Sen. Toi W. Hutchinson

Filed: 5/18/2011





09700HB1689sam002LRB097 08260 RLC 55810 a


2    AMENDMENT NO. ______. Amend House Bill 1689, AS AMENDED, by
3replacing everything after the enacting clause with the
5    "Section 5. The Criminal Code of 1961 is amended by
6changing Section 17-56 as follows:
7    (720 ILCS 5/17-56)  (was 720 ILCS 5/16-1.3)
8    (This Section may contain text from a Public Act with a
9delayed effective date)
10    Sec. 17-56. Financial exploitation of an elderly person or
11a person with a disability.
12    (a) A person commits financial exploitation of an elderly
13person or a person with a disability when he or she stands in a
14position of trust or confidence with the elderly person or a
15person with a disability and he or she knowingly and by
16deception or intimidation obtains control over the property of



09700HB1689sam002- 2 -LRB097 08260 RLC 55810 a

1an elderly person or a person with a disability or illegally
2uses the assets or resources of an elderly person or a person
3with a disability.
4    (b) Sentence. Financial exploitation of an elderly person
5or a person with a disability is: (1) a Class 4 felony if the
6value of the property is $300 or less, (2) a Class 3 felony if
7the value of the property is more than $300 but less than
8$5,000, (3) a Class 2 felony if the value of the property is
9$5,000 or more but less than $50,000 $100,000, and (4) a Class
101 felony if the value of the property is $50,000 $100,000 or
11more or if the elderly person is over 70 years of age and the
12value of the property is $15,000 or more or if the elderly
13person is 80 years of age or older and the value of the
14property is $5,000 or more.
15    (c) For purposes of this Section:
16        (1) "Elderly person" means a person 60 years of age or
17    older.
18        (2) "Person with a disability" means a person who
19    suffers from a physical or mental impairment resulting from
20    disease, injury, functional disorder or congenital
21    condition that impairs the individual's mental or physical
22    ability to independently manage his or her property or
23    financial resources, or both.
24        (3) "Intimidation" means the communication to an
25    elderly person or a person with a disability that he or she
26    shall be deprived of food and nutrition, shelter,



09700HB1689sam002- 3 -LRB097 08260 RLC 55810 a

1    prescribed medication or medical care and treatment.
2        (4) "Deception" means, in addition to its meaning as
3    defined in Section 15-4 of this Code, a misrepresentation
4    or concealment of material fact relating to the terms of a
5    contract or agreement entered into with the elderly person
6    or person with a disability or to the existing or
7    pre-existing condition of any of the property involved in
8    such contract or agreement; or the use or employment of any
9    misrepresentation, false pretense or false promise in
10    order to induce, encourage or solicit the elderly person or
11    person with a disability to enter into a contract or
12    agreement.
13    The illegal use of the assets or resources of an elderly
14person or a person with a disability includes, but is not
15limited to, the misappropriation of those assets or resources
16by undue influence, breach of a fiduciary relationship, fraud,
17deception, extortion, or use of the assets or resources
18contrary to law.
19    A person stands in a position of trust and confidence with
20an elderly person or person with a disability when he (i) is a
21parent, spouse, adult child or other relative by blood or
22marriage of the elderly person or person with a disability,
23(ii) is a joint tenant or tenant in common with the elderly
24person or person with a disability, (iii) has a legal or
25fiduciary relationship with the elderly person or person with a
26disability, or (iv) is a financial planning or investment



09700HB1689sam002- 4 -LRB097 08260 RLC 55810 a

2    (d) Limitations. Nothing in this Section shall be construed
3to limit the remedies available to the victim under the
4Illinois Domestic Violence Act of 1986.
5    (e) Good faith efforts. Nothing in this Section shall be
6construed to impose criminal liability on a person who has made
7a good faith effort to assist the elderly person or person with
8a disability in the management of his or her property, but
9through no fault of his or her own has been unable to provide
10such assistance.
11    (f) Not a defense. It shall not be a defense to financial
12exploitation of an elderly person or person with a disability
13that the accused reasonably believed that the victim was not an
14elderly person or person with a disability.
15    (g) Civil Liability. A person who is charged by information
16or indictment with the offense of financial exploitation of an
17elderly person or person with a disability and who fails or
18refuses to return the victim's property within 60 days
19following a written demand from the victim or the victim's
20legal representative shall be liable to the victim or to the
21estate of the victim in damages of treble the amount of the
22value of the property obtained, plus reasonable attorney fees
23and court costs. The burden of proof that the defendant
24unlawfully obtained the victim's property shall be by a
25preponderance of the evidence. This subsection shall be
26operative whether or not the defendant has been convicted of



