Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/mpc/p407.asc

Text File | 1993-08-01 | 43.5 KB | 990 lines

4.07.  Determination of Irresponsibility on Basis of Report;
Access to Defendant by Psychiatrist of His Own Choice; Form of
Expert Testimony When Issue of Responsibility Is Tried

    (1) If the report filed pursuant to Section 4.05 finds that
the defendant at the time of the criminal conduct charged
suffered from a mental disease or defect which substantially
impaired his capacity to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the
requirements of law, and the Court, after a hearing if a hearing
is requested by the prosecuting attorney or the defendant, is
satisfied that such impairment was sufficient to exclude
responsibility, the Court on motion of the defendant shall enter
judgment of acquittal on the ground of mental disease or defect
excluding responsibility.

    (2) When, notwithstanding the report filed pursuant to
Section 4.05, the defendant wishes to be examined by a qualified
psychiatrist or other expert of his own choice, such examiner
shall be permitted to have reasonable access to the defendant for
the purposes of such examination.

    (3) Upon the trial, the psychiatrists who reported pursuant
to Section 4.05 may be called as witnesses by the prosecution,
the defendant or the Court.  If the issue is being tried before a
jury, the jury may be informed that the psychiatrists were
designated by the Court or by the Superintendent of the _____
Hospital at the request of the Court, as the case may be.  If
called by the Court, the witness shall be subject to
cross-examination by the prosecution and by the defendant.  Both
the prosecution and the defendant may summon any other qualified
psychiatrist or other expert to testify, but no one who has not
examined the defendant shall be competent to testify to an expert
opinion with respect to the mental condition or responsibility of
the defendant, as distinguished from the validity of the
procedure followed by, or the general scientific propositions
stated by, another witness.

    (4) When a psychiatrist or other expert who has examined the
defendant testifies concerning his mental condition, he shall be
permitted to make a statement as to the nature of his
examination, his diagnosis of the mental condition of the
defendant at he time of the commission of the offense charged and
his opinion as to the extent, if any, to which the capacity of
the defendant to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements of law or
to have a particular state of mind which is an element of the
offense charged was impaired as a result of mental disease or
defect at that time.  He shall be permitted to make any
explanation reasonably serving to clarify his diagnosis and
opinion and may be cross-examined as to any matter bearing on his
competency or credibility or the validity of his diagnosis or
opinion.


4.08.  Legal Effect of Acquittal on the Ground of Mental Disease
or Defect Excluding Responsibility; Commitment; Release or
Discharge

    (1) When a defendant is acquitted on the ground of mental
disease or defect excluding responsibility, the Court shall order
him to be committed to the custody of the Commissioner of Mental
Hygiene [Public Health] to be placed in an appropriate
institution for custody, care and treatment.

    (2) If the Commissioner of Mental Hygiene [Public Health] is
of the view that a person committed to his custody, pursuant to
paragraph (1) of this Section, may be discharged or released on
condition without danger to himself or to others, he shall make
application for the discharge or release of such person in a
report to the Court by which such person was committed and shall
transmit a copy of such application and report to the prosecuting
attorney of the county [parish] from which the defendant was
committed.  The Court shall thereupon appoint at least two
qualified psychiatrists to examine such person and to report
within sixty days, or such longer period as the Court determines
to be necessary for the purpose, their opinion as to his mental
condition.  To facilitate such examination and the proceedings
thereon, the Court may cause such person to be confined in any
institution located near the place where the Court sits, which
may hereafter be designated by the Commissioner of Mental Hygiene
[Public Health] as suitable for the temporary detention of
irresponsible persons.

    (3) If the Court is satisfied by the report filed pursuant
to paragraph (2) of this Section and such testimony of the
reporting psychiatrists as the Court deems necessary that the
committed person may be discharged or released on condition
without danger to himself or others, the Court shall order his
discharge or his release on such conditions as the Court
determines to be necessary.  If the Court is not so satisfied, it
shall promptly order a hearing to determine whether such a person
may safely be discharged or released.  Any such hearing shall be
deemed a civil proceeding and the burden shall be upon the
committed person to prove that he may safely be discharged or
released.  According to the determination of the Court upon the
hearing, the committed person shall thereupon be discharged or
released on such conditions as the Court determines to be
necessary, or shall be recommitted to the custody of the
Commissioner of Mental Hygiene [Public Health], subject to
discharge or release only in accordance with the procedure
prescribed above for a first hearing.

