liberally |
| 2 | | construed so as to effect their remedial purpose. The |
| 3 | | forfeiture of property and other remedies hereunder shall be |
| 4 | | considered to be in addition to, and not exclusive of, any |
| 5 | | sentence or other remedy provided by law. |
| 6 | | (q) Judicial review. If property has been declared |
| 7 | | forfeited under subsection (k) of this Section, any person who |
| 8 | | has an interest in the property declared forfeited may, within |
| 9 | | 30 days after the effective date of the notice of the |
| 10 | | declaration of forfeiture, file a claim and cost bond as |
| 11 | | described in paragraph (3) of subsection (k) of this Section. |
| 12 | | If a claim and cost bond is filed under this Section, then the |
| 13 | | procedures described in subsection (l) of this Section apply. |
| 14 | | (r) Burden of proof of exemption or exception. It is not |
| 15 | | necessary for the State to negate any exemption or exception in |
| 16 | | this Article in any complaint, information, indictment or other |
| 17 | | pleading or in any trial, hearing, or other proceeding under |
| 18 | | this Article. The burden of proof of any exemption or exception |
| 19 | | is upon the person claiming it. |
| 20 | | (s) Review of administrative decisions.
All administrative |
| 21 | | findings, rulings, final determinations, findings, and |
| 22 | | conclusions of the State's Attorney's Office under this Article |
| 23 | | are final and conclusive decisions of the matters involved. Any |
| 24 | | person aggrieved by the decision may obtain review of the |
| 25 | | decision pursuant to the provisions of the Administrative |
| 26 | | Review Law and the rules adopted pursuant to that Law. Pending |
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| 1 | | final decision on such review, the administrative acts, orders, |
| 2 | | and rulings of the State's Attorney's Office remain in full |
| 3 | | force and effect unless modified or suspended by order of court |
| 4 | | pending final judicial decision. Pending final decision on such |
| 5 | | review, the acts, orders, and rulings of the State's Attorney's |
| 6 | | Office remain in full force and effect, unless stayed by order |
| 7 | | of court. However, no stay of any decision of the |
| 8 | | administrative agency shall issue unless the person aggrieved |
| 9 | | by the decision establishes by a preponderance of the evidence |
| 10 | | that good cause exists for the stay. In determining good cause, |
| 11 | | the court shall find that the aggrieved party has established a |
| 12 | | substantial likelihood of prevailing on the merits and that |
| 13 | | granting the stay will not have an injurious effect on the |
| 14 | | general public.
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| 15 | | (Source: P.A. 96-275, eff. 8-11-09; 96-710, eff. 1-1-10; |
| 16 | | 96-1000, eff. 7-2-10; 96-1234, eff. 7-23-10.)
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| 17 | | (720 ILCS 5/29B-2 new) |
| 18 | | Sec. 29B-2. Engaging in monetary transactions in |
| 19 | | criminally derived property. |
| 20 | | (a) A person commits engaging in monetary transactions in |
| 21 | | criminally derived property when he or she knowingly engages or |
| 22 | | attempts to engage in a monetary transaction in criminally |
| 23 | | derived property of a value greater than $10,000. |
| 24 | | (b) In a prosecution for an offense under this Section, the |
| 25 | | State is not required to prove the defendant knew that the |
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| 1 | | offense from which the criminally derived property was derived |
| 2 | | constituted a felony under State, federal, or foreign law. |
| 3 | | (c) Engaging in monetary transactions in property derived |
| 4 | | from specified unlawful activity occurs in the county from |
| 5 | | which the monetary transaction is sent, if the monetary |
| 6 | | transaction is sent from within this State, and the county |
| 7 | | within this State in which a monetary transaction is received. |
| 8 | | (d) As used in this Section: |
| 9 | | (1) "Monetary transaction" means the deposit, |
| 10 | | withdrawal, transfer, or exchange of funds or a monetary |
| 11 | | instrument (as defined in paragraph (3) of subsection (b) |
| 12 | | of Section 29B-1 of this Code) by, through, or to a |
| 13 | | financial institution (as defined in paragraph (2) of |
| 14 | | subsection (b) of Section 29B-1 of this Code), including |
| 15 | | any transaction that would be a financial transaction under |
| 16 | | paragraph (1) of subsection (b) of Section 29B-1 of this |
| 17 | | Code, but that term does not include any transaction |
| 18 | | necessary to preserve a person's right to representation as |
| 19 | | guaranteed by the Sixth Amendment to the United States |
| 20 | | Constitution. |
| 21 | | (2) "Criminally derived property" has the meaning |
| 22 | | given that term in paragraph (4) of subsection (b) of |
| 23 | | Section 29B-1 of this Code. |
| 24 | | (e) Duty to enforce; protective orders; seizure warrants; |
| 25 | | and forfeiture. All provisions of subsections (e) through (s) |
| 26 | | of Section 29B-1 of this Code are incorporated by reference |
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| 1 | | into this Section. |
| 2 | | (f) Sentence. |
| 3 | | (1) Engaging in monetary transactions in criminally |
| 4 | | derived property exceeding $10,000 but not exceeding |
| 5 | | $100,000 is a Class 2 felony. |
| 6 | | (2) Engaging in monetary transactions in criminally |
| 7 | | derived property exceeding $100,000 but not exceeding |
| 8 | | $500,000 is a Class 1 felony. |
| 9 | | (3) Engaging in monetary transactions in criminally |
| 10 | | derived property exceeding $500,000 but not exceeding |
| 11 | | $1,000,000 is a Class 1 non-probationable felony. |
| 12 | | (4) Engaging in monetary transactions in criminally |
| 13 | | derived property exceeding $1,000,000 is a Class X felony. |
| 14 | | (g) Fines.
