Illinois General Assembly - Full Text of HB1689
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Full Text of HB1689  97th General Assembly


Sen. Toi W. Hutchinson

Filed: 5/10/2011





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2    AMENDMENT NO. ______. Amend House Bill 1689 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Unified Code of Corrections is amended by
5changing 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
9the Criminal Code of 1961 or of Section 11-501 of the Illinois
10Vehicle Code in which the person received any injury to his or
11her person or damage to his or her real or personal property as
12a result of the criminal act of the defendant, the court shall
13order restitution as provided in this Section. In all other
14cases, except cases in which restitution is required under this
15Section, the court must at the sentence hearing determine
16whether restitution is an appropriate sentence to be imposed on



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1each defendant convicted of an offense. If the court determines
2that an order directing the offender to make restitution is
3appropriate, the offender may be sentenced to make restitution.
4The court may consider restitution an appropriate sentence to
5be imposed on each defendant convicted of an offense in
6addition to a sentence of imprisonment. The sentence of the
7defendant to a term of imprisonment is not a mitigating factor
8that prevents the court from ordering the defendant to pay
9restitution. If the offender is sentenced to make restitution
10the Court shall determine the restitution as hereinafter set
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
13of the sentence imposed for the offense.
14    A restitution order under this Section is not discharged by
15the liquidation of a person's estate by a receiver. A
16restitution order under this Section may be enforced in the
17same manner as judgment liens are enforced under Article XII of
18the Code of Civil Procedure.
19    The provisions of Section 2-1303 of the Code of Civil
20Procedure, providing for interest on judgments, apply to
21judgments for restitution entered under this Section.
22(Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09;
2396-1551, eff. 7-1-11.)".