    (4) If, within [five] years after the conditional release of
a committed person, the Court shall determine, after hearing
evidence, that for the safety of such person or for the safety of
others his conditional release should be revoked, the Court shall
forthwith order him to be recommitted to the Commissioner of
Mental Hygiene [Public Health], subject to discharge or release
only in accordance with the procedure prescribed above for the
first hearing.

    (5) A committed person may make application for his
discharge or release to the Court by which he was committed, and
the procedure to be followed upon such application shall be the
same as the prescribed above in the case of an application by the
Commissioner of Mental Hygiene [Public Health].  However, no such
application by a committed person need be considered until he has
been confined for a period of not less than [six months] from the
date of the order of commitment, and if the determination of the
Court be adverse to the application, such person shall not be
permitted to file a further application until [one year] has
elapsed from the date of any preceding hearing on an application
for his release or discharge.

4.09.  Statements for Purposes of Examination or Treatment
Inadmissible Except on Issue of Mental Condition

    A statement made by a person subjected to psychiatric
examination or treatment pursuant to Sections 4.05, 4.06 or 4.08
for the purposes of such examination or treatment shall not be
admissible in evidence against him in any criminal proceeding on
any issue other than that of his mental condition but it shall be
admissible upon that issue, whether or not it would otherwise be
deemed a privileged communication [, unless such statement
constitutes an admission of guilt of the crime charged].

4.10.  Immaturity Excluding Criminal Conviction; Transfer of
Proceedings to Juvenile Court

    (1) A person shall not be tried for or convicted of an
offense if:

    (a) at the time of the conduct charged to constitute the
offense he was less than sixteen years of age [, in which case
the Juvenile Court shall have exclusive jurisdiction*]; or

    (b) at the time of the conduct charged to constitute the
offense he was sixteen or seventeen years of age, unless;

    (i) the Juvenile Court has no jurisdiction over him, or,

    (ii) the Juvenile Court has entered an order waiving
jurisdiction and consenting to the institution of criminal
proceedings against him.

    (2) No court shall have jurisdiction to try or convict a
person of an offense if criminal proceedings against him are
barred by Subsection (1) of this Section.  When it appears that a
person charged with the commission of an offense may be of such
an age that criminal proceedings may be barred under Subsection
(1) of this Section, the Court shall hold a hearing thereon, and
the burden shall be on the prosecution to establish to the
satisfaction of the Court that the criminal proceeding is not
barred upon such grounds.  If the Court determines that the
proceeding is barred, custody of the person charged shall be
surrendered to the Juvenile Court, and the case, including all
papers and processes relating thereto, shall be transferred.

ARTICLE 5

INCHOATE CRIMES

5.01.  Criminal Attempt

    (1) Definition of Attempt.  A person is guilty of an attempt
to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:

    (a) purposely engages in conduct which would constitute the
crime if the attendant circumstances were as he believes them to
be; or

    (b) when causing a particular result is an element of the
crime, does or omits to do anything with the purpose of causing
or with the belief that it will cause such    result without
further conduct on his part; or

    (c) purposely does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission
constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime.

    (2) Conduct Which May Be Held Substantial Step Under
Subsection (1)(c).  Conduct shall not be held to constitute a
substantial step under Subsection (1)(c) of this Section unless
it is strongly corroborative of the actor's criminal purpose,
shall not be held insufficient as a matter of law:

    (a) lying in wait, searching for or following the
contemplated victim of the crime;

    (b) enticing or seeking to entice the contemplated victim of
the crime to go to the place contemplated for its commission;

    (c) reconnoitering the place contemplated for the commission
of the crime;

    (d) unlawful entry of a structure, vehicle or enclosure in
which it is contemplated that the crime will be committed;

    (e) possession of materials to be employed in the commission
of the crime, which are specially designed for such unlawful use
or which can serve no lawful purpose of the actor under the
circumstances;

    (f) possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place
contemplated for its commission, where such possession,
collection or fabrication serves no lawful purpose of the actor
under the circumstances;

    (g) soliciting an innocent agent to engage in conduct
constituting an element of the crime.

    (3) Conduct Designed to Aid Another in Commission of a
Crime.

A person who engages in conduct designed to aid another to commit
a crime which would establish his complicity under Section 2.06
if the crime were committed by such other person, is guilty of an
attempt to commit the crime, although the crime is not committed
or attempted by such other person.