The court may impose an alternate fine to that |
| 15 | | imposable under paragraph (f) of not more than twice the amount |
| 16 | | of the criminally derived property involved in the transaction.
|
| 17 | | (720 ILCS 5/29B-3 new) |
| 18 | | Sec. 29B-3. Unlawful money transmitting business. |
| 19 | | (a) A person commits unlawful money transmitting business |
| 20 | | when he or she knowingly conducts, controls, manages, |
| 21 | | supervises, directs, or owns all or part of an unlawful money |
| 22 | | transmitting business. |
| 23 | | (b) As used in this Section: |
| 24 | | "Money transmitting" means the transmission of money |
| 25 | | by any means, including transporting, transferring, |
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| 1 | | exchanging, or transmitting to or from locations within the |
| 2 | | United States or to and from locations outside of the |
| 3 | | United States by payment instrument, facsimile or |
| 4 | | electronic transfer, or otherwise, and includes bill |
| 5 | | payment services. |
| 6 | | "Money transmitting business" means any business other |
| 7 | | than the exemptions under Section 15 of the Transmitters of |
| 8 | | Money Act, which provides check cashing, currency |
| 9 | | exchange, money transmitting or remittance services, or |
| 10 | | issues, sells, or redeems money orders, travelers' checks, |
| 11 | | prepaid access devices, digital currencies, or other |
| 12 | | similar instruments, or any other person or association of |
| 13 | | persons, formal or informal, engaging as a business in |
| 14 | | transporting, transferring, exchanging, or transmitting |
| 15 | | currency or funds in any form, including any person or |
| 16 | | association of persons, formal or informal, engaging as a |
| 17 | | business in any informal money transfer system, monetary |
| 18 | | value represented in digital electronic format, or any |
| 19 | | network of persons who engage as a business in facilitating |
| 20 | | the transfer of money domestically or internationally |
| 21 | | outside of the conventional financial institutions system. |
| 22 | | "Payment instrument" means a check, draft, money |
| 23 | | order, traveler's check, stored value card, digital |
| 24 | | currencies, or other similar instrument, or other |
| 25 | | instrument or memorandum, written order or written receipt |
| 26 | | for the transmission or payment of money sold or issued to |
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| 1 | | one or more persons whether or not that instrument or order |
| 2 | | is negotiable. Payment instrument does not include an |
| 3 | | instrument that is redeemable by the issuer in merchandise |
| 4 | | or service, a credit card voucher, or a letter of credit. A |
| 5 | | written order for the transmission or payment of money that |
| 6 | | results in the issuance of a check, draft, money order, |
| 7 | | traveler's check, or other instrument or memorandum is not |
| 8 | | a payment instrument. |
| 9 | | "Unlawful money transmitting business" means a money |
| 10 | | transmitting business which: |
| 11 | | (1) is operated without an appropriate money |
| 12 | | transmitting license as required under Section 10 of |
| 13 | | the Transmitters of Money Act, whether or not the |
| 14 | | defendant knew that the operation was required to be |
| 15 | | licensed or that the operation was so punishable; or |
| 16 | | (2) otherwise involves the transportation, |
| 17 | | transfer, exchange, or transmission of funds that are |
| 18 | | known to the defendant to have been derived from a |
| 19 | | criminal offense or are intended to be used to promote |
| 20 | | or support unlawful activity. |
| 21 | | (c) Duty to enforce; protective orders; seizure warrants; |
| 22 | | and forfeiture. All provisions of subsections (e) through (s) |
| 23 | | of Section 29B-1 of this Code are incorporated by reference |
| 24 | | into this Section. |
| 25 | | (d) Sentence. |
| 26 | | (1) Unlawful money transmitting business where the |
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| 1 | | value of the funds does not exceed $10,000 is a Class 3 |
| 2 | | felony. |
| 3 | | (2) Unlawful money transmitting business where the |
| 4 | | value of the funds exceeds $10,000 but does not exceed |
| 5 | | $100,000 is a Class 2 felony. |
| 6 | | (3) Unlawful money transmitting business where the |
| 7 | | value of the funds exceeds $100,000 but does not exceed |
| 8 | | $500,000 is a Class 1 felony. |
| 9 | | (4) Unlawful money transmitting business where the |
| 10 | | value of the funds exceeds $500,000 but does not exceed |
| 11 | | $1,000,000 is a Class 1 non-probationable felony. |
| 12 | | (5) Unlawful money transmitting business where the |
| 13 | | value of the funds exceeds $1,000,000 is a Class X felony.
|
| 14 | | Section 15. The Code of Criminal Procedure of 1963 is |
| 15 | | amended by changing Section 111-4 as follows:
|
| 16 | | (725 ILCS 5/111-4)
|
| 17 | | Sec. 111-4. Joinder of offenses and defendants.
|
| 18 | | (a) Two or more offenses may be charged in the same |
| 19 | | indictment,
information or complaint in a separate count for |
| 20 | | each offense if the
offenses charged, whether felonies or |
| 21 | | misdemeanors or both, are based on
the same act or on 2 or more |
| 22 | | acts which are part of the same comprehensive
transaction.
|
| 23 | | (b) Two or more defendants may be charged in the same |
| 24 | | indictment,
information or complaint if they are alleged to |
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| 1 | | have participated in the
same act or in the same comprehensive |
| 2 | | transaction out of which the offense
or offenses arose. Such |
| 3 | | defendants may be charged in one or more counts
together or |
| 4 | | separately and all of the defendants need not be charged in
|
| 5 | | each count.
|
| 6 | | (c) Two or more acts or transactions in violation of any |
| 7 | | provision or
provisions of Sections 8A-2, 8A-3, 8A-4, 8A-4A and |
| 8 | | 8A-5 of the Illinois
Public Aid Code, Section 14 of the |
| 9 | | Illinois Wage Payment and Collection Act, Section 25.5 of the |
| 10 | | Workers' Compensation Act, Sections 16-1, 16-1.3, 16-2, 16-3, |
| 11 | | 16-5, 16-7, 16-8, 16-10, 16-25, 16-30, 16-40, 16A-3,
16B-2, |
| 12 | | 16G-15, 16G-20, 16H-15, 16H-20, 16H-25, 16H-30, 16H-45, |
| 13 | | 16H-50, 16H-55, 17-1, 17-3, 17-6, 17-6.3, 17-10.6, 17-30, |
| 14 | | 17-56, or 17-60, 29B-1, 29B-2, or 29B-3, or item (ii) of |
| 15 | | subsection (a) or (b) of Section 17-9, or subdivision (a)(1) |
| 16 | | (a)(2) of Section 17-10.5, or subsection (a), (b), (c), (d), |
| 17 | | (g), (h), or (i) of Section 17-10.6, or subsection (a) of |
| 18 | | Section 17-32 of the Criminal Code of
1961 or the Criminal Code |
| 19 | | of 2012 and Section 118 of Division I of the Criminal |
| 20 | | Jurisprudence Act, may
be charged as a single offense in a |
| 21 | | single count of the same indictment,
information or complaint, |
| 22 | | if such acts or transactions by one or more
defendants are in |
| 23 | | furtherance of a single intention and design or if the
|
| 24 | | property, labor or services obtained are of the same person or |
| 25 | | are of
several persons having a common interest in such |
| 26 | | property, labor or
services. In such a charge, the period |
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| 1 | | between the dates of the first and
the final such acts or |
| 2 | | transactions may be alleged as the date of the
offense and, if |
| 3 | | any such act or transaction by any defendant was committed
in |
| 4 | | the county where the prosecution was commenced, such county may |
| 5 | | be
alleged as the county of the offense.
