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What is a 402 conference

Rockford, IL |

we're awaiting a trial and the defence called a 402 conference. i just want to know what it could be about

Attorney Answers 3


  1. It is where, with your permission, your lawyer, the State's Attorney and the Judge discuss your case out of your presence and determine possible dispositions.

    Wayne Brucar
    http://www.brucarandyetter.com/Wayne-Brucar.php

    Please understand that answering this doesn’t create an attorney/client relationship between us, and as hard as I try to answer your question well, it isn’t legal advice. No matter how much information you put into a question, the answers you are going to get are still going to be vague. It is in your interest to contact a lawyer, most of whom will do a free consultation. Even 15 minutes with a lawyer is going to produce a more specific answer to your problem.


  2. The state and defense must be in substantial compliance to request a 402 conference.

    It's a hearing on the entry of a guilty plea.

    Quoting Illinois Supreme Court Rule 402. ...

    Pleas of Guilty or Stipulations Sufficient to Convict

    In hearings on pleas of guilty, or in any case in which the defense offers to stipulate that the evidence is sufficient to convict, there must be substantial compliance with the following:

    (a) Admonitions to Defendant. The court shall not accept a plea of guilty or a stipulation that the evidence is sufficient to convict without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
    (1) the nature of the charge;

    (2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

    (3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

    (4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him; or that by stipulating the evidence is sufficient to convict, he waives the right to a trial by jury and the right to be confronted with any witnesses against him who have not testified.
    (b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.

    (c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.

    (d) Plea Discussions and Agreements. When there is a plea discussion or plea agreement, the following provisions, in addition to the preceding paragraphs of this rule, shall apply:
    (1) The trial judge shall not initiate plea discussions.

    (2) If a tentative plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement and the reasons therefor in advance of the tender of the plea. At the same time he may also receive, with the consent of the defendant, evidence in aggravation or mitigation. The judge may then indicate to the parties whether he will concur in the proposed disposition; and if he has not yet received evidence in aggravation or mitigation, he may indicate that his concurrence is conditional on that evidence being consistent with the representations made to him. If he has indicated his concurrence or conditional concurrence, he shall so state in open court at the time the agreement is stated as required by paragraph (b) of this rule. If the defendant thereupon pleads guilty, but the trial judge later withdraws his concurrence or conditional concurrence, he shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea of guilty. If the defendant thereupon withdraws his plea, the trial judge shall recuse himself.

    (3) If the parties have not sought or the trial judge has declined to give his concurrence or conditional concurrence to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the [more]


  3. It refers to Supreme Court Rule 402. It is a conference between the prosecutor, the defense attorney, and the judge. It is a settlement conference of sorts. The judge learns facts about the case and the defendant that he/she wouldn't ordinarily hear except at a trial. After listening to the facts and the aggravating and mitigating circumstances, the judge says what he/she would sentence the defendant to if he pleaded guilty. The defendant may still reject the offer by the judge and go to trial.

    I hope that my response was helpful and informative. However, my answer should not be considered or relied upon as a legal opinion, and no attorney-client relationship has been established. If you are interested in retaining an attorney for your matter, please contact me to discuss your situation further at www.MacNeilFirm.com

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