    (4) Renunciation of Criminal Purpose.  When the actor's
conduct would otherwise constitute an attempt under Subsection
(1)(b) or (1)(c) of this Section, it is an affirmative defense
that he abandoned his effort to commit the crime or otherwise
prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.  The
establishment of such defense does not, however, affect the
liability of an accomplice who did not join in such abandonment
or prevention.

    Within the meaning of this Article, renunciation of criminal
purpose is not voluntary if it is motivated, in whole or in part,
by circumstances, not present or apparent at the inception of the
actor's course of conduct, which increase the probability of
detection or apprehension or which make more difficult the
accomplishment of the criminal purpose.  Renunciation is not
complete if it is motivated by a decision to postpone the
criminal conduct until a more advantageous time or to transfer
the criminal effort to another but similar objective or victim.

5.02.  Criminal Solicitation

    (1) Definition of Solicitation.  A person is guilty of
solicitation to commit a crime if with purpose of promoting or
facilitating its commission he commands, encourages or requests
another person to engage in specific conduct which would
establish his complicity in its commission or attempted
commission.
    (2) Uncommunicated Solicitation.  It is immaterial under
Subsection (1) of this Section that the actor fails to
communicate with the person he solicits to commit a crime if his
conduct was designed to effect such communication.

    (3) Renunciation of Criminal Purpose.  It is an affirmative
defense that the actor, after soliciting another person to commit
a crime, persuaded him not to do so or otherwise prevented the
commission of the crime, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.

5.03.  Criminal Conspiracy

    (1) Definition of Conspiracy.  A person is guilty of
conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:

    (a) agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or

    (b) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.

    (2) Scope of Conspiratorial Relationship.  If a person
guilty of conspiracy, as defined by Subsection (1) of this
Section, knows that a person with whom he conspires to commit a
crime has conspired with another person or persons to commit the
same crime, he is guilty of conspiring with such other person or
persons, whether or not he knows their identity, to commit such
crime.

    (3) Conspiracy With Multiple Criminal Objectives.  If a
person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the
object of the same agreement or continuous conspiratorial
relationship.

    (4) Joinder and Venue in Conspiracy Prosecutions.

    (a) Subject to the provisions of paragraph (b) of this
Subsection, two or more persons charged with criminal conspiracy
may be prosecuted jointly if:

    (i) they are charged with conspiring with one another; or

    (ii) the conspiracies alleged, whether they have the same or
different parties, are so related that they constitute different
aspects of a scheme of organized criminal conduct.

    (b) In any joint prosecution under paragraph (a) of this
Subsection:

    (i) no defendant shall be charged with conspiracy in any
county [parish or district] other than one in which he entered
into such conspiracy or in which an overt act pursuant to such
conspiracy was done by him or by a person with whom he conspired;
and

    (iii) the Court shall order a severance or take a special
verdict as to any defendant who so requests, if it deems it
necessary or appropriate to promote the fair determination of his
guilt or innocence, and shall take any other proper measures to
protect the fairness of the trial.

    (5) Overt Act.  No person may be convicted of conspiracy to
commit a crime, other than a felony of the first or second
degree, unless an overt act in pursuance of such conspiracy is
alleged and proved to have been done by him or by a person with
whom he conspired.

    (6) Renunciation of Criminal Purpose.  It is an affirmative
defense that he actor, after conspiring to commit a crime,
thwarted the success of the conspiracy, under circumstances
manifesting a complete and voluntary renunciation of his criminal
purpose.

    (7) Duration of Conspiracy.  For purposes of Section
1.06(4):

    (a) conspiracy is a continuing course of conduct which
terminates when the crime or crimes which are its object are
committed or the agreement that they be committed is abandoned by
the defendant and by those with whom he conspired; and

    (b) such abandonment is presumed if neither the defendant
nor anyone with whom he conspired does any overt act in pursuance
of the conspiracy during the applicable period of limitation; and

    (c) if an individual abandons the agreement, the conspiracy
is terminated as to him only if and when he advises those with
whom he conspired of his abandonment or he informs the law
enforcement authorities of the existence of the conspiracy and of
his participation therein.

