Illinois Felony Sentencing in Cook County & Lake County

 

Felony Sentences

In felony cases, the judge has the legal authority to sentence the defendant to a range of sentences, including conditional discharge (which is non-reporting), probation (where the defendant must report to a probation officer), jail, prison, periodic imprisonment, boot camp, fines, restitution, and TASC probation (short for Treatment Alternatives to Street Crimes).

Probation is Generally Required

The court cannot sentence a felony offender to a conviction or restitution if there are no other conditions of the sentence. For example, the sentence must combine two or more of the above dispositions, such as restitution AND probation.

Length of Felony Probation

Probation sentences for felony offenses in Illinois follow these rules: for Class 1 and Class 2 felony offenses, the longest term of probation is four (4) years, which is 48 months. For Class 3 or Class 4 felonies, the longest time a defendant can be on probation is two and a half (2 and 1/2) years, which is 30 months. However, if the prosecutor files a motion seeking to re-sentence the defendant for violating probation, then the term of probation can be extended. In Cook County, these motions are called Violations of Probation (VOPs), while in Lake County, they are called Petitions to Revoke (PTRs).

Felony Supervision

A felony case cannot result in supervision, although for unlawful possession of a controlled substance and cannabis cases, the court may sentence a defendant to special Section 550/1410 probation. This special probation, frequently referred to as 410 probation, allows the case to be dismissed after successful completion of probation. The defendant would then be eligible for expungement. This is the only type of felony case that can be expunged. Learn more about expungement and sealing.

Periodic Imprisonment

Felony offenders can be sentenced to periodic imprisonment as opposed to a term of prison (DOC) if they are on probation. Periodic imprisonment allows the defendant to work during the day and return to custody at night. Periodic imprisonment programs are operated in the Lake County jail and Cook County jail (Division 14).

Non-Probationable Felonies

For Class X felonies, probation is not possible. This type of offense must result in a sentence of prison (i.e., Illinois Department of Corrections, known as DOC), in a range of 6 - 30 years. For the Class 1 felony of residential burglary, the defendant must also receive a sentence of 4 - 15 years. When probation is not possible, the felony is called non-probationable.

Extended Term Sentencing

Under certain circumstances, the judge can sentence an offender to an extended term sentence, which is double the range of what would normally apply. The table below describes the range of imprisonment for each class of felony, as well as the extended term, available periodic imprisonment, and term of parole (mandatory supervised release, also called MSR).

Maximum Prison (DOC) Sentences

Class	Term	Extended	Parole	Periodic Imprisonment
X	6 - 30 years	30 - 60 years	3 years*	Not Available
1	4 - 15 years	15 - 30 years	2 years	3 - 4 years
2	3 - 7 years	7 - 14 years	2 years	18 - 30 months
3	2 - 5 years	5 - 10 years	1 year	18 months
4	1 - 3 years	3 - 6 years	1 year	18 months

*As of 2009, IDOC has been shortening parole on Class X felonies to one and a half (1 and 1/2) years.

Consecutive Sentencing

Usually, prison sentences (DOC) are served concurrently. When a defendant is sentenced to 1 year on a felony case, and 1 year for another felony case, the defendant serves only 1 year. Both sentences run together and are served simultaneously. However, under certain circumstances, a prison (DOC) sentence must be served consecutively to another sentence. When sentences are consecutive, they must be served back-to-back. The defendant does not begin to serve the second sentence until after the first sentence has been served. Aggravated criminal sexual assault is a felony that requires consecutive sentencing.

Sentencing Hearings

During a sentencing hearing, the court will hear factors in aggravation and mitigation before imposing a sentence. Factors in aggravation are those facts or circumstances that suggest the defendant is more culpable or guilty and deserving of a harsh sentence. Factors in mitigation suggest the defendant is less culpable or guilty and deserving of a lighter sentence.

 

Improper Factors in Aggravation

The prosecution cannot ask for the judge to consider certain facts as aggravation if they are part of the crime itself (e.g., elements of the offense). For example, in a case of armed violence where the defendant possessed a gun, the prosecution cannot ask the court to sentence the defendant more severely for possessing a gun because that is an element of the crime. Likewise, in a case of murder, the State cannot ask the court to sentence the defendant for longer because the offense involved death because the death is part of the offense of murder.

