98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB3774

 

Introduced , by Rep. Michael J. Zalewski

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/16-25
730 ILCS 5/5-5-6  from Ch. 38, par. 1005-5-6

    Amends the Criminal Code of 2012 and the Unified Code of Corrections. Increases the threshold amounts for enhanced penalties for retail theft (from over $300 to over $500). Provides that a person sentenced for retail theft of property the full retail value of which does not exceed $500 shall be required to make full restitution to the merchant.


LRB098 15213 RLC 50202 b

 

 

A BILL FOR

 

HB3774LRB098 15213 RLC 50202 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Section 16-25 as follows:
 
6    (720 ILCS 5/16-25)
7    Sec. 16-25. Retail theft.
8    (a) A person commits retail theft when he or she knowingly:
9        (1) Takes possession of, carries away, transfers or
10    causes to be carried away or transferred any merchandise
11    displayed, held, stored or offered for sale in a retail
12    mercantile establishment with the intention of retaining
13    such merchandise or with the intention of depriving the
14    merchant permanently of the possession, use or benefit of
15    such merchandise without paying the full retail value of
16    such merchandise; or
17        (2) Alters, transfers, or removes any label, price tag,
18    marking, indicia of value or any other markings which aid
19    in determining value affixed to any merchandise displayed,
20    held, stored or offered for sale in a retail mercantile
21    establishment and attempts to purchase such merchandise at
22    less than the full retail value with the intention of
23    depriving the merchant of the full retail value of such

 

 

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1    merchandise; or
2        (3) Transfers any merchandise displayed, held, stored
3    or offered for sale in a retail mercantile establishment
4    from the container in or on which such merchandise is
5    displayed to any other container with the intention of
6    depriving the merchant of the full retail value of such
7    merchandise; or
8        (4) Under-rings with the intention of depriving the
9    merchant of the full retail value of the merchandise; or
10        (5) Removes a shopping cart from the premises of a
11    retail mercantile establishment without the consent of the
12    merchant given at the time of such removal with the
13    intention of depriving the merchant permanently of the
14    possession, use or benefit of such cart; or
15        (6) Represents to a merchant that he, she, or another
16    is the lawful owner of property, knowing that such
17    representation is false, and conveys or attempts to convey
18    that property to a merchant who is the owner of the
19    property in exchange for money, merchandise credit or other
20    property of the merchant; or
21        (7) Uses or possesses any theft detection shielding
22    device or theft detection device remover with the intention
23    of using such device to deprive the merchant permanently of
24    the possession, use or benefit of any merchandise
25    displayed, held, stored or offered for sale in a retail
26    mercantile establishment without paying the full retail

 

 

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1    value of such merchandise; or
2        (8) Obtains or exerts unauthorized control over
3    property of the owner and thereby intends to deprive the
4    owner permanently of the use or benefit of the property
5    when a lessee of the personal property of another fails to
6    return it to the owner, or if the lessee fails to pay the
7    full retail value of such property to the lessor in
8    satisfaction of any contractual provision requiring such,
9    within 10 days after written demand from the owner for its
10    return. A notice in writing, given after the expiration of
11    the leasing agreement, by registered mail, to the lessee at
12    the address given by the lessee and shown on the leasing
13    agreement shall constitute proper demand.
14    (b) Theft by emergency exit. A person commits theft by
15emergency exit when he or she commits a retail theft as defined
16in subdivisions (a)(1) through (a)(8) of this Section and to
17facilitate the theft he or she leaves the retail mercantile
18establishment by use of a designated emergency exit.
19    (c) Permissive inference. If any person:
20        (1) conceals upon his or her person or among his or her
21    belongings unpurchased merchandise displayed, held, stored
22    or offered for sale in a retail mercantile establishment;
23    and
24        (2) removes that merchandise beyond the last known
25    station for receiving payments for that merchandise in that
26    retail mercantile establishment,

 

 