5.04.  Incapacity, Irresponsibility or Immunity of Party to
Solicitation or Conspiracy

    (1) Except as provided in Subsection (2) of this Section, it
is immaterial to the liability of a person who solicits or
conspires with another to commit a crime that:

    (a) he or the person whom he solicits or with whom he
conspires does not occupy a particular position or have a
particular characteristic which is an element of such crime, if
he believes that one of them does; or

    (b) the person whom he solicits or with whom he conspires is
irresponsible or has an immunity to prosecution or conviction for
he commission of the crime.

    (2) It is a defense to a charge of solicitation or
conspiracy to commit a crime that if the criminal object were
achieved, the actor would not be guilty of a crime under the law
defining the offense or as an accomplice under Section 2.06(5) or
2.06(6)(a) or (b).

5.05.  Grading of Criminal Attempt, Solicitation and Conspiracy;
Mitigation in Cases of Lesser Danger; Multiple Convictions Barred

    (1) Grading.  Except as otherwise provided in this Section,
attempt, solicitation and conspiracy are crimes of the same grade
and degree as the most serious offense which is attempted or
solicited or is an object of the conspiracy.  An attempt,
solicitation or conspiracy to commit a [capital crime or a]
felony of the first degree is a felony of the second degree.

    (2) Mitigation.  If the particular conduct charged to
constitute a criminal attempt, solicitation or conspiracy is so
inherently unlikely to result or culminate in the commission of a
crime that neither such conduct nor the actor presents a public
danger warranting the grading of such offense under this Section,
the Court shall exercise its power under Section 6.12 to enter
judgment and impose sentence for a crime of lower grade or degree
or, in extreme cases, may dismiss the prosecution.

    (3) Multiple Convictions.  A person may not be convicted of
more than one offense defined by this Article for conduct
designed to commit or to culminate in the commission of the same
crime.

5.06.  Possessing Instruments of Crime; Weapons

    (1) Criminal Instruments Generally.  A person commits a
misdemeanor if he possesses any instrument of crime with purpose
to employ it criminally.  "Instrument of crime" means:

    (a) anything specially made or specially adapted for
criminal use; or

    (b) anything commonly used for criminal purposes and
possessed by the actor under circumstances which do not negative
unlawful purpose.

    (2) Presumption of Criminal Purpose from Possession of
Weapon.  If a person possesses a firearm or other weapon on or
about his person, in a vehicle occupied by him, or otherwise
readily available for use, it is presumed that he had the purpose
to employ it criminally, unless:

    (a) the weapon is possessed in the actor's home or place of
business;

    (b) the actor is licensed or otherwise authorized by law to
possess such weapon; or

    (c) the weapon is a type commonly used in lawful sport.

"Weapon" means anything readily capable of lethal use and
possessed under circumstances not manifestly appropriate for
lawful uses which it may have; the term includes a firearm which
is not loaded or lacks a clip or other component to render it
immediately operable, and components which can readily be
assembled into a weapon.

    (3) Presumptions as to Possession of Criminal Instruments in
Automobiles.  Where a weapon or other instrument of crime is
found in an automobile, it shall be presumed to be in the
possession of the occupant if there is but one.  If there is more
than one occupant, it shall be presumed to be in the possession
of all, except under the following circumstances:

    (a) where it is found upon the person of one of the
occupants;

    (b) where the automobile is not a stolen one and the weapon
or instrument is found out of view in a glove compartment, car
trunk, or other enclosed customary depository, in which case it
shall be presumed to be in the possession of the occupant or
occupants who own or have authority to operate the automobile;

    (c) in the case of a taxicab, a weapon or instrument found
in the passengers' portion of the vehicle shall be presumed to be
in the possession of all the passengers, it there are any, and if
not, in the possession of the driver.

5.07.  Prohibited Offensive Weapons

    A person commits a misdemeanor if, except as authorized by
law, he makes, repairs, sells, or otherwise deals in, uses, or
possesses any offensive weapon.  "Offensive weapon" means any
bomb, machine gun, sawed-off shotgun, firearm specially made or
specially adapted for concealment or silent discharge, any
blackjack, sandbag, metal knuckles, dagger, or other implement
for the infliction of serious bodily injury which serves no
common lawful purpose.  It is a defense under this Section for
the defendant to prove by a preponderance of evidence that he
possessed or dealt with the weapon solely as a curio or in a
dramatic performance, or that he possessed it briefly in
consequence of having found it or taken it from an aggressor, or
under circumstances similarly negativing any purpose or
likelihood that the weapon would be used unlawfully.  The
presumptions provided in Section 5.06(3) are applicable to
prosecutions under this Section.