09700HB1689sam002- 5 -LRB097 08260 RLC 55810 a

1the offense.
2(Source: P.A. 95-798, eff. 1-1-09; 96-1551, eff. 7-1-11.)
3    Section 10. The Unified Code of Corrections is amended by
4changing Section 5-5-6 as follows:
5    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
6    (Text of Section after amendment by P.A. 96-1551)
7    Sec. 5-5-6. In all convictions for offenses in violation of
8the Criminal Code of 1961 or of Section 11-501 of the Illinois
9Vehicle Code in which the person received any injury to his or
10her person or damage to his or her real or personal property as
11a result of the criminal act of the defendant, the court shall
12order restitution as provided in this Section. In all other
13cases, except cases in which restitution is required under this
14Section, the court must at the sentence hearing determine
15whether restitution is an appropriate sentence to be imposed on
16each defendant convicted of an offense. If the court determines
17that an order directing the offender to make restitution is
18appropriate, the offender may be sentenced to make restitution.
19The court may consider restitution an appropriate sentence to
20be imposed on each defendant convicted of an offense in
21addition to a sentence of imprisonment. The sentence of the
22defendant to a term of imprisonment is not a mitigating factor
23that prevents the court from ordering the defendant to pay
24restitution. If the offender is sentenced to make restitution



09700HB1689sam002- 6 -LRB097 08260 RLC 55810 a

1the Court shall determine the restitution as hereinafter set
3        (a) At the sentence hearing, the court shall determine
4    whether the property may be restored in kind to the
5    possession of the owner or the person entitled to
6    possession thereof; or whether the defendant is possessed
7    of sufficient skill to repair and restore property damaged;
8    or whether the defendant should be required to make
9    restitution in cash, for out-of-pocket expenses, damages,
10    losses, or injuries found to have been proximately caused
11    by the conduct of the defendant or another for whom the
12    defendant is legally accountable under the provisions of
13    Article V of the Criminal Code of 1961.
14        (b) In fixing the amount of restitution to be paid in
15    cash, the court shall allow credit for property returned in
16    kind, for property damages ordered to be repaired by the
17    defendant, and for property ordered to be restored by the
18    defendant; and after granting the credit, the court shall
19    assess the actual out-of-pocket expenses, losses, damages,
20    and injuries suffered by the victim named in the charge and
21    any other victims who may also have suffered out-of-pocket
22    expenses, losses, damages, and injuries proximately caused
23    by the same criminal conduct of the defendant, and
24    insurance carriers who have indemnified the named victim or
25    other victims for the out-of-pocket expenses, losses,
26    damages, or injuries, provided that in no event shall



09700HB1689sam002- 7 -LRB097 08260 RLC 55810 a

1    restitution be ordered to be paid on account of pain and
2    suffering. If a defendant is placed on supervision for, or
3    convicted of, domestic battery, the defendant shall be
4    required to pay restitution to any domestic violence
5    shelter in which the victim and any other family or
6    household members lived because of the domestic battery.
7    The amount of the restitution shall equal the actual
8    expenses of the domestic violence shelter in providing
9    housing and any other services for the victim and any other
10    family or household members living at the shelter. If a
11    defendant fails to pay restitution in the manner or within
12    the time period specified by the court, the court may enter
13    an order directing the sheriff to seize any real or
14    personal property of a defendant to the extent necessary to
15    satisfy the order of restitution and dispose of the
16    property by public sale. All proceeds from such sale in
17    excess of the amount of restitution plus court costs and
18    the costs of the sheriff in conducting the sale shall be
19    paid to the defendant. The defendant convicted of domestic
20    battery, if a person under 18 years of age was present and
21    witnessed the domestic battery of the victim, is liable to
22    pay restitution for the cost of any counseling required for
23    the child at the discretion of the court.
24        (c) In cases where more than one defendant is
25    accountable for the same criminal conduct that results in
26    out-of-pocket expenses, losses, damages, or injuries, each



