Full Text of HB1689 97th General Assembly
HB1689sam001 97TH GENERAL ASSEMBLY | Sen. Toi W. Hutchinson Filed: 5/10/2011
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| 1 | | AMENDMENT TO HOUSE BILL 1689
| 2 | | AMENDMENT NO. ______. Amend House Bill 1689 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Unified Code of Corrections is amended by | 5 | | changing Section 5-5-6 as follows:
| 6 | | (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| 7 | | (Text of Section after amendment by P.A. 96-1551 )
| 8 | | Sec. 5-5-6. In all convictions for offenses in violation of | 9 | | the Criminal
Code of 1961 or of Section 11-501 of the Illinois | 10 | | Vehicle Code in which the person received any injury to his or | 11 | | her person or damage
to his or her real or personal property as | 12 | | a result of the criminal act of the
defendant, the court shall | 13 | | order restitution as provided in this Section. In
all other | 14 | | cases, except cases in which restitution is required under this
| 15 | | Section, the court must at the sentence hearing determine | 16 | | whether restitution
is an appropriate sentence to be imposed on |
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| 1 | | each defendant convicted of an
offense. If the court determines | 2 | | that an order directing the offender to make
restitution is | 3 | | appropriate, the offender may be sentenced to make restitution.
| 4 | | The court may consider restitution an appropriate sentence to | 5 | | be imposed on each defendant convicted of an offense in | 6 | | addition to a sentence of imprisonment. The sentence of the | 7 | | defendant to a term of imprisonment is not a mitigating factor | 8 | | that prevents the court from ordering the defendant to pay | 9 | | restitution. If
the offender is sentenced to make restitution | 10 | | the Court shall determine the
restitution as hereinafter set | 11 | | forth:
| 12 | | (a) At the sentence hearing, the court shall determine | 13 | | whether the
property
may be restored in kind to the | 14 | | possession of the owner or the person entitled
to | 15 | | possession thereof; or whether the defendant is possessed | 16 | | of sufficient
skill to repair and restore property damaged; | 17 | | or whether the defendant should
be required to make | 18 | | restitution in cash, for out-of-pocket expenses, damages,
| 19 | | losses, or injuries found to have been proximately caused | 20 | | by the conduct
of the defendant or another for whom the | 21 | | defendant is legally accountable
under the provisions of | 22 | | Article V of the Criminal Code of 1961.
| 23 | | (b) In fixing the amount of restitution to be paid in | 24 | | cash, the court
shall allow credit for property returned in | 25 | | kind, for property damages ordered
to be repaired by the | 26 | | defendant, and for property ordered to be restored
by the |
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| 1 | | defendant; and after granting the credit, the court shall | 2 | | assess
the actual out-of-pocket expenses, losses, damages, | 3 | | and injuries suffered
by the victim named in the charge and | 4 | | any other victims who may also have
suffered out-of-pocket | 5 | | expenses, losses, damages, and injuries proximately
caused | 6 | | by the same criminal conduct of the defendant, and | 7 | | insurance
carriers who have indemnified the named victim or | 8 | | other victims for the
out-of-pocket expenses, losses, | 9 | | damages, or injuries, provided that in no
event shall | 10 | | restitution be ordered to be paid on account of pain and
| 11 | | suffering. If a defendant is placed on supervision for, or | 12 | | convicted of,
domestic battery, the defendant shall be | 13 | | required to pay restitution to any
domestic violence | 14 | | shelter in which the victim and any other family or | 15 | | household
members lived because of the domestic battery. | 16 | | The amount of the restitution
shall equal the actual | 17 | | expenses of the domestic violence shelter in providing
| 18 | | housing and any other services for the victim and any other | 19 | | family or household
members living at the shelter. If a | 20 | | defendant fails to pay restitution in
the manner or within
| 21 | | the time period specified by the court, the court may enter | 22 | | an order
directing the sheriff to seize any real or | 23 | | personal property of a defendant
to the extent necessary to | 24 | | satisfy the order of restitution and dispose of
the | 25 | | property by public sale. All proceeds from such sale in | 26 | | excess of the
amount of restitution plus court costs and |
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| 1 | | the costs of the sheriff in
conducting the sale shall be | 2 | | paid to the defendant. The defendant convicted of
domestic | 3 | | battery, if a person under 18 years of age was present and | 4 | | witnessed the domestic battery of the
victim, is liable to | 5 | | pay restitution for the cost of any counseling required
for
| 6 | | the child at the discretion of the court.
