ILCS » Chapter 730 · Act 5
Illinois Compiled Statutes

730 ILCS 5/5-5-4 (2026)

Resentences

✓ current as of May 2026
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(730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
    Sec. 5-5-4. Resentences.
    (a) Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing. If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the range otherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial.
    (b) If a conviction or sentence has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge, 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 Illinois 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 defendant has prior criminal convictions.
    All records sealed by the Illinois 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.
    (c) If a conviction has been vacated as a result of a claim of actual innocence based on newly discovered evidence made under Section 122-1 of the Code of Criminal Procedure of 1963 or Section 2-1401 of the Code of Civil Procedure, and the provisions of paragraphs (1) and (2) of subsection (g) of Section 2-702 of the Code of Civil Procedure are otherwise satisfied, the court shall enter an order for a certificate of innocence and an order expunging the conviction for which the petitioner has been determined to be innocent as provided in subsection (h) of Section 2-702 of the Code of Civil Procedure.
(Source: P.A. 102-538, eff. 8-20-21.)

    
Notes of Decisions
Cited in 66 cases (21 in the last 5 years), 1994–2026 · leading case: People v. Fikara, 802 N.E.2d 260 (Ill. App. Ct. 2003).
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People v. Fikara, 802 N.E.2d 260 (Ill. App. Ct. 2003). · cites it 5× “trial on the basis of "newly discovered chlamydia" evidence that completely exonerates him of the charged offenses; (2) the trial court erred in its determination that trial counsel was not ineffective; (3) the trial court erred in resentencing him to an extended term without…”
People v. Strawbridge, 935 N.E.2d 1104 (Ill. App. Ct. 2010). · cites it 4× “Defendant relies upon section 5-5-4 of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-4 (West 2008)), which provides, in relevant part, as follows: "Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a…”
People v. Harris, 853 N.E.2d 912 (Ill. App. Ct. 2006). · cites it 4× “Additionally, we note our disagreement with Justice Cook's special concurrence, in which he finds that on remand, the trial court may not increase defendant's total sentence from 15 to 18 years.”
People v. Coty, 2020 IL 123972 (Ill. 2020). “- 19 - ¶ 48 Section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West 2012)) provides: “Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a…”
People v. Floyd F. (In Re N.G.), 2018 IL 121939 (Ill. 2018). “Expungement is the procedure used to remove the conviction from the defendant's record after a conviction has been vacated.”
People v. Garcia, 688 N.E.2d 57 (Ill. 1997). · cites it 2× “615(b)) which describes the powers of a reviewing court; (2) section 5-8-1(c) of the Unified Code of Corrections which governs a defendant's motion to reduce a sentence; (3) the statute on resentencing (730 ILCS 5/5-5-4 (West 1992)); and (4) defendants' federal due process…”
People v. Howard, 865 N.E.2d 472 (Ill. App. Ct. 2007). · cites it 4× “730 ILCS 5/5-5-4(b) (West 2004). Therein, the General Assembly provided: "If a conviction or sentence has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge,…”
People v. Howard, 909 N.E.2d 724 (Ill. 2009). · cites it 2× “) 730 ILCS 5/5-5-4(b) (West 2004). The language of these sections lacks any reference to the ability of a trial court to "deny" such a petition.”
People v. Moore, 2020 IL App (1st) 190435 (Ill. App. Ct. 2020). “2(b)(6); 730 ILCS 5/5-5-4(b) (West 2018). ¶ 45 We express no opinion on whether petitioner would have a viable claim before the court of claims or alternative avenues for expungement, as those questions are not before us.”
People v. Morris, 848 N.E.2d 1000 (Ill. 2006). · cites it 2× “In addition to arguing that his clemency order was, in substance, a partial pardon, defendant also contended in his motion that the imposition of the death penalty on retrial would violate his due process rights and the statutory prohibition against increasing a sentence on…”
People v. Hestand, 838 N.E.2d 318 (Ill. App. Ct. 2005). “The State generally does not have the right to appeal or cross-appeal in a criminal case.”
In re N.G., 2018 IL 121939 (Ill. 2019). “2(b)(6) (West 2016); 730 ILCS 5/5-5-4(b) (West 2016). Thus, it is the necessary capstone in providing a remedy to those who were prosecuted under a facially unconstitutional statute.”
Show all 66 citing cases →
— 730 ILCS 5/5-5-4(a) — 34 cases
People v. Coty, 2020 IL 123972 (Ill. 2020). “- 19 - ¶ 48 Section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West 2012)) provides: “Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a…”
People v. Morris, 848 N.E.2d 1000 (Ill. 2006). “In addition to arguing that his clemency order was, in substance, a partial pardon, defendant also contended in his motion that the imposition of the death penalty on retrial would violate his due process rights and the statutory prohibition against increasing a sentence on…”
People v. Mischke, 2018 IL App (2d) 160472 (Ill. App. Ct. 2018).
People v. Cole, 2016 IL App (1st) 141664 (Ill. App. Ct. 2016).
People v. Harris, 853 N.E.2d 912 (Ill. App. Ct. 2006). “Additionally, we note our disagreement with Justice Cook's special concurrence, in which he finds that on remand, the trial court may not increase defendant's total sentence from 15 to 18 years.”
— 730 ILCS 5/5-5-4(b) — 9 cases
People v. Floyd F. (In Re N.G.), 2018 IL 121939 (Ill. 2018). “Expungement is the procedure used to remove the conviction from the defendant's record after a conviction has been vacated.”
People v. Howard, 865 N.E.2d 472 (Ill. App. Ct. 2007). “730 ILCS 5/5-5-4(b) (West 2004). Therein, the General Assembly provided: "If a conviction or sentence has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge,…”
People v. Howard, 909 N.E.2d 724 (Ill. 2009). “) 730 ILCS 5/5-5-4(b) (West 2004). The language of these sections lacks any reference to the ability of a trial court to "deny" such a petition.”
People v. Moore, 2020 IL App (1st) 190435 (Ill. App. Ct. 2020). “2(b)(6); 730 ILCS 5/5-5-4(b) (West 2018). ¶ 45 We express no opinion on whether petitioner would have a viable claim before the court of claims or alternative avenues for expungement, as those questions are not before us.”
In re N.G., 2018 IL 121939 (Ill. 2019). “2(b)(6) (West 2016); 730 ILCS 5/5-5-4(b) (West 2016). Thus, it is the necessary capstone in providing a remedy to those who were prosecuted under a facially unconstitutional statute.”
— 730 ILCS 5/5-5-4(c) — 1 case
People v. Drew, 2026 IL App (1st) 251647 (Ill. App. Ct. 2026).
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