|
| 6 | | (Source: P.A. 96-354, eff. 8-13-09; 96-1207, eff. 7-22-10; |
| 7 | | 96-1407, eff. 1-1-11; 96-1551, eff. 7-1-11; 97-333, eff. |
| 8 | | 8-12-11; 97-597, eff. 1-1-12; 97-1150, eff. 1-25-13.)
|
| 9 | | Section 20. The Unified Code of Corrections is amended by |
| 10 | | changing Section 5-5-3 as follows:
|
| 11 | | (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
|
| 12 | | Sec. 5-5-3. Disposition.
|
| 13 | | (a) (Blank).
|
| 14 | | (b) (Blank).
|
| 15 | | (c) (1) (Blank).
|
| 16 | | (2) A period of probation, a term of periodic |
| 17 | | imprisonment or
conditional discharge shall not be imposed |
| 18 | | for the following offenses.
The court shall sentence the |
| 19 | | offender to not less than the minimum term
of imprisonment |
| 20 | | set forth in this Code for the following offenses, and
may |
| 21 | | order a fine or restitution or both in conjunction with |
| 22 | | such term of
imprisonment:
|
| 23 | | (A) First degree murder where the death penalty is |
| 24 | | not imposed.
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| 1 | | (B) Attempted first degree murder.
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| 2 | | (C) A Class X felony.
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| 3 | | (D) A violation of Section 401.1 or 407 of the
|
| 4 | | Illinois Controlled Substances Act, or a violation of |
| 5 | | subdivision (c)(1.5) or
(c)(2) of
Section 401 of that |
| 6 | | Act which relates to more than 5 grams of a substance
|
| 7 | | containing cocaine, fentanyl, or an analog thereof.
|
| 8 | | (D-5) A violation of subdivision (c)(1) of
Section |
| 9 | | 401 of the Illinois Controlled Substances Act which |
| 10 | | relates to 3 or more grams of a substance
containing |
| 11 | | heroin or an analog thereof.
|
| 12 | | (E) A violation of Section 5.1 or 9 of the Cannabis |
| 13 | | Control
Act.
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| 14 | | (F) A Class 2 or greater felony if the offender had |
| 15 | | been convicted
of a Class 2 or greater felony, |
| 16 | | including any state or federal conviction for an |
| 17 | | offense that contained, at the time it was committed, |
| 18 | | the same elements as an offense now (the date of the |
| 19 | | offense committed after the prior Class 2 or greater |
| 20 | | felony) classified as a Class 2 or greater felony, |
| 21 | | within 10 years of the date on which the
offender
|
| 22 | | committed the offense for which he or she is being |
| 23 | | sentenced, except as
otherwise provided in Section |
| 24 | | 40-10 of the Alcoholism and Other Drug Abuse and
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| 25 | | Dependency Act.
|
| 26 | | (F-5) A violation of Section 24-1, 24-1.1, or |
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| 1 | | 24-1.6 of the Criminal Code of 1961 or the Criminal |
| 2 | | Code of 2012 for which imprisonment is prescribed in |
| 3 | | those Sections.
|
| 4 | | (G) Residential burglary, except as otherwise |
| 5 | | provided in Section 40-10
of the Alcoholism and Other |
| 6 | | Drug Abuse and Dependency Act.
|
| 7 | | (H) Criminal sexual assault.
|
| 8 | | (I) Aggravated battery of a senior citizen as |
| 9 | | described in Section 12-4.6 or subdivision (a)(4) of |
| 10 | | Section 12-3.05 of the Criminal Code of 1961 or the |
| 11 | | Criminal Code of 2012.
|
| 12 | | (J) A forcible felony if the offense was related to |
| 13 | | the activities of an
organized gang.
|
| 14 | | Before July 1, 1994, for the purposes of this |
| 15 | | paragraph, "organized
gang" means an association of 5 |
| 16 | | or more persons, with an established hierarchy,
that |
| 17 | | encourages members of the association to perpetrate |
| 18 | | crimes or provides
support to the members of the |
| 19 | | association who do commit crimes.
|
| 20 | | Beginning July 1, 1994, for the purposes of this |
| 21 | | paragraph,
"organized gang" has the meaning ascribed |
| 22 | | to it in Section 10 of the Illinois
Streetgang |
| 23 | | Terrorism Omnibus Prevention Act.
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| 24 | | (K) Vehicular hijacking.
