Chapter VI Non-probationable Cases

• Library: Guide to Sentencing and Bond Hearings in Illinois (2018 Ed.)

Chapter VI. NON-PROBATIONABLE CASES

Refer to 730 ILCS 5/5-5-3(c)(2) as well as the sentencing provisions of each offense to determine whether an offense is probationable. A mandatory non-probationable sentence is not a sentencing enhancement when the factor making the offense non-probationable is based on a prior conviction, and is therefore not subject to Apprendi or the prohibition against double enhancements. However, if the factor requiring a non-probationable sentence is not based on a prior conviction (e.g., any forcible felony committed as part of gang activity), the defendant must be given notice and the enhancing factor must be submitted to the jury either as an element of the offense or as a separate interrogatory and proven beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151 (2013).

A defendant who is extendible because of his background (a prior conviction for a Class 1 or greater offense when being sentenced for a Class 1 or greater offense) is also non-probationable even if he has only one prior Class 1 conviction in his background. Fitzsimmons v. Norgle, 104 Ill. 2d 369 (1984); People v. Dycus, 291 Ill. App. 3d 14 (2d Dist. 1997); Harris v. United States, 536 U.S. 545 (2002).

A. Circumstances in Which an Offender is Non-Probationable

1. A Class 1 or greater felony if the offender has been previously convicted of a Class 1 or greater felony within 10 years of the date on which the offender committed the offense for which he or she is now being sentenced, except as otherwise provided in Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act [20 ILCS 301/40-10 (TASC)]. Exception: If the current case is a Class 2 gun case or sex case and the defendant has any prior Class 2 or greater conviction, then he/she is non-probationable on the current case. The prior conviction includes any state or federal conviction for an offense that contained the same elements as a current Illinois Class 1 or greater offense. Unlike the extendibility provisions, time spent in custody is irrelevant in calculating the 10 year period. Adding ten years to the date of sentencing on the prior case will usually give you the proper non-probati-onable period. This section also applies to offenders who were convicted federally or in other states when the elements of those other offenses are the same as a Class 1 or greater offense in Illinois. (Effective 1/1/18, Public Act 9900938 amended this section so that the affected current and prior

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