| 7 | | (c) In cases where more than one defendant is | 8 | | accountable for the same
criminal conduct that results in | 9 | | out-of-pocket expenses, losses, damages,
or injuries, each | 10 | | defendant shall be ordered to pay restitution in the amount
| 11 | | of the total actual out-of-pocket expenses, losses, | 12 | | damages, or injuries
to the victim proximately caused by | 13 | | the conduct of all of the defendants
who are legally | 14 | | accountable for the offense.
| 15 | | (1) In no event shall the victim be entitled to | 16 | | recover restitution in
excess of the actual | 17 | | out-of-pocket expenses, losses, damages, or injuries,
| 18 | | proximately caused by the conduct of all of the | 19 | | defendants.
| 20 | | (2) As between the defendants, the court may | 21 | | apportion the restitution
that is payable in | 22 | | proportion to each co-defendant's culpability in the
| 23 | | commission of the offense.
| 24 | | (3) In the absence of a specific order apportioning | 25 | | the restitution,
each defendant shall bear his pro rata | 26 | | share of the restitution.
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| 1 | | (4) As between the defendants, each defendant | 2 | | shall be entitled to a pro
rata reduction in the total | 3 | | restitution required to be paid to the victim
for | 4 | | amounts of restitution actually paid by co-defendants, | 5 | | and defendants
who shall have paid more than their pro | 6 | | rata share shall be entitled to
refunds to be computed | 7 | | by the court as additional amounts are
paid by | 8 | | co-defendants.
| 9 | | (d) In instances where a defendant has more than one | 10 | | criminal charge
pending
against him in a single case, or | 11 | | more than one case, and the defendant stands
convicted of | 12 | | one or more charges, a plea agreement negotiated by the | 13 | | State's
Attorney and the defendants may require the | 14 | | defendant to make restitution
to victims of charges that | 15 | | have been dismissed or which it is contemplated
will be | 16 | | dismissed under the terms of the plea agreement, and under | 17 | | the
agreement, the court may impose a sentence of | 18 | | restitution on the charge
or charges of which the defendant | 19 | | has been convicted that would require
the defendant to make | 20 | | restitution to victims of other offenses as provided
in the | 21 | | plea agreement.
| 22 | | (e) The court may require the defendant to apply the | 23 | | balance of the cash
bond, after payment of court costs, and | 24 | | any fine that may be imposed to
the payment of restitution.
| 25 | | (f) Taking into consideration the ability of the | 26 | | defendant to pay, including any real or personal property |
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| 1 | | or any other assets of the defendant,
the court shall | 2 | | determine whether restitution shall be paid in a single
| 3 | | payment or in installments, and shall fix a period of time | 4 | | not in excess
of 5 years or the period of time specified in | 5 | | subsection (f-1), not including periods of incarceration, | 6 | | within which payment of
restitution is to be paid in full.
| 7 | | Complete restitution shall be paid in as short a time | 8 | | period as possible.
However, if the court deems it | 9 | | necessary and in the best interest of the
victim, the court | 10 | | may extend beyond 5 years the period of time within which | 11 | | the
payment of restitution is to be paid.