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| 25 | | (L) A second or subsequent conviction for the |
| 26 | | offense of hate crime
when the underlying offense upon |
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| 1 | | which the hate crime is based is felony
aggravated
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| 2 | | assault or felony mob action.
|
| 3 | | (M) A second or subsequent conviction for the |
| 4 | | offense of institutional
vandalism if the damage to the |
| 5 | | property exceeds $300.
|
| 6 | | (N) A Class 3 felony violation of paragraph (1) of |
| 7 | | subsection (a) of
Section 2 of the Firearm Owners |
| 8 | | Identification Card Act.
|
| 9 | | (O) A violation of Section 12-6.1 or 12-6.5 of the |
| 10 | | Criminal Code of 1961 or the Criminal Code of 2012.
|
| 11 | | (P) A violation of paragraph (1), (2), (3), (4), |
| 12 | | (5), or (7) of
subsection (a)
of Section 11-20.1 of the |
| 13 | | Criminal Code of 1961 or the Criminal Code of 2012.
|
| 14 | | (Q) A violation of subsection (b) or (b-5) of |
| 15 | | Section 20-1, Section 20-1.2, or Section 20-1.3 of the |
| 16 | | Criminal Code of
1961 or the Criminal Code of 2012.
|
| 17 | | (R) A violation of Section 24-3A of the Criminal |
| 18 | | Code of
1961 or the Criminal Code of 2012.
|
| 19 | | (S) (Blank).
|
| 20 | | (T) A second or subsequent violation of the |
| 21 | | Methamphetamine Control and Community Protection Act.
|
| 22 | | (U) A second or subsequent violation of Section |
| 23 | | 6-303 of the Illinois Vehicle Code committed while his |
| 24 | | or her driver's license, permit, or privilege was |
| 25 | | revoked because of a violation of Section 9-3 of the |
| 26 | | Criminal Code of 1961 or the Criminal Code of 2012, |
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| 1 | | relating to the offense of reckless homicide, or a |
| 2 | | similar provision of a law of another state.
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| 3 | | (V)
A violation of paragraph (4) of subsection (c) |
| 4 | | of Section 11-20.1B or paragraph (4) of subsection (c) |
| 5 | | of Section 11-20.3 of the Criminal Code of 1961, or |
| 6 | | paragraph (6) of subsection (a) of Section 11-20.1 of |
| 7 | | the Criminal Code of 2012 when the victim is under 13 |
| 8 | | years of age and the defendant has previously been |
| 9 | | convicted under the laws of this State or any other |
| 10 | | state of the offense of child pornography, aggravated |
| 11 | | child pornography, aggravated criminal sexual abuse, |
| 12 | | aggravated criminal sexual assault, predatory criminal |
| 13 | | sexual assault of a child, or any of the offenses |
| 14 | | formerly known as rape, deviate sexual assault, |
| 15 | | indecent liberties with a child, or aggravated |
| 16 | | indecent liberties with a child where the victim was |
| 17 | | under the age of 18 years or an offense that is |
| 18 | | substantially equivalent to those offenses. |
| 19 | | (W) A violation of Section 24-3.5 of the Criminal |
| 20 | | Code of 1961 or the Criminal Code of 2012.
|
| 21 | | (X) A violation of subsection (a) of Section 31-1a |
| 22 | | of the Criminal Code of 1961 or the Criminal Code of |
| 23 | | 2012. |
| 24 | | (Y) A conviction for unlawful possession of a |
| 25 | | firearm by a street gang member when the firearm was |
| 26 | | loaded or contained firearm ammunition. |
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| 1 | | (Z) A Class 1 felony committed while he or she was |
| 2 | | serving a term of probation or conditional discharge |
| 3 | | for a felony. |
| 4 | | (AA) Theft of property exceeding $500,000 and not |
| 5 | | exceeding $1,000,000 in value. |
| 6 | | (BB) Laundering of criminally derived property of |
| 7 | | a value exceeding
$500,000. |
| 8 | | (CC) Knowingly selling, offering for sale, holding |
| 9 | | for sale, or using 2,000 or more counterfeit items or |
| 10 | | counterfeit items having a retail value in the |
| 11 | | aggregate of $500,000 or more. |
| 12 | | (DD) A conviction for aggravated assault under |
| 13 | | paragraph (6) of subsection (c) of Section 12-2 of the |
| 14 | | Criminal Code of 1961 or the Criminal Code of 2012 if |
| 15 | | the firearm is aimed toward the person against whom the |
| 16 | | firearm is being used. |
| 17 | | (EE) Engaging in monetary transactions in |
| 18 | | criminally derived property exceeding $500,000. |
| 19 | | (FF) Unlawful money transmitting business where |
| 20 | | the value of the funds exceeds $500,000.
|
| 21 | | (3) (Blank).
|
| 22 | | (4) A minimum term of imprisonment of not less than 10
|
| 23 | | consecutive days or 30 days of community service shall be |
| 24 | | imposed for a
violation of paragraph (c) of Section 6-303 |
| 25 | | of the Illinois Vehicle Code.
|
| 26 | | (4.1) (Blank).
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| 1 | | (4.2) Except as provided in paragraphs (4.3) and (4.8) |
| 2 | | of this subsection (c), a
minimum of
100 hours of community |
| 3 | | service shall be imposed for a second violation of
Section |
| 4 | | 6-303
of the Illinois Vehicle Code.
|
| 5 | | (4.3) A minimum term of imprisonment of 30 days or 300 |
| 6 | | hours of community
service, as determined by the court, |
| 7 | | shall
be imposed for a second violation of subsection (c) |
| 8 | | of Section 6-303 of the
Illinois Vehicle Code.
|
| 9 | | (4.4) Except as provided in paragraphs
(4.5), (4.6), |
| 10 | | and (4.9) of this
subsection (c), a
minimum term of |
| 11 | | imprisonment of 30 days or 300 hours of community service, |
| 12 | | as
determined by the court, shall
be imposed
for a third or |
| 13 | | subsequent violation of Section 6-303 of the Illinois |
| 14 | | Vehicle
Code.
|
| 15 | | (4.5) A minimum term of imprisonment of 30 days
shall |
| 16 | | be imposed for a third violation of subsection (c) of
|
| 17 | | Section 6-303 of the Illinois Vehicle Code.
|
| 18 | | (4.6) Except as provided in paragraph (4.10) of this |
| 19 | | subsection (c), a minimum term of imprisonment of 180 days |
| 20 | | shall be imposed for a
fourth or subsequent violation of |
| 21 | | subsection (c) of Section 6-303 of the
Illinois Vehicle |
| 22 | | Code.
|
| 23 | | (4.7) A minimum term of imprisonment of not less than |
| 24 | | 30 consecutive days, or 300 hours of community service, |
| 25 | | shall be imposed for a violation of subsection (a-5) of |
| 26 | | Section 6-303 of the Illinois Vehicle Code, as provided in |
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| 1 | | subsection (b-5) of that Section.
