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Title V - Proceedings Prior To Trial

      (725 ILCS 5/Tit. V heading)TITLE V. PROCEEDINGS PRIOR TO TRIAL

      (725 ILCS 5/Art. 113 heading)ARTICLE 113. ARRAIGNMENT

(725 ILCS 5/113‑1) (from Ch. 38, par. 113‑1)     Sec. 113‑1. Procedure on arraignment.     Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests the formal charge shall be read to him before he is required to plead. An entry of the arraignment shall be made of record. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/113‑2) (from Ch. 38, par. 113‑2)     Sec. 113‑2. Joint defendants.     Defendants who are jointly charged may be arraigned separately or together in the discretion of the court. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/113‑3) (from Ch. 38, par. 113‑3)     Sec. 113‑3. (a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge. If the accused is a dissolved corporation, and is not represented by counsel, the court may, in the interest of justice, appoint as counsel a licensed attorney of this State.     (b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. If there is no Public Defender in the county or if the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the Public Defender, the court shall appoint as counsel a licensed attorney at law of this State, except that in a county having a population of 2,000,000 or more the Public Defender shall be appointed as counsel in all misdemeanor cases where the defendant is indigent and desires counsel unless the case involves multiple defendants, in which case the court may appoint counsel other than the Public Defender for the additional defendants. The court shall require an affidavit signed by any defendant who requests court‑appointed counsel. Such affidavit shall be in the form established by the Supreme Court containing sufficient information to ascertain the assets and liabilities of that defendant. The Court may direct the Clerk of the Circuit Court to assist the defendant in the completion of the affidavit. Any person who knowingly files such affidavit containing false information concerning his assets and liabilities shall be liable to the county where the case, in which such false affidavit is filed, is pending for the reasonable value of the services rendered by the public defender or other court‑appointed counsel in the case to the extent that such services were unjustly or falsely procured.     (c) Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel. In counties with a population greater than 2,000,000, the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee stated in the order and based upon a rate of compensation of not more than $40 for each hour spent while court is in session and not more than $30 for each hour otherwise spent representing a defendant, and such compensation shall not exceed $150 for each defendant represented in misdemeanor cases and $1250 in felony cases, in addition to expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that such payment is necessary to provide fair compensation for protracted representation. A trial court may entertain the filing of this verified statement before the termination of the cause, and may order the provisional payment of sums during the pendency of the cause.     (d) In capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county Treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant.     (e) If the court in any county having a population greater than 2,000,000 determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of such expenses, order the county treasurer of the county of trial, in such counties having a population greater than 2,000,000 to pay the general expenses of the trial incurred by the defendant not to exceed $50 for each defendant.     (f) The provisions of this Section relating to appointment of counsel, compensation of counsel, and payment of expenses in capital cases apply except when the compensation and expenses are being provided under the Capital Crimes Litigation Act. (Source: P.A. 91‑589, eff. 1‑1‑00.)

