Bill Text: IL SB3502 | 2019-2020 | 101st General Assembly | Introduced

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Bill Title: Amends the Code of Civil Procedure. Allows any party to intervene and present evidence and argument in opposition to a person seeking a certificate of innocence.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Failed) 2021-01-13 - Session Sine Die [SB3502 Detail]

Download: Illinois-2019-SB3502-Introduced.html

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101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 SB3502 Introduced 2/13/2020, by Sen. Bill Cunningham SYNOPSIS AS INTRODUCED:
735 ILCS 5/2-702
Amends the Code of Civil Procedure. Allows any party to intervene and present evidence and argument in opposition to a person seeking a certificate of innocence.
LRB101 19792 LNS 69303 b
A BILL FOR
SB3502 LRB101 19792 LNS 69303 b
AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Civil Procedure is amended by
changing Section 2-702 as follows:
(735 ILCS 5/2-702)
Sec. 2-702. Petition for a certificate of innocence that
the petitioner was innocent of all offenses for which he or she
was incarcerated.
(a) The General Assembly finds and declares that innocent
persons who have been wrongly convicted of crimes in Illinois
and subsequently imprisoned have been frustrated in seeking
legal redress due to a variety of substantive and technical
obstacles in the law and that such persons should have an
available avenue to obtain a finding of innocence so that they
may obtain relief through a petition in the Court of Claims.
The General Assembly further finds misleading the current legal
nomenclature which compels an innocent person to seek a pardon
for being wrongfully incarcerated. It is the intent of the
General Assembly that the court, in exercising its discretion
as permitted by law regarding the weight and admissibility of
evidence submitted pursuant to this Section, shall, in the
interest of justice, give due consideration to difficulties of

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proof caused by the passage of time, the death or
unavailability of witnesses, the destruction of evidence or
other factors not caused by such persons or those acting on
their behalf.
(b) Any person convicted and subsequently imprisoned for
one or more felonies by the State of Illinois which he or she
did not commit may, under the conditions hereinafter provided,
file a petition for certificate of innocence in the circuit
court of the county in which the person was convicted. The
petition shall request a certificate of innocence finding that
the petitioner was innocent of all offenses for which he or she
was incarcerated.
(c) In order to present the claim for certificate of
innocence of an unjust conviction and imprisonment, the
petitioner must attach to his or her petition documentation
demonstrating that:
(1) he or she has been convicted of one or more
felonies by the State of Illinois and subsequently
sentenced to a term of imprisonment, and has served all or
any part of the sentence; and
(2) his or her judgment of conviction was reversed or
vacated, and the indictment or information dismissed or, if
a new trial was ordered, either he or she was found not
guilty at the new trial or he or she was not retried and
the indictment or information dismissed; or the statute, or
application thereof, on which the indictment or

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information was based violated the Constitution of the
United States or the State of Illinois; and
(3) his or her claim is not time barred by the
provisions of subsection (i) of this Section.
(d) The petition shall state facts in sufficient detail to
permit the court to find that the petitioner is likely to
succeed at trial in proving that the petitioner is innocent of
the offenses charged in the indictment or information or his or
her acts or omissions charged in the indictment or information
did not constitute a felony or misdemeanor against the State of
Illinois, and the petitioner did not by his or her own conduct
voluntarily cause or bring about his or her conviction. The
petition shall be verified by the petitioner.
(e) A copy of the petition shall be served on the Attorney
General and the State's Attorney of the county where the
conviction was had. The Attorney General and the State's
Attorney of the county where the conviction was had shall have
the right to intervene as parties.
(f) In any hearing seeking a certificate of innocence, the
court may take judicial notice of prior sworn testimony or
evidence admitted in the criminal proceedings related to the
convictions which resulted in the alleged wrongful
incarceration, if the petitioner was either represented by
counsel at such prior proceedings or the right to counsel was
knowingly waived.
(g) In order to obtain a certificate of innocence the

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petitioner must prove by a preponderance of evidence that:
(1) the petitioner was convicted of one or more
felonies by the State of Illinois and subsequently
sentenced to a term of imprisonment, and has served all or
any part of the sentence;
(2)(A) the judgment of conviction was reversed or
vacated, and the indictment or information dismissed or, if
a new trial was ordered, either the petitioner was found
not guilty at the new trial or the petitioner was not
retried and the indictment or information dismissed; or (B)
the statute, or application thereof, on which the
indictment or information was based violated the
Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged
in the indictment or information or his or her acts or
omissions charged in the indictment or information did not
constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct
voluntarily cause or bring about his or her conviction.
(h) If the court finds that the petitioner is entitled to a
judgment, it shall enter a certificate of innocence finding
that the petitioner was innocent of all offenses for which he
or she was incarcerated. Upon entry of the certificate of
innocence or pardon from the Governor stating that such pardon
was issued on the ground of innocence of the crime for which he
or she was imprisoned, (1) the clerk of the court shall

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transmit a copy of the certificate of innocence to the clerk of
the Court of Claims, together with the claimant's current
address; and (2) the court shall enter an order expunging the
record of arrest from the official records of the arresting
authority and order that the records of the clerk of the
circuit court and Department of State Police be sealed until
further order of the court upon good cause shown or as
otherwise provided herein, and the name of the defendant
obliterated from the official index requested to be kept by the
circuit court clerk under Section 16 of the Clerks of Courts
Act in connection with the arrest and conviction for the
offense but the order shall not affect any index issued by the
circuit court clerk before the entry of the order. The court
shall enter the expungement order regardless of whether the
petitioner has prior criminal convictions.
All records sealed by the Department of State Police may be
disseminated by the Department only as required by law or to
the arresting authority, the State's Attorney, the court upon a
later arrest for the same or similar offense, or for the
purpose of sentencing for any subsequent felony. Upon
conviction for any subsequent offense, the Department of
Corrections shall have access to all sealed records of the
Department pertaining to that individual.
Upon entry of the order of expungement, the clerk of the
circuit court shall promptly mail a copy of the order to the
person whose records were expunged and sealed.

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(i) Any person seeking a certificate of innocence under
this Section based on the dismissal of an indictment or
information or acquittal that occurred before the effective
date of this amendatory Act of the 95th General Assembly shall
file his or her petition within 2 years after the effective
date of this amendatory Act of the 95th General Assembly. Any
person seeking a certificate of innocence under this Section
based on the dismissal of an indictment or information or
acquittal that occurred on or after the effective date of this
amendatory Act of the 95th General Assembly shall file his or
her petition within 2 years after the dismissal.
(j) The decision to grant or deny a certificate of
innocence shall be binding only with respect to claims filed in
the Court of Claims and shall not have a res judicata effect on
any other proceedings. Any party, including, but not limited
to, the State's Attorney of the county with jurisdiction and
the municipality, county, or agency of arrest, may intervene
and present evidence and argument in opposition to the person
seeking a certificate of innocence under this Section.
(Source: P.A. 98-133, eff. 1-1-14.)