09700HB1689sam002- 8 -LRB097 08260 RLC 55810 a

1    defendant shall be ordered to pay restitution in the amount
2    of the total actual out-of-pocket expenses, losses,
3    damages, or injuries to the victim proximately caused by
4    the conduct of all of the defendants who are legally
5    accountable for the offense.
6            (1) In no event shall the victim be entitled to
7        recover restitution in excess of the actual
8        out-of-pocket expenses, losses, damages, or injuries,
9        proximately caused by the conduct of all of the
10        defendants.
11            (2) As between the defendants, the court may
12        apportion the restitution that is payable in
13        proportion to each co-defendant's culpability in the
14        commission of the offense.
15            (3) In the absence of a specific order apportioning
16        the restitution, each defendant shall bear his pro rata
17        share of the restitution.
18            (4) As between the defendants, each defendant
19        shall be entitled to a pro rata reduction in the total
20        restitution required to be paid to the victim for
21        amounts of restitution actually paid by co-defendants,
22        and defendants who shall have paid more than their pro
23        rata share shall be entitled to refunds to be computed
24        by the court as additional amounts are paid by
25        co-defendants.
26        (d) In instances where a defendant has more than one



09700HB1689sam002- 9 -LRB097 08260 RLC 55810 a

1    criminal charge pending against him in a single case, or
2    more than one case, and the defendant stands convicted of
3    one or more charges, a plea agreement negotiated by the
4    State's Attorney and the defendants may require the
5    defendant to make restitution to victims of charges that
6    have been dismissed or which it is contemplated will be
7    dismissed under the terms of the plea agreement, and under
8    the agreement, the court may impose a sentence of
9    restitution on the charge or charges of which the defendant
10    has been convicted that would require the defendant to make
11    restitution to victims of other offenses as provided in the
12    plea agreement.
13        (e) The court may require the defendant to apply the
14    balance of the cash bond, after payment of court costs, and
15    any fine that may be imposed to the payment of restitution.
16        (f) Taking into consideration the ability of the
17    defendant to pay, including any real or personal property
18    or any other assets of the defendant, the court shall
19    determine whether restitution shall be paid in a single
20    payment or in installments, and shall fix a period of time
21    not in excess of 5 years, except for violations of Sections
22    16-1.3 and 17-56 of the Criminal Code of 1961, or the
23    period of time specified in subsection (f-1), not including
24    periods of incarceration, within which payment of
25    restitution is to be paid in full. Complete restitution
26    shall be paid in as short a time period as possible.



09700HB1689sam002- 10 -LRB097 08260 RLC 55810 a

1    However, if the court deems it necessary and in the best
2    interest of the victim, the court may extend beyond 5 years
3    the period of time within which the payment of restitution
4    is to be paid. If the defendant is ordered to pay
5    restitution and the court orders that restitution is to be
6    paid over a period greater than 6 months, the court shall
7    order that the defendant make monthly payments; the court
8    may waive this requirement of monthly payments only if
9    there is a specific finding of good cause for waiver.
10        (f-1)(1) In addition to any other penalty prescribed by
11    law and any restitution ordered under this Section that did
12    not include long-term physical health care costs, the court
13    may, upon conviction of any misdemeanor or felony, order a
14    defendant to pay restitution to a victim in accordance with
15    the provisions of this subsection (f-1) if the victim has
16    suffered physical injury as a result of the offense that is
17    reasonably probable to require or has required long-term
18    physical health care for more than 3 months. As used in
19    this subsection (f-1) "long-term physical health care"
20    includes mental health care.
21        (2) The victim's estimate of long-term physical health
22    care costs may be made as part of a victim impact statement
23    under Section 6 of the Rights of Crime Victims and
24    Witnesses Act or made separately. The court shall enter the
25    long-term physical health care restitution order at the
26    time of sentencing. An order of restitution made under this



09700HB1689sam002- 11 -LRB097 08260 RLC 55810 a

1    subsection (f-1) shall fix a monthly amount to be paid by
2    the defendant for as long as long-term physical health care
3    of the victim is required as a result of the offense. The
4    order may exceed the length of any sentence imposed upon
5    the defendant for the criminal activity. The court shall
6    include as a special finding in the judgment of conviction
7    its determination of the monthly cost of long-term physical
8    health care.
9        (3) After a sentencing order has been entered, the
10    court may from time to time, on the petition of either the
11    defendant or the victim, or upon its own motion, enter an
12    order for restitution for long-term physical care or modify
13    the existing order for restitution for long-term physical
14    care as to the amount of monthly payments. Any modification
15    of the order shall be based only upon a substantial change
16    of circumstances relating to the cost of long-term physical
17    health care or the financial condition of either the
18    defendant or the victim. The petition shall be filed as
19    part of the original criminal docket.
20        (g) In addition to the sentences provided for in
21    Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
22    11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
23    12-14.1, 12-15, and 12-16, and subdivision (a)(4) of
24    Section 11-14.4, of the Criminal Code of 1961, the court
25    may order any person who is convicted of violating any of
26    those Sections or who was charged with any of those