ARTICLE 6

AUTHORIZED DISPOSITION OF OFFENDERS

6.01.  Degrees of Felonies

    (1) Felonies defined by this Code are classified, for the
purpose of sentence, into three degrees, as follows:

    (a) felonies of the first degree;

    (b) felonies of the second degree;

    (c) felonies of the third degree;

    A felony is of the first or second degree when it is so
designated by the Code.  A crime declared to be a felony, without
specification of degree, is of the third degree.

    (2) Notwithstanding any other provision of law, a felony
defined by any statute of this State other than this Code shall
constitute for the purpose of sentence a felony of the third
degree.

6.02.  Sentence in Accordance with Code; Authorized Dispositions

    (1) No person convicted of an offense shall be sentenced
otherwise than in accordance with this Article.

    [(2) The Court shall sentence a person who has been
convicted of murder to death or imprisonment, in accordance with
Section 210.6.]

    (3) Except as provided in Subsection (2) of this Section and
subject to the applicable provisions of the Code, the Court may
suspend the imposition of sentence on a person who has been
convicted of a crime, may order him to be committed in lieu of
sentence, in accordance with Section 6.13, or may sentence him as
follows:

    (a) to pay a fine authorized by Section 6.03; or
    (b) to be placed on probation [, and, in the case of a
person convicted of a felony or misdemeanor to imprisonment for a
term fixed by the Court not exceeding thirty days to be served as
a condition of probation]; or

    (c) to imprisonment for a term authorized by Sections 6.05,
6.06, 6.07, 6.08, 6.09, or 7.06; or

    (d) to fine and probation or fine and imprisonment, but not
to probation and imprisonment [, except as authorized in
paragraph (b) of this Subsection].

    (4) The Court may suspend the imposition of sentence on a
person who has been convicted of a violation or may sentence him
to pay a fine authorized by Section 6.03.

    (5) This Article does not deprive the Court of any authority
conferred by law to decree a forfeiture of property, suspend or
cancel a license, remove a person from office, or impose any
other civil penalty.  Such a judgement or order may be included
in the sentence.

6.03.  Fines

    A person who has been convicted of an offense may be
sentenced to pay a fine not exceeding;

    (1) $10,000, when the conviction is of a felony of the first
or second degree;

    (2) $5,000, when the conviction is of a felony of the third
degree;

    (3) $1,000, when the conviction is of a misdemeanor;

    (4) $500, when the conviction is of a petty misdemeanor or a
violation;

    (5) any higher amount equal to double the pecuniary gain
derived from the offense by the offender;

    (6) any higher amount specifically authorized by statute.

6.04.  Penalties Against Corporations and Unincorporated
Association; Forfeiture of Corporate Charter or Revocation of
Certificate Authorizing Foreign Corporation to Do Business in the
State

    (1) The Court may suspend the sentence of a corporation or
an unincorporated association which has been convicted of an
offense or may sentence it to pay a fine authorized by Section
6.03.

    (2) (a) The [prosecuting attorney] is authorized to
institute civil proceedings in the appropriate court of general
jurisdiction to forfeit the charter of a corporation organized
under the laws of this State or to revoke the certificate
authorizing a foreign corporation to conduct business in this
State.  The Court may order the charter forfeited or the
certificate revoked upon finding (i) that the board of directors
or a high managerial agent acting in behalf of the corporation
has, in conducting the corporation's affairs, purposely engaged
in a persistent course of criminal conduct and (ii) that for the
prevention of future criminal conduct of the same character, the
public interest requires the charter of the corporation to be
forfeited and the corporation to be dissolved or the certificate
to be revoked.

    (b) When a corporation is convicted of a crime or a high
managerial agent of a corporation, as defined in Section 2.07, is
convicted of a crime committed in the conduct of the affairs of
the corporation, the Court, in sentencing the corporation or the
agent, may direct the [prosecuting attorney] to institute
proceedings authorized by paragraph (a) of this Subsection.

    (c) The proceedings authorized by paragraph (a) of this
Subsection shall be conducted in accordance with the procedures
authorized by law for the involuntary dissolution of corporation
or the revocation of the certificate authorizing a foreign
corporation to conduct business in this State.  Such proceedings
shall be deemed additional to any other proceedings authorized by
law for the purpose of forfeiting the charter of a corporation or
revoking the certificate of a foreign corporation.