If the defendant | 12 | | is ordered to pay restitution and the court orders that
| 13 | | restitution is to be paid over a period greater than 6 | 14 | | months, the court
shall order that the defendant make | 15 | | monthly payments; the court may waive
this requirement of | 16 | | monthly payments only if there is a specific finding of
| 17 | | good cause for waiver.
| 18 | | (f-1)(1) In addition to any other penalty prescribed by | 19 | | law and any restitution ordered under this Section that did | 20 | | not include long-term physical health care costs, the court | 21 | | may, upon conviction of any misdemeanor or felony, order a | 22 | | defendant to pay restitution to a victim in accordance with | 23 | | the provisions of this subsection (f-1) if the victim has | 24 | | suffered physical injury as a result of the offense that is | 25 | | reasonably probable to require or has required long-term | 26 | | physical health care for more than 3 months. As used in |
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| 1 | | this subsection (f-1) "long-term physical health care" | 2 | | includes mental health care.
| 3 | | (2) The victim's estimate of long-term physical health | 4 | | care costs may be made as part of a victim impact statement | 5 | | under Section 6 of the Rights of Crime Victims and | 6 | | Witnesses Act or made separately. The court shall enter the | 7 | | long-term physical health care restitution order at the | 8 | | time of sentencing. An order of restitution made under this | 9 | | subsection (f-1) shall fix a monthly amount to be paid by | 10 | | the defendant for as long as long-term physical health care | 11 | | of the victim is required as a result of the offense. The | 12 | | order may exceed the length of any sentence imposed upon | 13 | | the defendant for the criminal activity. The court shall | 14 | | include as a special finding in the judgment of conviction | 15 | | its determination of the monthly cost of long-term physical | 16 | | health care.
| 17 | | (3) After a sentencing order has been entered, the | 18 | | court may from time to time, on the petition of either the | 19 | | defendant or the victim, or upon its own motion, enter an | 20 | | order for restitution for long-term physical care or modify | 21 | | the existing order for restitution for long-term physical | 22 | | care as to the amount of monthly payments. Any modification | 23 | | of the order shall be based only upon a substantial change | 24 | | of circumstances relating to the cost of long-term physical | 25 | | health care or the financial condition of either the | 26 | | defendant or the victim. The petition shall be filed as |
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| 1 | | part of the original criminal docket.
| 2 | | (g) In addition to the sentences provided for in | 3 | | Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | 4 | | 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13,
12-14, | 5 | | 12-14.1, 12-15, and 12-16, 16-1.3, and 17-56, and | 6 | | subdivision (a)(4) of Section 11-14.4, of the Criminal Code | 7 | | of 1961, the court may
order any person who is convicted of | 8 | | violating any of those Sections or who was charged with any | 9 | | of those offenses and which charge was reduced to another | 10 | | charge as a result of a plea agreement under subsection (d) | 11 | | of this Section to meet
all or any portion of the financial | 12 | | obligations of treatment, including but not
limited to | 13 | | medical, psychiatric, or rehabilitative treatment or | 14 | | psychological counseling,
prescribed for the victim or | 15 | | victims of the offense.
| 16 | | The payments shall be made by the defendant to the | 17 | | clerk of the circuit
court
and transmitted by the clerk to | 18 | | the appropriate person or agency as directed by
the court. | 19 | | Except for orders based on violations of Sections 16-1.3 | 20 | | and 17-56 of the Criminal Code of 1961 or as otherwise | 21 | | provided in subsection (f-1), the
order may require such | 22 | | payments to be made for a period not to
exceed 5 years | 23 | | after sentencing, not including periods of incarceration.
| 24 | | (h) The judge may enter an order of withholding to | 25 | | collect the amount
of restitution owed in accordance with | 26 | | Part 8 of Article XII of the Code of
Civil Procedure.