 

Class X Felony Sentencing:  When Probation is Possible

A Class X felony in Illinois is the most serious felony below first degree murder. It requires the court to sentence a defendant to prison (e.g., the Illinois Department of Corrections or DOC). The minimum sentence is six (6) years, and the maximum is 30 years. However, the court has authority to NOT sentence the defendant to prison (DOC) if the defendant has disabilities.

 

Sentence of Prison Followed by Probation

On certain occasions, the State will agree to a sentence of prison (DOC) followed by a term of probation. The court may go along with this sentence. For example, a defendant who pleads guilty to the offense of unlawful possession of a controlled substance with intent to deliver can serve six (6) years prison (DOC) followed by two (2) years probation.

 

Sentencing for Unlawful Possession of a Controlled Substance

If a defendant is charged with possessing two (2) or more drugs at the same time, that is considered to be only one criminal offense of unlawful possession of a controlled substance. Therefore, the defendant should receive only one sentence.

 

Enhancement of an Offense from Misdemeanor to Felony

The State may use a prior conviction for misdemeanor or a felony to enhance the defendant’s charge from a misdemeanor to a felony, or to a more serious felony. The State may use a prior conviction to enhance an offense even if the defendant did NOT have an attorney representing him or her for that previous conviction.

 

Improper Extended Term Sentencing

When the State uses a prior conviction for a misdemeanor or felony to enhance the charge to a higher level felony, the judge cannot use that conviction as a reason to impose an extended sentence.

 

Previously Dismissed Cases & Offenses for which Defendant was NOT Charged

The prosecution may use prior cases against the defendant as aggravation during a sentencing hearing even if those charges were dismissed.  Also, the State may use prior cases against the defendant even if the defendant was found not guilty (i.e., acquitted).

 

The prosecution may use evidence of criminal offenses committed by the defendant even if the defendant was not charged for those incidents. However, the defendant has a RIGHT to confront the witnesses against him in any prior criminal offense during the sentencing hearing, and to question those witnesses under oath in court.

 

Credit Against Fines

Any defendant who is sentenced to jail or to prison must receive $5 credit towards fines for each day that he or she spent in custody prior to sentencing. The only days that count for this credit are days in custody before the guilty plea or sentencing hearing, not those days that are projected as part of the court’s sentence.

 

Restitution

The court cannot require the defendant to pay restitution for offenses that were never charged. Also, the court cannot require the defendant to pay restitution to a third party (such as an insurance company that covered the damage). Rather, the restitution must be paid directly to the victim. But restitution should only apply where the victim has out-of-pocket costs. If an insurance company paid for the damage, the only amount of restitution that is proper is the amount actually paid by the victim, which is usually the deductible. Finally, the court can order a defendant to pay restitution while on parole (i.e., mandatory supervised release).

 

Treatment Alternatives to Street Crimes (TASC)

Defendants accused of felony offenses may be eligible for probation as opposed to a sentence of prison (DOC). Defendants have to meet several criteria before they are eligible for TASC probation. Moreover, if a defendant is on parole (MSR), the parole board must consent to TASC probation.

 

Boot Camp

Defendants who are charged with Class 1, 2, 3, and 4 felony offenses are eligible for boot camp (i.e., County Impact Incarceration). DuPage, Lake, and Will County judges sentence criminal defendants to boot camp in the Illinois Department of Corrections (DOC). However, Cook County has its own boot camp program. As of 2009, the wait time for getting into boot camp is approximately four (4) months. Boot camp is the preferred sentence with many judges in Cook County felony cases, but it is not automatic.

Violation of Probation (VOP) & Petition to Revoke (PTR)

If a defendant on felony probation commits a new offense, or violates the rules of probation (e.g., dirty drops), the judge can revoke probation and re-sentence the defendant. In Cook County, these proceedings are called violations of probation (VOPs), and in Lake County they are called petitions to revoke (PTRs). During sentencing, the court can sentence the defendant to ANY sentence that is authorized for that class of felony. The court may even impose an extended term prison (DOC) sentence. However, there is one limitation: if re-sentenced to jail or prison (DOC), the defendant has RIGHT to credit for all the time previously spent in custody.