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1then the trier of fact may infer that the person possessed,
2carried away or transferred such merchandise with the intention
3of retaining it or with the intention of depriving the merchant
4permanently of the possession, use or benefit of such
5merchandise without paying the full retail value of such
6merchandise.
7    To "conceal" merchandise means that, although there may be
8some notice of its presence, that merchandise is not visible
9through ordinary observation.
10    (d) Venue. Multiple thefts committed by the same person as
11part of a continuing course of conduct in different
12jurisdictions that have been aggregated in one jurisdiction may
13be prosecuted in any jurisdiction in which one or more of the
14thefts occurred.
15    (e) For the purposes of this Section, "theft detection
16shielding device" means any laminated or coated bag or device
17designed and intended to shield merchandise from detection by
18an electronic or magnetic theft alarm sensor.
19    (f) Sentence.
20        (1) A violation of any of subdivisions (a)(1) through
21    (a)(6) and (a)(8) of this Section, the full retail value of
22    which does not exceed $500 $300 for property other than
23    motor fuel or $150 for motor fuel, is a Class A
24    misdemeanor. A violation of subdivision (a)(7) of this
25    Section is a Class A misdemeanor for a first offense and a
26    Class 4 felony for a second or subsequent offense. Theft by

 

 

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1    emergency exit of property, the full retail value of which
2    does not exceed $500 $300, is a Class 4 felony.
3        (2) A person who has been convicted of retail theft of
4    property under any of subdivisions (a)(1) through (a)(6)
5    and (a)(8) of this Section, the full retail value of which
6    does not exceed $500 $300 for property other than motor
7    fuel or $150 for motor fuel, and who has 2 or more prior
8    convictions been previously convicted of any type of theft,
9    robbery, armed robbery, burglary, residential burglary,
10    possession of burglary tools, home invasion, unlawful use
11    of a credit card, or forgery is guilty of a Class 4 felony.
12    A person who has been convicted of theft by emergency exit
13    of property, the full retail value of which does not exceed
14    $500 $300, and who has 2 or more prior convictions been
15    previously convicted of any type of theft, robbery, armed
16    robbery, burglary, residential burglary, possession of
17    burglary tools, home invasion, unlawful use of a credit
18    card, or forgery is guilty of a Class 3 felony.
19        (3) Any retail theft of property under any of
20    subdivisions (a)(1) through (a)(6) and (a)(8) of this
21    Section, the full retail value of which exceeds $500 $300
22    for property other than motor fuel or $150 for motor fuel
23    in a single transaction, or in separate transactions
24    committed by the same person as part of a continuing course
25    of conduct from one or more mercantile establishments over
26    a period of one year, is a Class 3 felony. Theft by

 

 

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1    emergency exit of property, the full retail value of which
2    exceeds $500 $300 in a single transaction, or in separate
3    transactions committed by the same person as part of a
4    continuing course of conduct from one or more mercantile
5    establishments over a period of one year, is a Class 2
6    felony. When a charge of retail theft of property or theft
7    by emergency exit of property, the full value of which
8    exceeds $500 $300, is brought, the value of the property
9    involved is an element of the offense to be resolved by the
10    trier of fact as either exceeding or not exceeding $500
11    $300.
12        (4) A person sentenced under subdivision (f)(1) or
13    (f)(2) of this Section for theft of property the full
14    retail value of which does not exceed $500 shall be
15    required to make full restitution to the merchant.
16(Source: P.A. 97-597, eff. 1-1-12.)
 
17    Section 10. The Unified Code of Corrections is amended by
18changing Section 5-5-6 as follows:
 
19    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
20    Sec. 5-5-6. In all convictions for offenses in violation of
21the Criminal Code of 1961 or the Criminal Code of 2012 or of
22Section 11-501 of the Illinois Vehicle Code in which the person
23received any injury to his or her person or damage to his or
24her real or personal property as a result of the criminal act

 

 