6.05.  Young Adult Offenders

    (1) Specialized Correctional Treatment.  A young adult
offender is a person convicted of a crime who, at the time of
sentencing, is sixteen but less than twenty-two years of age.  A
young adult offender who is sentenced to a term of imprisonment
which may exceed thirty days [ alternatives:  (1) ninety days;
(2) one year] shall be committed to the custody of the Division
of Young Adult Correction of the Department of Correction, and
shall receive, as far as practicable, such special and
individualized correctional and rehabilitative treatment as may
be appropriate to his needs.

    (2) Special Term.  A young adult offender convicted of a
felony may, in lieu of any other sentence of imprisonment
authorized by this Article, be sentenced to a special term of
imprisonment without a minimum and with a maximum of four years,
regardless of the degree of the felony involved, if the Court is
of the opinion that such special term is adequate for his
correction and rehabilitation and will not jeopardize the
protection of the public.

    [(3) Removal of Disabilities; Vacation of Conviction.

    (a) In sentencing a young adult offender to the special term
provided by this Section or to any sentence other than one of
imprisonment, the Court may order that so long as he is not
convicted of another felony, the judgment shall not constitute a
conviction for the purposes of any disqualification or disability
imposed by law upon conviction of a crime.

    (b) When any young adult offender is unconditionally
discharged from probation or parole before the expiration of the
maximum term thereof, the Court may enter an order vacating the
judgment of conviction.]

    [(4) Commitment for Observation.  If, after pre-sentence
investigation, the Court desires additional information
concerning a young adult offender before imposing sentence, it
may order that he be omitted, for a period not exceeding ninety
days, to the custody of the Division of Young Adult Correction of
the Department of Correction for observation and the study at an
appropriate reception or classification center.  Such Division of
the Department of Correction and the [Young Adult Division of
the] Board of Parole shall advise the Court of their findings and
recommendations on or before the expiration of such ninety-day
period.]

6.06.  Sentence of Imprisonment for Felony; Ordinary Terms

    A person who has been convicted of a felony may be sentenced
to imprisonment, as follows:

    (1) in the case of a felony of the first degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than ten years, and the maximum of which shall
be life imprisonment;

    (2) in the case of a felony of the second degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year no more than three years, and the maximum of which shall
be ten years;

    (3) in the case of a felony of the third degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than two years, and the maximum of which shall
be five years.

Alternate Section 6.06.  Sentence of Imprisonment for Felony;
Ordinary Terms

    A person who has been convicted of a felony may be sentenced
to imprisonment, as follows:

    (1) in the case of a felony of the first degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than ten years, and the maximum at not more
than twenty years or at life imprisonment;

    (2) in the case of a felony of the second degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than three years, and the maximum at not more
than ten years;

    (3) in the case of a felony of the third degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than two years, and the maximum at not more
than five years.

    No sentence shall be imposed under this Section of which the
minimum is longer than one-half the maximum, or, when the maximum
is life imprisonment, longer than ten years.

6.07.  Sentence of Imprisonment for Felony; Extended Terms

    In the cases designated in Section 7.03, a person who has
been convicted of a felony may be sentenced to an extended term
of imprisonment, as follows:

    (1) in the case of a felony of the first degree, for a term
the minimum of which shall be fixed by the Court at not less than
five years nor more than ten years, and the maximum of which
shall be life imprisonment;

    (2) in the case of a felony of the second degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than five years, and the maximum of which shall
be fixed by the Court at not less than ten nor more than twenty
years;

    (3) in the case of a felony of the third degree, for a term
the minimum of which shall be fixed by the Court at not less than
one year nor more than three years, and the maximum of which
shall be fixed by the Court at not less than five nor more than
ten years.

6.08.  Sentence of Imprisonment for Misdemeanors and Petty
Misdemeanors and Petty Misdemeanors; Ordinary Terms

     A person who has been convicted of a misdemeanor or a petty
misdemeanor may be sentenced to imprisonment for a definite term
which shall be fixed by the Court and shall not exceed one year
in the case of a misdemeanor or thirty days in the case of a
petty misdemeanor.