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| 2 | | (4.8) A mandatory prison sentence shall be imposed for |
| 3 | | a second violation of subsection (a-5) of Section 6-303 of |
| 4 | | the Illinois Vehicle Code, as provided in subsection (c-5) |
| 5 | | of that Section. The person's driving privileges shall be |
| 6 | | revoked for a period of not less than 5 years from the date |
| 7 | | of his or her release from prison.
|
| 8 | | (4.9) A mandatory prison sentence of not less than 4 |
| 9 | | and not more than 15 years shall be imposed for a third |
| 10 | | violation of subsection (a-5) of Section 6-303 of the |
| 11 | | Illinois Vehicle Code, as provided in subsection (d-2.5) of |
| 12 | | that Section. The person's driving privileges shall be |
| 13 | | revoked for the remainder of his or her life.
|
| 14 | | (4.10) A mandatory prison sentence for a Class 1 felony |
| 15 | | shall be imposed, and the person shall be eligible for an |
| 16 | | extended term sentence, for a fourth or subsequent |
| 17 | | violation of subsection (a-5) of Section 6-303 of the |
| 18 | | Illinois Vehicle Code, as provided in subsection (d-3.5) of |
| 19 | | that Section. The person's driving privileges shall be |
| 20 | | revoked for the remainder of his or her life.
|
| 21 | | (5) The court may sentence a corporation or |
| 22 | | unincorporated
association convicted of any offense to:
|
| 23 | | (A) a period of conditional discharge;
|
| 24 | | (B) a fine;
|
| 25 | | (C) make restitution to the victim under Section |
| 26 | | 5-5-6 of this Code.
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| 1 | | (5.1) In addition to any other penalties imposed, and |
| 2 | | except as provided in paragraph (5.2) or (5.3), a person
|
| 3 | | convicted of violating subsection (c) of Section 11-907 of |
| 4 | | the Illinois
Vehicle Code shall have his or her driver's |
| 5 | | license, permit, or privileges
suspended for at least 90 |
| 6 | | days but not more than one year, if the violation
resulted |
| 7 | | in damage to the property of another person.
|
| 8 | | (5.2) In addition to any other penalties imposed, and |
| 9 | | except as provided in paragraph (5.3), a person convicted
|
| 10 | | of violating subsection (c) of Section 11-907 of the |
| 11 | | Illinois Vehicle Code
shall have his or her driver's |
| 12 | | license, permit, or privileges suspended for at
least 180 |
| 13 | | days but not more than 2 years, if the violation resulted |
| 14 | | in injury
to
another person.
|
| 15 | | (5.3) In addition to any other penalties imposed, a |
| 16 | | person convicted of violating subsection (c) of Section
|
| 17 | | 11-907 of the Illinois Vehicle Code shall have his or her |
| 18 | | driver's license,
permit, or privileges suspended for 2 |
| 19 | | years, if the violation resulted in the
death of another |
| 20 | | person.
|
| 21 | | (5.4) In addition to any other penalties imposed, a |
| 22 | | person convicted of violating Section 3-707 of the Illinois |
| 23 | | Vehicle Code shall have his or her driver's license, |
| 24 | | permit, or privileges suspended for 3 months and until he |
| 25 | | or she has paid a reinstatement fee of $100. |
| 26 | | (5.5) In addition to any other penalties imposed, a |
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| 1 | | person convicted of violating Section 3-707 of the Illinois |
| 2 | | Vehicle Code during a period in which his or her driver's |
| 3 | | license, permit, or privileges were suspended for a |
| 4 | | previous violation of that Section shall have his or her |
| 5 | | driver's license, permit, or privileges suspended for an |
| 6 | | additional 6 months after the expiration of the original |
| 7 | | 3-month suspension and until he or she has paid a |
| 8 | | reinstatement fee of $100.
|
| 9 | | (6) (Blank).
|
| 10 | | (7) (Blank).
|
| 11 | | (8) (Blank).
|
| 12 | | (9) A defendant convicted of a second or subsequent |
| 13 | | offense of ritualized
abuse of a child may be sentenced to |
| 14 | | a term of natural life imprisonment.
|
| 15 | | (10) (Blank).
|
| 16 | | (11) The court shall impose a minimum fine of $1,000 |
| 17 | | for a first offense
and $2,000 for a second or subsequent |
| 18 | | offense upon a person convicted of or
placed on supervision |
| 19 | | for battery when the individual harmed was a sports
|
| 20 | | official or coach at any level of competition and the act |
| 21 | | causing harm to the
sports
official or coach occurred |
| 22 | | within an athletic facility or within the immediate |
| 23 | | vicinity
of the athletic facility at which the sports |
| 24 | | official or coach was an active
participant
of the athletic |
| 25 | | contest held at the athletic facility. For the purposes of
|
| 26 | | this paragraph (11), "sports official" means a person at an |
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| 1 | | athletic contest
who enforces the rules of the contest, |
| 2 | | such as an umpire or referee; "athletic facility" means an |
| 3 | | indoor or outdoor playing field or recreational area where |
| 4 | | sports activities are conducted;
and "coach" means a person |
| 5 | | recognized as a coach by the sanctioning
authority that |
| 6 | | conducted the sporting event. |
| 7 | | (12) A person may not receive a disposition of court |
| 8 | | supervision for a
violation of Section 5-16 of the Boat |
| 9 | | Registration and Safety Act if that
person has previously |
| 10 | | received a disposition of court supervision for a
violation |
| 11 | | of that Section.
|
| 12 | | (13) A person convicted of or placed on court |
| 13 | | supervision for an assault or aggravated assault when the |
| 14 | | victim and the offender are family or household members as |
| 15 | | defined in Section 103 of the Illinois Domestic Violence |
| 16 | | Act of 1986 or convicted of domestic battery or aggravated |
| 17 | | domestic battery may be required to attend a Partner Abuse |
| 18 | | Intervention Program under protocols set forth by the |
| 19 | | Illinois Department of Human Services under such terms and |
| 20 | | conditions imposed by the court. The costs of such classes |
| 21 | | shall be paid by the offender.
|
| 22 | | (d) In any case in which a sentence originally imposed is |
| 23 | | vacated,
the case shall be remanded to the trial court. The |
| 24 | | trial court shall
hold a hearing under Section 5-4-1 of the |
| 25 | | Unified Code of Corrections
which may include evidence of the |
| 26 | | defendant's life, moral character and
occupation during the |
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| 1 | | time since the original sentence was passed. The
trial court |
| 2 | | shall then impose sentence upon the defendant. The trial
court |
| 3 | | may impose any sentence which could have been imposed at the
|
| 4 | | original trial subject to Section 5-5-4 of the Unified Code of |
| 5 | | Corrections.