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| 1 | | (i) A sentence of restitution may be modified or | 2 | | revoked by the court
if the offender commits another | 3 | | offense, or the offender fails to make
restitution as | 4 | | ordered by the court, but no sentence to make restitution
| 5 | | shall be revoked unless the court shall find that the | 6 | | offender has had the
financial ability to make restitution, | 7 | | and he has wilfully refused to do
so. When the offender's | 8 | | ability to pay restitution was established at the time
an | 9 | | order of restitution was entered or modified, or when the | 10 | | offender's ability
to pay was based on the offender's | 11 | | willingness to make restitution as part of a
plea agreement | 12 | | made at the time the order of restitution was entered or
| 13 | | modified, there is a rebuttable presumption that the facts | 14 | | and circumstances
considered by the court at the hearing at | 15 | | which the order of restitution was
entered or modified | 16 | | regarding the offender's ability or willingness to pay
| 17 | | restitution have not materially changed. If the court shall | 18 | | find that the
defendant has failed to make
restitution and | 19 | | that the failure is not wilful, the court may impose an
| 20 | | additional period of time within which to make restitution. | 21 | | The length of
the additional period shall not be more than | 22 | | 2 years. The court shall
retain all of the incidents of the | 23 | | original sentence, including the
authority to modify or | 24 | | enlarge the conditions, and to revoke or further
modify the | 25 | | sentence if the conditions of payment are violated during | 26 | | the
additional period.
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| 1 | | (j) The procedure upon the filing of a Petition to | 2 | | Revoke a sentence to
make restitution shall be the same as | 3 | | the procedures set forth in Section
5-6-4 of this Code | 4 | | governing violation, modification, or revocation of
| 5 | | Probation, of Conditional Discharge, or of Supervision.
| 6 | | (k) Nothing contained in this Section shall preclude | 7 | | the right of any
party to proceed in a civil action to | 8 | | recover for any damages incurred due
to the criminal | 9 | | misconduct of the defendant.
| 10 | | (l) Restitution ordered under this Section shall not be
| 11 | | subject to disbursement by the circuit clerk under Section | 12 | | 27.5 of the
Clerks of Courts Act.
| 13 | | (m) A restitution order under this Section is a | 14 | | judgment lien in favor
of
the victim that:
| 15 | | (1) Attaches to the property of the person subject | 16 | | to the order;
| 17 | | (2) May be perfected in the same manner as provided | 18 | | in Part 3 of Article
9 of the Uniform Commercial Code;
| 19 | | (3) May be enforced to satisfy any payment that is | 20 | | delinquent under the
restitution order by the person in | 21 | | whose favor the order is issued or the
person's | 22 | | assignee; and
| 23 | | (4) Expires in the same manner as a judgment lien | 24 | | created in a civil
proceeding.
| 25 | | When a restitution order is issued under this Section, | 26 | | the issuing court
shall send a certified copy of the order |
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| 1 | | to the clerk of the circuit court
in the county where the | 2 | | charge was filed. Upon receiving the order, the
clerk shall | 3 | | enter and index the order in the circuit court judgment | 4 | | docket.
| 5 | | (n) An order of restitution under this Section does not | 6 | | bar
a civil action for:
| 7 | | (1) Damages that the court did not require the | 8 | | person to pay to the
victim under the restitution order | 9 | | but arise from an injury or property
damages that is | 10 | | the basis of restitution ordered by the court; and
| 11 | | (2) Other damages suffered by the victim.
| 12 | | The restitution order is not discharged by the
completion | 13 | | of the sentence imposed for the offense.
| 14 | | A restitution order under this Section is not discharged by | 15 | | the
liquidation of a person's estate by a receiver. A | 16 | | restitution order under
this Section may be enforced in the | 17 | | same manner as judgment liens are
enforced under Article XII of | 18 | | the Code of Civil Procedure.
| 19 | | The provisions of Section 2-1303 of the Code of Civil | 20 | | Procedure,
providing for interest on judgments, apply to | 21 | | judgments for restitution entered
under this Section.
| 22 | | (Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09; | 23 | | 96-1551, eff. 7-1-11.)".
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