6.09.  Sentence of Imprisonment for Misdemeanors and Petty
Misdemeanors; Extended Terms

    (1) In the cases designated in Section 7.04, a person who
has been convicted of a misdemeanor or a petty misdemeanor may be
sentenced to an extended term of imprisonment, as follows:

    (a) in the case of a misdemeanor, for a term the minimum of
which shall be fixed by the Court at not more than one year and
the maximum of which shall be three years;

    (b) in the case of a petty misdemeanor, for a term the
minimum of which shall be fixed by the Court at not more than six
months and the maximum of which shall be two years.

    (2) No such sentence for an extended term shall be imposed
unless:

    (a) the Director of Correction has certified that there is
an institution in the Department of Correction, or in a county,
city [or other appropriate political subdivision of the State]
which is appropriate for the detention and correctional treatment
of such misdemeanant or petty misdemeanant, and that such
institution is available to receive such commitments; and

    (b) the [Board of Parole] [Parole Administrator] has
certified that the Board of Parole is able to visit such
institution and to assume responsibility for the release of such
prisoners on parole and for their parole supervision.

6.10.  First Release of All Offenders on Parole; Sentence of
Imprisonment Includes Separate Parole Term; Length of Parole
Term; Length of Recommitment and Reparole After Revocation of
Parole; Final Unconditional Release

    (1) First Release of All Offenders on Parole.  An offender
sentenced to an indefinite term of imprisonment in excess of one
year under Section 6.05, 6.06, 6.07, 6.09, or 7.06 includes as a
separate portion of the sentence a term of parole or of
recommitment for violation of the conditions of parole which
governs the duration of parole or recommitment after the
offender's first conditional release on parole.  The minimum of
such term is one year and the maximum is five years, unless the
sentence was imposed under Section 6.05(2) or Section 6.09, in
which case the maximum is two years.

    (3) Length of Recommitment and Reparole After Revocation of
Parole.  If an offender is recommitted upon revocation of his
parole, the term of further imprisonment upon such recommitment
and of any subsequent reparole or recommitment under the same
sentence shall be fixed by the Board of Parole but shall not
exceed in aggregate length the unserved balance of the maximum
parole term provided by Subsection (2) of this Section.

    (4) Final Unconditional Release.  When the maximum of his
parole term has expired or he has been sooner discharged from
parole under Section 305.12, an offender shall be deemed to have
served his sentence and shall be released unconditionally.

6.11.  Place of Imprisonment

    (1) When a person is sentenced to imprisonment for an
indefinite term with a maximum in excess of one year, the Court
shall commit him to the custody of the Department of Correction
[or other single department or agency] for the term of his
sentence and until released in accordance with law.

    (2) When a person is sentenced to imprisonment for a
definite term, the Court shall designate the institution or
agency to which he is committed for the term of his sentence and
until released in accordance with law.

6.12.  Reduction of Conviction by Court to Lesser Degree of
Felony or to Misdemeanor

    If, when a person has been convicted of a felony, the Court,
having regard to the nature and circumstances of the crime and to
the history and character of the defendant, is of the view that
it would be unduly harsh to sentence the offender in accordance
with the Code, the Court may enter judgment of conviction for a
lesser degree of felony or for a misdemeanor and impose sentence
accordingly.

6.13.  Civil Commitment in Lieu of Prosecution or of Sentence

    (1) When a person prosecuted for a [felony of the third
degree,] misdemeanor or petty misdemeanor is a chronic alcoholic,
narcotic addict[or prostitute] or person suffering from mental
abnormality and the Court is authorized by law to order the civil
commitment of such person to a hospital or other institution for
medical psychiatric or other rehabilitative treatment, the Court
may order such commitment and dismiss the prosecution.  The order
of commitment may be made after conviction, in which event the
Court may set aside the verdict or judgment of conviction and
dismiss prosecution.

    (2) The Court shall not make an order under Subsection (1)
of this Section unless it is of the view that it will
substantially further the rehabilitation of the defendant and
will not jeopardize the protection of the public.

ARTICLE 7
AUTHORITY OF COURT IN SENTENCING

7.01.  Criteria for Withholding Sentence of Imprisonment and for
Placing Defendant on Probation

    (1) The Court shall deal with a person who has been
convicted of a crime without imposing sentence of imprisonment
unless, having regard to the nature and circumstances of the
crime and the history, character and condition of the defendant,
it is of the opinion that his imprisonment is necessary for
protection of the public because:

    (a) there is undue risk that during the period of a
suspended sentence or probation the defendant will commit another
crime; or

    (b) the defendant is in need of correctional treatment that
can be provided most effectively by his commitment to an
institution; or

    (c) a lesser sentence will depreciate the seriousness of the
defendant's crime.