If a sentence is vacated on appeal or on |
| 6 | | collateral attack due to the
failure of the trier of fact at |
| 7 | | trial to determine beyond a reasonable doubt
the
existence of a |
| 8 | | fact (other than a prior conviction) necessary to increase the
|
| 9 | | punishment for the offense beyond the statutory maximum |
| 10 | | otherwise applicable,
either the defendant may be re-sentenced |
| 11 | | to a term within the range otherwise
provided or, if the State |
| 12 | | files notice of its intention to again seek the
extended |
| 13 | | sentence, the defendant shall be afforded a new trial.
|
| 14 | | (e) In cases where prosecution for
aggravated criminal |
| 15 | | sexual abuse under Section 11-1.60 or 12-16 of the
Criminal |
| 16 | | Code of 1961 or the Criminal Code of 2012 results in conviction |
| 17 | | of a defendant
who was a family member of the victim at the |
| 18 | | time of the commission of the
offense, the court shall consider |
| 19 | | the safety and welfare of the victim and
may impose a sentence |
| 20 | | of probation only where:
|
| 21 | | (1) the court finds (A) or (B) or both are appropriate:
|
| 22 | | (A) the defendant is willing to undergo a court |
| 23 | | approved counseling
program for a minimum duration of 2 |
| 24 | | years; or
|
| 25 | | (B) the defendant is willing to participate in a |
| 26 | | court approved plan
including but not limited to the |
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| 1 | | defendant's:
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| 2 | | (i) removal from the household;
|
| 3 | | (ii) restricted contact with the victim;
|
| 4 | | (iii) continued financial support of the |
| 5 | | family;
|
| 6 | | (iv) restitution for harm done to the victim; |
| 7 | | and
|
| 8 | | (v) compliance with any other measures that |
| 9 | | the court may
deem appropriate; and
|
| 10 | | (2) the court orders the defendant to pay for the |
| 11 | | victim's counseling
services, to the extent that the court |
| 12 | | finds, after considering the
defendant's income and |
| 13 | | assets, that the defendant is financially capable of
paying |
| 14 | | for such services, if the victim was under 18 years of age |
| 15 | | at the
time the offense was committed and requires |
| 16 | | counseling as a result of the
offense.
|
| 17 | | Probation may be revoked or modified pursuant to Section |
| 18 | | 5-6-4; except
where the court determines at the hearing that |
| 19 | | the defendant violated a
condition of his or her probation |
| 20 | | restricting contact with the victim or
other family members or |
| 21 | | commits another offense with the victim or other
family |
| 22 | | members, the court shall revoke the defendant's probation and
|
| 23 | | impose a term of imprisonment.
|
| 24 | | For the purposes of this Section, "family member" and |
| 25 | | "victim" shall have
the meanings ascribed to them in Section |
| 26 | | 11-0.1 of the Criminal Code of
2012.
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| 1 | | (f) (Blank).
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| 2 | | (g) Whenever a defendant is convicted of an offense under |
| 3 | | Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
11-14, |
| 4 | | 11-14.3, 11-14.4 except for an offense that involves keeping a |
| 5 | | place of juvenile prostitution, 11-15, 11-15.1, 11-16, 11-17, |
| 6 | | 11-18, 11-18.1, 11-19, 11-19.1, 11-19.2,
12-13, 12-14, |
| 7 | | 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961 or the |
| 8 | | Criminal Code of 2012,
the defendant shall undergo medical |
| 9 | | testing to
determine whether the defendant has any sexually |
| 10 | | transmissible disease,
including a test for infection with |
| 11 | | human immunodeficiency virus (HIV) or
any other identified |
| 12 | | causative agent of acquired immunodeficiency syndrome
(AIDS). |
| 13 | | Any such medical test shall be performed only by appropriately
|
| 14 | | licensed medical practitioners and may include an analysis of |
| 15 | | any bodily
fluids as well as an examination of the defendant's |
| 16 | | person.
Except as otherwise provided by law, the results of |
| 17 | | such test shall be kept
strictly confidential by all medical |
| 18 | | personnel involved in the testing and must
be personally |
| 19 | | delivered in a sealed envelope to the judge of the court in |
| 20 | | which
the conviction was entered for the judge's inspection in |
| 21 | | camera. Acting in
accordance with the best interests of the |
| 22 | | victim and the public, the judge
shall have the discretion to |
| 23 | | determine to whom, if anyone, the results of the
testing may be |
| 24 | | revealed. The court shall notify the defendant
of the test |
| 25 | | results. The court shall
also notify the victim if requested by |
| 26 | | the victim, and if the victim is under
the age of 15 and if |
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| 1 | | requested by the victim's parents or legal guardian, the
court |
| 2 | | shall notify the victim's parents or legal guardian of the test
|
| 3 | | results.
The court shall provide information on the |
| 4 | | availability of HIV testing
and counseling at Department of |
| 5 | | Public Health facilities to all parties to
whom the results of |
| 6 | | the testing are revealed and shall direct the State's
Attorney |
| 7 | | to provide the information to the victim when possible.