(725 ILCS 5/113‑3.1) (from Ch. 38, par. 113‑3.1)     Sec. 113‑3.1. Payment for Court‑Appointed Counsel.     (a) Whenever under either Section 113‑3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for such representation. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113‑3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.     (b) Any sum ordered paid under this Section may not exceed $500 for a defendant charged with a misdemeanor, $5,000 for a defendant charged with a felony, or $2,500 for a defendant who is appealing a conviction of any class offense.     (c) The method of any payment required under this Section shall be as specified by the Court. The court may order that payments be made on a monthly basis during the term of representation; however, the sum deposited as money bond shall not be used to satisfy this court order. Any sum deposited as money bond with the Clerk of the Circuit Court under Section 110‑7 of this Code may be used in the court's discretion in whole or in part to comply with any payment order entered in accordance with paragraph (a) of this Section. The court may give special consideration to the interests of relatives or other third parties who may have posted a money bond on the behalf of the defendant to secure his release. At any time prior to full payment of any payment order the court on its own motion or the motion of any party may reduce, increase, or suspend the ordered payment, or modify the method of payment, as the interest of fairness may require. No increase, suspension, or reduction may be ordered without a hearing and notice to all parties.     (d) The Supreme Court or the circuit courts may provide by rule for procedures for the enforcement of orders entered under this Section. Such rules may provide for the assessment of all costs, including attorneys' fees which are required for the enforcement of orders entered under this Section when the court in an enforcement proceeding has first found that the defendant has willfully refused to pay. The Clerk of the Circuit Court shall keep records and make reports to the court concerning funds paid under this Section in whatever manner the court directs.     (e) Whenever an order is entered under this Section for the reimbursement of the State due to the appointment of the State Appellate Defender as counsel on appeal, the order shall provide that the Clerk of the Circuit Court shall retain all funds paid pursuant to such order until the full amount of the sum ordered to be paid by the defendant has been paid. When no balance remains due on such order, the Clerk of the Circuit Court shall inform the court of this fact and the court shall promptly order the Clerk of the Circuit Court to pay to the State Treasurer all of the sum paid.     (f) The Clerk of the Circuit Court shall retain all funds under this Section paid for the reimbursement of the county, and shall inform the court when no balance remains due on an order entered hereunder. The Clerk of the Circuit Court shall make payments of funds collected under this Section to the County Treasurer in whatever manner and at whatever point as the court may direct, including payments made on a monthly basis during the term of representation.     (g) A defendant who fails to obey any order of court entered under this Section may be punished for contempt of court. Any arrearage in payments may be reduced to judgment in the court's discretion and collected by any means authorized for the collection of money judgments under the law of this State. (Source: P.A. 88‑394.)

(725 ILCS 5/113‑4) (from Ch. 38, par. 113‑4)     Sec. 113‑4. Plea. (a) When called upon to plead at arraignment the defendant shall be furnished with a copy of the charge and shall plead guilty, guilty but mentally ill, or not guilty.     (b) If the defendant stands mute a plea of not guilty shall be entered for him and the trial shall proceed on such plea.     (c) If the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the consequences of such plea and the maximum penalty provided by law for the offense which may be imposed by the court. After such explanation if the defendant understandingly persists in his plea it shall be accepted by the court and recorded.     (d) If the defendant pleads guilty but mentally ill, the court shall not accept such a plea until the defendant has undergone examination by a clinical psychologist or psychiatrist and the judge has examined the psychiatric or psychological report or reports, held a hearing on the issue of the defendant's mental condition and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense to which the plea is entered.     (e) If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence. (Source: P.A. 82‑553.)

(725 ILCS 5/113‑4.1) (from Ch. 38, par. 113‑4.1)     Sec. 113‑4.1. Plea of nolo contendere.     A defendant who is charged with a violation of the Illinois Income Tax Act may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. (Source: P. A. 78‑267.)

(725 ILCS 5/113‑5) (from Ch. 38, par. 113‑5)     Sec. 113‑5. Plea and Waiver of Jury by Person under 18. No person under the age of 18 years shall be permitted to plead guilty, guilty but mentally ill or waive trial by jury in any case except where the penalty is by fine only unless he is represented by counsel in open court. (Source: P.A. 82‑553.)

(725 ILCS 5/113‑6) (from Ch. 38, par. 113‑6)     Sec. 113‑6. Effect of failure to arraign and irregularity of arraignment.     Neither a failure to arraign nor an irregularity in the arraignment shall effect the validity of any proceeding in the cause if the defendant pleads to the charge or proceeds to trial without objecting to such failure or irregularity. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/113‑8)     Sec. 113‑8. Advisement concerning status as an alien. Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:     "If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.". (Source: P.A. 93‑373, eff. 1‑1‑04.)

      (725 ILCS 5/Art. 114 heading)ARTICLE 114. PRE‑TRIAL MOTIONS

(725 ILCS 5/114‑1) (from Ch. 38, par. 114‑1)     Sec. 114‑1. Motion to dismiss charge.     (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:         (1) The defendant has not been placed on trial in

compliance with Section 103‑5 of this Code.

(2) The prosecution of the offense is barred by

Sections 3‑3 through 3‑8 of the Criminal Code of 1961, as heretofore and hereafter amended.

(3) The defendant has received immunity from

prosecution for the offense charged.