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1of the defendant, the court shall order restitution as provided
2in this Section. In all other cases, except cases in which
3restitution is required under this Section, the court must at
4the sentence hearing determine whether restitution is an
5appropriate sentence to be imposed on each defendant convicted
6of an offense. If the court determines that an order directing
7the offender to make restitution is appropriate, the offender
8may be sentenced to make restitution. The court may consider
9restitution an appropriate sentence to be imposed on each
10defendant convicted of an offense in addition to a sentence of
11imprisonment. The sentence of the defendant to a term of
12imprisonment is not a mitigating factor that prevents the court
13from ordering the defendant to pay restitution. If the offender
14is sentenced to make restitution the Court shall determine the
15restitution as hereinafter set forth:
16        (a) At the sentence hearing, the court shall determine
17    whether the property may be restored in kind to the
18    possession of the owner or the person entitled to
19    possession thereof; or whether the defendant is possessed
20    of sufficient skill to repair and restore property damaged;
21    or whether the defendant should be required to make
22    restitution in cash, for out-of-pocket expenses, damages,
23    losses, or injuries found to have been proximately caused
24    by the conduct of the defendant or another for whom the
25    defendant is legally accountable under the provisions of
26    Article 5 of the Criminal Code of 1961 or the Criminal Code

 

 

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1    of 2012.
2        (b) In fixing the amount of restitution to be paid in
3    cash, the court shall allow credit for property returned in
4    kind, for property damages ordered to be repaired by the
5    defendant, and for property ordered to be restored by the
6    defendant; and after granting the credit, the court shall
7    assess the actual out-of-pocket expenses, losses, damages,
8    and injuries suffered by the victim named in the charge and
9    any other victims who may also have suffered out-of-pocket
10    expenses, losses, damages, and injuries proximately caused
11    by the same criminal conduct of the defendant, and
12    insurance carriers who have indemnified the named victim or
13    other victims for the out-of-pocket expenses, losses,
14    damages, or injuries, provided that in no event shall
15    restitution be ordered to be paid on account of pain and
16    suffering. When a victim's out-of-pocket expenses have
17    been paid pursuant to the Crime Victims Compensation Act,
18    the court shall order restitution be paid to the
19    compensation program. If a defendant is placed on
20    supervision for, or convicted of, domestic battery, the
21    defendant shall be required to pay restitution to any
22    domestic violence shelter in which the victim and any other
23    family or household members lived because of the domestic
24    battery. The amount of the restitution shall equal the
25    actual expenses of the domestic violence shelter in
26    providing housing and any other services for the victim and

 

 

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1    any other family or household members living at the
2    shelter. If a defendant fails to pay restitution in the
3    manner or within the time period specified by the court,
4    the court may enter an order directing the sheriff to seize
5    any real or personal property of a defendant to the extent
6    necessary to satisfy the order of restitution and dispose
7    of the property by public sale. All proceeds from such sale
8    in excess of the amount of restitution plus court costs and
9    the costs of the sheriff in conducting the sale shall be
10    paid to the defendant. The defendant convicted of domestic
11    battery, if a person under 18 years of age was present and
12    witnessed the domestic battery of the victim, is liable to
13    pay restitution for the cost of any counseling required for
14    the child at the discretion of the court.
15        (c) In cases where more than one defendant is
16    accountable for the same criminal conduct that results in
17    out-of-pocket expenses, losses, damages, or injuries, each
18    defendant shall be ordered to pay restitution in the amount
19    of the total actual out-of-pocket expenses, losses,
20    damages, or injuries to the victim proximately caused by
21    the conduct of all of the defendants who are legally
22    accountable for the offense.
23            (1) In no event shall the victim be entitled to
24        recover restitution in excess of the actual
25        out-of-pocket expenses, losses, damages, or injuries,
26        proximately caused by the conduct of all of the

 

 