A |
| 8 | | State's Attorney may petition the court to obtain the results |
| 9 | | of any HIV test
administered under this Section, and the court |
| 10 | | shall grant the disclosure if
the State's Attorney shows it is |
| 11 | | relevant in order to prosecute a charge of
criminal |
| 12 | | transmission of HIV under Section 12-5.01 or 12-16.2 of the |
| 13 | | Criminal Code of 1961 or the Criminal Code of 2012
against the |
| 14 | | defendant. The court shall order that the cost of any such test
|
| 15 | | shall be paid by the county and may be taxed as costs against |
| 16 | | the convicted
defendant.
|
| 17 | | (g-5) When an inmate is tested for an airborne communicable |
| 18 | | disease, as
determined by the Illinois Department of Public |
| 19 | | Health including but not
limited to tuberculosis, the results |
| 20 | | of the test shall be
personally delivered by the warden or his |
| 21 | | or her designee in a sealed envelope
to the judge of the court |
| 22 | | in which the inmate must appear for the judge's
inspection in |
| 23 | | camera if requested by the judge. Acting in accordance with the
|
| 24 | | best interests of those in the courtroom, the judge shall have |
| 25 | | the discretion
to determine what if any precautions need to be |
| 26 | | taken to prevent transmission
of the disease in the courtroom.
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| 1 | | (h) Whenever a defendant is convicted of an offense under |
| 2 | | Section 1 or 2
of the Hypodermic Syringes and Needles Act, the |
| 3 | | defendant shall undergo
medical testing to determine whether |
| 4 | | the defendant has been exposed to human
immunodeficiency virus |
| 5 | | (HIV) or any other identified causative agent of
acquired |
| 6 | | immunodeficiency syndrome (AIDS). Except as otherwise provided |
| 7 | | by
law, the results of such test shall be kept strictly |
| 8 | | confidential by all
medical personnel involved in the testing |
| 9 | | and must be personally delivered in a
sealed envelope to the |
| 10 | | judge of the court in which the conviction was entered
for the |
| 11 | | judge's inspection in camera. Acting in accordance with the |
| 12 | | best
interests of the public, the judge shall have the |
| 13 | | discretion to determine to
whom, if anyone, the results of the |
| 14 | | testing may be revealed. The court shall
notify the defendant |
| 15 | | of a positive test showing an infection with the human
|
| 16 | | immunodeficiency virus (HIV). The court shall provide |
| 17 | | information on the
availability of HIV testing and counseling |
| 18 | | at Department of Public Health
facilities to all parties to |
| 19 | | whom the results of the testing are revealed and
shall direct |
| 20 | | the State's Attorney to provide the information to the victim |
| 21 | | when
possible. A State's Attorney may petition the court to |
| 22 | | obtain the results of
any HIV test administered under this |
| 23 | | Section, and the court shall grant the
disclosure if the |
| 24 | | State's Attorney shows it is relevant in order to prosecute a
|
| 25 | | charge of criminal transmission of HIV under Section 12-5.01 or |
| 26 | | 12-16.2 of the Criminal
Code of 1961 or the Criminal Code of |
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| 1 | | 2012 against the defendant. The court shall order that the cost |
| 2 | | of any
such test shall be paid by the county and may be taxed as |
| 3 | | costs against the
convicted defendant.
|
| 4 | | (i) All fines and penalties imposed under this Section for |
| 5 | | any violation
of Chapters 3, 4, 6, and 11 of the Illinois |
| 6 | | Vehicle Code, or a similar
provision of a local ordinance, and |
| 7 | | any violation
of the Child Passenger Protection Act, or a |
| 8 | | similar provision of a local
ordinance, shall be collected and |
| 9 | | disbursed by the circuit
clerk as provided under Section 27.5 |
| 10 | | of the Clerks of Courts Act.
|
| 11 | | (j) In cases when prosecution for any violation of Section |
| 12 | | 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6, 11-8,
11-9, |
| 13 | | 11-11, 11-14, 11-14.3, 11-14.4, 11-15, 11-15.1, 11-16, 11-17, |
| 14 | | 11-17.1, 11-18, 11-18.1,
11-19, 11-19.1, 11-19.2, 11-20.1, |
| 15 | | 11-20.1B, 11-20.3, 11-21, 11-30, 11-40, 12-13, 12-14, 12-14.1, |
| 16 | | 12-15, or
12-16 of the
Criminal Code of 1961 or the Criminal |
| 17 | | Code of 2012, any violation of the Illinois Controlled |
| 18 | | Substances Act,
any violation of the Cannabis Control Act, or |
| 19 | | any violation of the Methamphetamine Control and Community |
| 20 | | Protection Act results in conviction, a
disposition of court |
| 21 | | supervision, or an order of probation granted under
Section 10 |
| 22 | | of the Cannabis Control Act, Section 410 of the Illinois
|
| 23 | | Controlled Substances Substance Act, or Section 70 of the |
| 24 | | Methamphetamine Control and Community Protection Act of a |
| 25 | | defendant, the court shall determine whether the
defendant is |
| 26 | | employed by a facility or center as defined under the Child |
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| 1 | | Care
Act of 1969, a public or private elementary or secondary |
| 2 | | school, or otherwise
works with children under 18 years of age |
| 3 | | on a daily basis. When a defendant
is so employed, the court |
| 4 | | shall order the Clerk of the Court to send a copy of
the |
| 5 | | judgment of conviction or order of supervision or probation to |
| 6 | | the
defendant's employer by certified mail.
If the employer of |
| 7 | | the defendant is a school, the Clerk of the Court shall
direct |
| 8 | | the mailing of a copy of the judgment of conviction or order of
|
| 9 | | supervision or probation to the appropriate regional |
| 10 | | superintendent of schools.
The regional superintendent of |
| 11 | | schools shall notify the State Board of
Education of any |
| 12 | | notification under this subsection.