    (2) The following grounds, while not controlling the
discretion of the Court, shall be accorded weight in favor of
withholding sentence of imprisonment:

    (a) the defendant's criminal conduct neither caused nor
threatened serious harm;

    (b) the defendant did not contemplate that his criminal
conduct would cause or threaten serious harm;

    (d) there were substantial grounds tending to excuse or
justify the defendant's criminal conduct, though failing to
establish a defense;

    (e) the victim of the defendant's criminal conduct induced
or facilitated its commission;

    (f) the defendant has compensated or will compensate the
victim of his criminal conduct for the damage or injury that he
sustained;

    (g) the defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial
period of time before the commission of the present crime;

    (h) the defendant's criminal conduct was the result of
circumstances unlikely to recur;

    (i) the character and attitudes of the defendant indicate
that he is unlikely to commit another crime;

    (j) the defendant is particularly likely to respond
affirmatively to probationary treatment;

    (k) the imprisonment of the defendant would entail excessive
hardship to himself or his dependents.

    (3) When a person who has been convicted of a crime is not
sentenced to imprisonment, the Court shall place him on probation
if he is in need of the supervision, guidance, assistance or
direction that the probation service can provide.

7.02.  Criteria for Imposing Fines

    (1) The Court shall not sentence a defendant only to pay a
fine, when any other disposition is authorized by law, unless
having regard to the nature and circumstances of the crime and to
the history and character of he defendant, it is of the opinion
that the fine alone suffices for protection of the public.

    (2) The Court shall not sentence a defendant to pay a fine
in addition to a sentence of imprisonment or probation unless;

    (a) the defendant has derived a pecuniary gain from the
crime; or

    (b) the Court is of opinion that a fine is specially adapted
to deterrence of the crime involved or to the correction of the
offender.

    (3) The Court shall not sentence a defendant to pay a fine
unless:

    (a) the defendant is or will be able to pay the fine; and

    (b) the fine will not prevent the defendant from making
restitution or reparation to the victim of the crime.

    (4) In determining the amount and method of payment of a
fine, the Court shall take into account the financial resources
of the defendant and the nature of the burden that its payment
will impose.

7.03.  Criteria for Sentence of Extended Term of Imprisonment;
Felonies

    The Court may sentence a person who has been convicted of a
felony to an extended term of imprisonment if it finds one or
more of the grounds specified in this Section.  The finding of he
court shall be incorporated in the record.

    (1) The defendant is a persistent offender whose commitment
for an extended term is necessary for protection of the public.

    The Court shall not make such a finding unless the defendant
is over twenty-one years of age and has previously been convicted
of two felonies or of one felony and two misdemeanors, committed
at different times when he was over [insert Juvenile Court age]
years of age.

    (2) The defendant is a professional criminal whose
commitment for an extended term is necessary for protection of
the public.

    The Court shall not make such a finding unless the defendant
is over twenty-one years of age and:

    (a) the circumstances of the crime show that he defendant
has knowingly devoted himself to criminal activity as a major
source of livelihood; or

    (b) the defendant has substantial income or resources not
explained to be derived from a source other than a legalone;

    (3) The defendant is a dangerous, mentally abnormal person
whose commitment for an extended term is necessary for protection
of the public.

    The Court shall not make such a finding unless the defendant
has been subjected to a psychiatric examination resulting in the
conclusions that his mental condition is gravely abnormal; that
his criminal conduct has been characterized by a pattern of
repetitive or compulsive behavior or by persistent aggressive
behavior with heedless indifference to consequences; and that
such condition makes him a serious danger to others.

    (4) The defendant is a multiple offender whose criminality
was so extensive that a sentence of imprisonment for an extended
term is warranted.

    The Court shall not make such a finding unless:

    (a) the defendant is being sentenced for two or more
felonies, or is already under sentence of imprisonment for
felony, and the sentences of imprisonment involved will run
concurrently under Section 7.06; or

    (b) the defendant admits in open court the commission of one
or more other felonies and asks that they be taken into account
when he is sentenced; and

    (c) the longest sentences of imprisonment authorized for
each of the defendant's crimes, including admitted crimes taken
into account, if made to run consecutively would exceed in length
the minimum and maximum of the extended term imposed.