(4) The indictment was returned by a Grand Jury

which was improperly selected and which results in substantial injustice to the defendant.

(5) The indictment was returned by a Grand Jury

which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant.

(6) The court in which the charge has been filed

does not have jurisdiction.

(7) The county is an improper place of trial.         (8) The charge does not state an offense.         (9) The indictment is based solely upon the

testimony of an incompetent witness.

(10) The defendant is misnamed in the charge and the

misnomer results in substantial injustice to the defendant.

(11) The requirements of Section 109‑3.1 have not

been complied with.

(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.     (c) If the motion presents only an issue of law the court shall determine it without the necessity of further pleadings. If the motion alleges facts not of record in the case the State shall file an answer admitting or denying each of the factual allegations of the motion.     (d) When an issue of fact is presented by a motion to dismiss and the answer of the State the court shall conduct a hearing and determine the issues.     (d‑5) When a defendant seeks dismissal of the charge upon the ground set forth in subsection (a)(7) of this Section, the defendant shall make a prima facie showing that the county is an improper place of trial. Upon such showing, the State shall have the burden of proving, by a preponderance of the evidence, that the county is the proper place of trial.     (e) Dismissal of the charge upon the grounds set forth in subsections (a)(4) through (a)(11) of this Section shall not prevent the return of a new indictment or the filing of a new charge, and upon such dismissal the court may order that the defendant be held in custody or, if the defendant had been previously released on bail, that the bail be continued for a specified time pending the return of a new indictment or the filing of a new charge.     (f) If the court determines that the motion to dismiss based upon the grounds set forth in subsections (a)(6) and (a)(7) is well founded it may, instead of dismissal, order the cause transferred to a court of competent jurisdiction or to a proper place of trial. (Source: P.A. 92‑16, eff. 6‑28‑01.)

(725 ILCS 5/114‑2) (from Ch. 38, par. 114‑2)     Sec. 114‑2. Motion for a bill of particulars.     (a) A written motion for a bill of particulars shall be filed before or within a reasonable time after arraignment and shall specify the particulars of the offense necessary to enable the defendant to prepare his defense.     (b) A bill of particulars may be amended at any time before trial subject to such conditions as justice may require. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/114‑3) (from Ch. 38, par. 114‑3)     Sec. 114‑3. Motion to discharge jury panel.     (a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. For good cause shown the court may entertain the motion after the voir dire has begun but such motion shall not be heard after a jury has been sworn to hear the cause.     (b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.     (c) If the motion states facts which show that the jury panel has been improperly selected or drawn it shall be the duty of the court to conduct a hearing. The burden of proving that the jury panel was improperly selected or drawn shall be upon the movant.     (d) If the court finds that the jury panel was improperly selected or drawn the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/114‑4) (from Ch. 38, par. 114‑4)     Sec. 114‑4. Motion for continuance.     (a) The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.     (b) A written motion for continuance made by defendant more than 30 days after arraignment may be granted when:         (1) Counsel for the defendant is ill, has died, or

is held to trial in another cause; or

(2) Counsel for the defendant has been unable to

prepare for trial because of illness or because he has been held to trial in another cause; or

(3) A material witness is unavailable and the

defense will be prejudiced by the absence of his testimony; however, this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; or

(4) The defendant cannot stand trial because of

physical or mental incompetency; or

(5) Pre‑trial publicity concerning the case has

caused a prejudice against defendant on the part of the community; or

(6) The amendment of a charge or a bill of

particulars has taken the defendant by surprise and he cannot fairly defend against such an amendment without a continuance.

(c) A written motion for continuance made by the State more than 30 days after arraignment may be granted when:         (1) The prosecutor assigned to the case is ill, has

died, or is held to trial in another cause; or

(2) A material witness is unavailable and the

prosecution will be prejudiced by the absence of his testimony; however this shall not be a ground for continuance if the defendant will stipulate that the testimony of the witness would be as alleged; or

(3) Pre‑trial publicity concerning the case has

caused a prejudice against the prosecution on the part of the community.