|
| 13 | | (j-5) A defendant at least 17 years of age who is convicted |
| 14 | | of a felony and
who has not been previously convicted of a |
| 15 | | misdemeanor or felony and who is
sentenced to a term of |
| 16 | | imprisonment in the Illinois Department of Corrections
shall as |
| 17 | | a condition of his or her sentence be required by the court to |
| 18 | | attend
educational courses designed to prepare the defendant |
| 19 | | for a high school diploma
and to work toward a high school |
| 20 | | diploma or to work toward passing the high
school level Test of |
| 21 | | General Educational Development (GED) or to work toward
|
| 22 | | completing a vocational training program offered by the |
| 23 | | Department of
Corrections. If a defendant fails to complete the |
| 24 | | educational training
required by his or her sentence during the |
| 25 | | term of incarceration, the Prisoner
Review Board shall, as a |
| 26 | | condition of mandatory supervised release, require the
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| 1 | | defendant, at his or her own expense, to pursue a course of |
| 2 | | study toward a high
school diploma or passage of the GED test. |
| 3 | | The Prisoner Review Board shall
revoke the mandatory supervised |
| 4 | | release of a defendant who wilfully fails to
comply with this |
| 5 | | subsection (j-5) upon his or her release from confinement in a
|
| 6 | | penal institution while serving a mandatory supervised release |
| 7 | | term; however,
the inability of the defendant after making a |
| 8 | | good faith effort to obtain
financial aid or pay for the |
| 9 | | educational training shall not be deemed a wilful
failure to |
| 10 | | comply. The Prisoner Review Board shall recommit the defendant
|
| 11 | | whose mandatory supervised release term has been revoked under |
| 12 | | this subsection
(j-5) as provided in Section 3-3-9. This |
| 13 | | subsection (j-5) does not apply to a
defendant who has a high |
| 14 | | school diploma or has successfully passed the GED
test. This |
| 15 | | subsection (j-5) does not apply to a defendant who is |
| 16 | | determined by
the court to be developmentally disabled or |
| 17 | | otherwise mentally incapable of
completing the educational or |
| 18 | | vocational program.
|
| 19 | | (k) (Blank).
|
| 20 | | (l) (A) Except as provided
in paragraph (C) of subsection |
| 21 | | (l), whenever a defendant,
who is an alien as defined by |
| 22 | | the Immigration and Nationality Act, is convicted
of any |
| 23 | | felony or misdemeanor offense, the court after sentencing |
| 24 | | the defendant
may, upon motion of the State's Attorney, |
| 25 | | hold sentence in abeyance and remand
the defendant to the |
| 26 | | custody of the Attorney General of
the United States or his |
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| 1 | | or her designated agent to be deported when:
|
| 2 | | (1) a final order of deportation has been issued |
| 3 | | against the defendant
pursuant to proceedings under |
| 4 | | the Immigration and Nationality Act, and
|
| 5 | | (2) the deportation of the defendant would not |
| 6 | | deprecate the seriousness
of the defendant's conduct |
| 7 | | and would not be inconsistent with the ends of
justice.
|
| 8 | | Otherwise, the defendant shall be sentenced as |
| 9 | | provided in this Chapter V.
|
| 10 | | (B) If the defendant has already been sentenced for a |
| 11 | | felony or
misdemeanor
offense, or has been placed on |
| 12 | | probation under Section 10 of the Cannabis
Control Act,
|
| 13 | | Section 410 of the Illinois Controlled Substances Act, or |
| 14 | | Section 70 of the Methamphetamine Control and Community |
| 15 | | Protection Act, the court
may, upon motion of the State's |
| 16 | | Attorney to suspend the
sentence imposed, commit the |
| 17 | | defendant to the custody of the Attorney General
of the |
| 18 | | United States or his or her designated agent when:
|
| 19 | | (1) a final order of deportation has been issued |
| 20 | | against the defendant
pursuant to proceedings under |
| 21 | | the Immigration and Nationality Act, and
|
| 22 | | (2) the deportation of the defendant would not |
| 23 | | deprecate the seriousness
of the defendant's conduct |
| 24 | | and would not be inconsistent with the ends of
justice.
|
| 25 | | (C) This subsection (l) does not apply to offenders who |
| 26 | | are subject to the
provisions of paragraph (2) of |
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| 1 | | subsection (a) of Section 3-6-3.
|
| 2 | | (D) Upon motion of the State's Attorney, if a defendant |
| 3 | | sentenced under
this Section returns to the jurisdiction of |
| 4 | | the United States, the defendant
shall be recommitted to |
| 5 | | the custody of the county from which he or she was
|
| 6 | | sentenced.
Thereafter, the defendant shall be brought |
| 7 | | before the sentencing court, which
may impose any sentence |
| 8 | | that was available under Section 5-5-3 at the time of
|
| 9 | | initial sentencing. In addition, the defendant shall not be |
| 10 | | eligible for
additional sentence credit for good conduct as |
| 11 | | provided under
Section 3-6-3.
|
| 12 | | (m) A person convicted of criminal defacement of property |
| 13 | | under Section
21-1.3 of the Criminal Code of 1961 or the |
| 14 | | Criminal Code of 2012, in which the property damage exceeds |
| 15 | | $300
and the property damaged is a school building, shall be |
| 16 | | ordered to perform
community service that may include cleanup, |
| 17 | | removal, or painting over the
defacement.
|
| 18 | | (n) The court may sentence a person convicted of a |
| 19 | | violation of Section
12-19, 12-21, 16-1.3, or 17-56, or |
| 20 | | subsection (a) or (b) of Section 12-4.4a, of the Criminal Code |
| 21 | | of 1961 or the Criminal Code of 2012 (i) to an impact
|
| 22 | | incarceration program if the person is otherwise eligible for |
| 23 | | that program
under Section 5-8-1.1, (ii) to community service, |
| 24 | | or (iii) if the person is an
addict or alcoholic, as defined in |
| 25 | | the Alcoholism and Other Drug Abuse and
Dependency Act, to a |
| 26 | | substance or alcohol abuse program licensed under that
Act. |
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| 1 | | (o) Whenever a person is convicted of a sex offense as |
| 2 | | defined in Section 2 of the Sex Offender Registration Act, the |
| 3 | | defendant's driver's license or permit shall be subject to |
| 4 | | renewal on an annual basis in accordance with the provisions of |
| 5 | | license renewal established by the Secretary of State.
|
| 6 | | (Source: P.A. 96-348, eff. 8-12-09; 96-400, eff. 8-13-09; |
| 7 | | 96-829, eff. 12-3-09; 96-1200, eff. 7-22-10; 96-1551, Article |
| 8 | | 1, Section 970, eff. 7-1-11; 96-1551, Article 2, Section 1065, |
| 9 | | eff. 7-1-11; 96-1551, Article 10, Section 10-150, eff. 7-1-11; |
| 10 | | 97-159, eff. 7-21-11; 97-697, eff. 6-22-12; 97-917, eff. |
| 11 | | 8-9-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, |
| 12 | | eff. 1-25-13; revised 11-12-13.)
|