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1        defendants.
2            (2) As between the defendants, the court may
3        apportion the restitution that is payable in
4        proportion to each co-defendant's culpability in the
5        commission of the offense.
6            (3) In the absence of a specific order apportioning
7        the restitution, each defendant shall bear his pro rata
8        share of the restitution.
9            (4) As between the defendants, each defendant
10        shall be entitled to a pro rata reduction in the total
11        restitution required to be paid to the victim for
12        amounts of restitution actually paid by co-defendants,
13        and defendants who shall have paid more than their pro
14        rata share shall be entitled to refunds to be computed
15        by the court as additional amounts are paid by
16        co-defendants.
17        (d) In instances where a defendant has more than one
18    criminal charge pending against him in a single case, or
19    more than one case, and the defendant stands convicted of
20    one or more charges, a plea agreement negotiated by the
21    State's Attorney and the defendants may require the
22    defendant to make restitution to victims of charges that
23    have been dismissed or which it is contemplated will be
24    dismissed under the terms of the plea agreement, and under
25    the agreement, the court may impose a sentence of
26    restitution on the charge or charges of which the defendant

 

 

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1    has been convicted that would require the defendant to make
2    restitution to victims of other offenses as provided in the
3    plea agreement.
4        (e) The court may require the defendant to apply the
5    balance of the cash bond, after payment of court costs, and
6    any fine that may be imposed to the payment of restitution.
7        (e-1) A person sentenced under subdivision (f)(1) or
8    (f)(2) of Section 16-25 of the Criminal Code of 2012 for
9    theft of property the full retail value of which does not
10    exceed $500 shall be required to make full restitution to
11    the merchant. For purposes of this paragraph (e-1),
12    "merchant" has the meaning ascribed to the term in Section
13    16-0.1 of the Criminal Code of 2012.
14        (f) Taking into consideration the ability of the
15    defendant to pay, including any real or personal property
16    or any other assets of the defendant, the court shall
17    determine whether restitution shall be paid in a single
18    payment or in installments, and shall fix a period of time
19    not in excess of 5 years, except for violations of Sections
20    16-1.3 and 17-56 of the Criminal Code of 1961 or the
21    Criminal Code of 2012, or the period of time specified in
22    subsection (f-1), not including periods of incarceration,
23    within which payment of restitution is to be paid in full.
24    Complete restitution shall be paid in as short a time
25    period as possible. However, if the court deems it
26    necessary and in the best interest of the victim, the court

 

 

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

 

 

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1    the defendant for as long as long-term physical health care
2    of the victim is required as a result of the offense. The
3    order may exceed the length of any sentence imposed upon
4    the defendant for the criminal activity. The court shall
5    include as a special finding in the judgment of conviction
6    its determination of the monthly cost of long-term physical
7    health care.
8        (3) After a sentencing order has been entered, the
9    court may from time to time, on the petition of either the
10    defendant or the victim, or upon its own motion, enter an
11    order for restitution for long-term physical care or modify
12    the existing order for restitution for long-term physical
13    care as to the amount of monthly payments. Any modification
14    of the order shall be based only upon a substantial change
15    of circumstances relating to the cost of long-term physical
16    health care or the financial condition of either the
17    defendant or the victim. The petition shall be filed as
18    part of the original criminal docket.
19        (g) In addition to the sentences provided for in
20    Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
21    11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
22    12-14.1, 12-15, and 12-16, and subdivision (a)(4) of
23    Section 11-14.4, of the Criminal Code of 1961 or the
24    Criminal Code of 2012, the court may order any person who
25    is convicted of violating any of those Sections or who was
26    charged with any of those offenses and which charge was

 

 

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

 

 

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

 

 

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

 

 

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1            (2) Other damages suffered by the victim.
2    The restitution order is not discharged by the completion
3of the sentence imposed for the offense.
4    A restitution order under this Section is not discharged by
5the liquidation of a person's estate by a receiver. A
6restitution order under this Section may be enforced in the
7same manner as judgment liens are enforced under Article XII of
8the Code of Civil Procedure.
9    The provisions of Section 2-1303 of the Code of Civil
10Procedure, providing for interest on judgments, apply to
11judgments for restitution entered under this Section.
12(Source: P.A. 96-290, eff. 8-11-09; 96-1551, eff. 7-1-11;
1397-482, eff. 1-1-12; 97-817, eff. 1-1-13; 97-1150, eff.
141-25-13.)