(d) The court may upon the written motion of either party or upon the court's own motion order a continuance for grounds not stated in subsections (b) and (c) of this Section if he finds that the interests of justice so require.     (e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where 1 year has expired since the filing of an information or indictments, filed after January 1, 1980, if the court finds that the State has failed to use due diligence in bringing the case to trial, the court may, after a hearing had on the cause, on its own motion, dismiss the information or indictment. Any demand that the defendant had made for a speedy trial under Section 103‑5 of this code shall not abate if the State files a new information or the grand jury reindicts in the cause.     After a hearing has been held upon the issue of the State's diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall be not less than 14 nor more than 30 days from the date of the court's finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this Section.     (f) After trial has begun a reasonably brief continuance may be granted to either side in the interests of justice.     (g) During the time the General Assembly is in session, the court shall, on motion of either party or on its own motion, grant a continuance where the party or his attorney is a member of either house of the General Assembly whose presence is necessary for the full, fair trial of the cause and, in the case of an attorney, where the attorney was retained by the party before the cause was set for trial.     (h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.     (i) Physical incapacity of a defendant may be grounds for a continuance at any time. If, upon written motion of the defendant or the State or upon the court's own motion, and after presentation of affidavits or evidence, the court determines that the defendant is physically unable to appear in court or to assist in his defense, or that such appearance would endanger his health or result in substantial prejudice, a continuance shall be granted. If such continuance precedes the appearance of counsel for such defendant the court shall simultaneously appoint counsel in the manner prescribed by Section 113‑3 of this Act. Such continuance shall suspend the provisions of Section 103‑5 of this Act, which periods of time limitation shall commence anew when the court, after presentation of additional affidavits or evidence, has determined that such physical incapacity has been substantially removed.     (j) In actions arising out of building code violations or violations of municipal ordinances caused by the failure of a building or structure to conform to the minimum standards of health and safety, the court shall grant a continuance only upon a written motion by the party seeking the continuance specifying the reason why such continuance should be granted.     (k) In prosecutions for violations of Section 10‑1, 10‑2, 12‑13, 12‑14, 12‑14.1, 12‑15 or 12‑16 of the "Criminal Code of 1961" involving a victim or witness who is a minor under 18 years of age, the court shall, in ruling on any motion or other request for a delay or continuance of proceedings, consider and give weight to the adverse impact the delay or continuance may have on the well‑being of a child or witness.     (l) The court shall consider the age of the victim and the condition of the victim's health when ruling on a motion for a continuance. (Source: P.A. 89‑428, eff. 12‑13‑95; 89‑462, eff. 5‑29‑96.)

(725 ILCS 5/114‑5) (from Ch. 38, par. 114‑5)     Sec. 114‑5. Substitution of judge. (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.     (b) Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of this Section for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.     (c) Within 10 days after a cause has been placed on the trial call of a judge the State may move the court in writing for a substitution of that judge on the ground that such judge is prejudiced against the State. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The State may name only one judge as prejudiced, pursuant to this subsection.     (d) In addition to the provisions of subsections (a), (b) and (c) of this Section the State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion. (Source: P.A. 84‑1428.)

(725 ILCS 5/114‑6) (from Ch. 38, par. 114‑6)     Sec. 114‑6. Change of place of trial.) (a) A defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.     (b) The motion shall be in writing and supported by affidavit which shall state facts showing the nature of the prejudice alleged. The State may file counter‑affidavits. The court shall conduct a hearing and determine the merits of the motion.     (c) If the court determines that there exists in the county where the prosecution is pending such prejudice against the defendant that he cannot receive a fair trial it shall transfer the cause to the circuit court in any county where a fair trial may be had.     (d) In all cases of change of place of trial the clerk of the court from which the change is granted shall immediately prepare a full transcript of the record and proceedings in the case, and of the petition, affidavits and order for the change of place of trial, and transmit the same, together with all papers filed in the case, including the indictment and recognizances of the defendant and all witnesses, to the proper court. If the change is granted to a part but not all of several defendants, a certified copy of the indictment or information, and of the other papers in the case, shall be transmitted to the court to which the c Copyright © 2012-2022 Laws9.Com All rights reserved. Contact Us | About Us | Terms | Privacy