09700HB1689sam002- 12 -LRB097 08260 RLC 55810 a

1    offenses and which charge was reduced to another charge as
2    a result of a plea agreement under subsection (d) of this
3    Section to meet all or any portion of the financial
4    obligations of treatment, including but not limited to
5    medical, psychiatric, or rehabilitative treatment or
6    psychological counseling, prescribed for the victim or
7    victims of the offense.
8        The payments shall be made by the defendant to the
9    clerk of the circuit court and transmitted by the clerk to
10    the appropriate person or agency as directed by the court.
11    Except as otherwise provided in subsection (f-1), the order
12    may require such payments to be made for a period not to
13    exceed 5 years after sentencing, not including periods of
14    incarceration.
15        (h) The judge may enter an order of withholding to
16    collect the amount of restitution owed in accordance with
17    Part 8 of Article XII of the Code of Civil Procedure.
18        (i) A sentence of restitution may be modified or
19    revoked by the court if the offender commits another
20    offense, or the offender fails to make restitution as
21    ordered by the court, but no sentence to make restitution
22    shall be revoked unless the court shall find that the
23    offender has had the financial ability to make restitution,
24    and he has wilfully refused to do so. When the offender's
25    ability to pay restitution was established at the time an
26    order of restitution was entered or modified, or when the



09700HB1689sam002- 13 -LRB097 08260 RLC 55810 a

1    offender's ability to pay was based on the offender's
2    willingness to make restitution as part of a plea agreement
3    made at the time the order of restitution was entered or
4    modified, there is a rebuttable presumption that the facts
5    and circumstances considered by the court at the hearing at
6    which the order of restitution was entered or modified
7    regarding the offender's ability or willingness to pay
8    restitution have not materially changed. If the court shall
9    find that the defendant has failed to make restitution and
10    that the failure is not wilful, the court may impose an
11    additional period of time within which to make restitution.
12    The length of the additional period shall not be more than
13    2 years. The court shall retain all of the incidents of the
14    original sentence, including the authority to modify or
15    enlarge the conditions, and to revoke or further modify the
16    sentence if the conditions of payment are violated during
17    the additional period.
18        (j) The procedure upon the filing of a Petition to
19    Revoke a sentence to make restitution shall be the same as
20    the procedures set forth in Section 5-6-4 of this Code
21    governing violation, modification, or revocation of
22    Probation, of Conditional Discharge, or of Supervision.
23        (k) Nothing contained in this Section shall preclude
24    the right of any party to proceed in a civil action to
25    recover for any damages incurred due to the criminal
26    misconduct of the defendant.



09700HB1689sam002- 14 -LRB097 08260 RLC 55810 a

1        (l) Restitution ordered under this Section shall not be
2    subject to disbursement by the circuit clerk under Section
3    27.5 of the Clerks of Courts Act.
4        (m) A restitution order under this Section is a
5    judgment lien in favor of the victim that:
6            (1) Attaches to the property of the person subject
7        to the order;
8            (2) May be perfected in the same manner as provided
9        in Part 3 of Article 9 of the Uniform Commercial Code;
10            (3) May be enforced to satisfy any payment that is
11        delinquent under the restitution order by the person in
12        whose favor the order is issued or the person's
13        assignee; and
14            (4) Expires in the same manner as a judgment lien
15        created in a civil proceeding.
16        When a restitution order is issued under this Section,
17    the issuing court shall send a certified copy of the order
18    to the clerk of the circuit court in the county where the
19    charge was filed. Upon receiving the order, the clerk shall
20    enter and index the order in the circuit court judgment
21    docket.
22        (n) An order of restitution under this Section does not
23    bar a civil action for:
24            (1) Damages that the court did not require the
25        person to pay to the victim under the restitution order
26        but arise from an injury or property damages that is



09700HB1689sam002- 15 -LRB097 08260 RLC 55810 a

1        the basis of restitution ordered by the court; and
2            (2) Other damages suffered by the victim.
3    The restitution order is not discharged by the completion
4of the sentence imposed for the offense.
5    A restitution order under this Section is not discharged by
6the liquidation of a person's estate by a receiver. A
7restitution order under this Section may be enforced in the
8same manner as judgment liens are enforced under Article XII of
9the Code of Civil Procedure.
10    The provisions of Section 2-1303 of the Code of Civil
11Procedure, providing for interest on judgments, apply to
12judgments for restitution entered under this Section.
13(Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09;
1496-1551, eff. 7-1-11.)".