Full Text of HB1689 97th General Assembly
HB1689sam002 97TH GENERAL ASSEMBLY | Sen. Toi W. Hutchinson Filed: 5/18/2011
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| 1 | | AMENDMENT TO HOUSE BILL 1689
| 2 | | AMENDMENT NO. ______. Amend House Bill 1689, AS AMENDED, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Criminal Code of 1961 is amended by | 6 | | changing 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 | 9 | | delayed effective date )
| 10 | | Sec. 17-56. Financial exploitation of an elderly person or | 11 | | a
person with a disability.
| 12 | | (a) A person commits financial exploitation of an elderly
| 13 | | person or a person with a disability when he or she stands in a
| 14 | | position of trust
or confidence with the
elderly person or a | 15 | | person with a disability
and he
or she knowingly and by
| 16 | | deception or
intimidation obtains control over the property of |
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| 1 | | an elderly person or
a person
with a disability
or illegally | 2 | | uses the assets or resources of an elderly person or a
person | 3 | | with a disability.
| 4 | | (b) Sentence. Financial exploitation of an elderly person | 5 | | or a person
with a
disability is: (1) a Class 4
felony if the | 6 | | value of the property is $300 or less, (2) a Class 3 felony if
| 7 | | the 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 | 10 | | 1 felony if the value of the property is $50,000 $100,000 or | 11 | | more
or if the elderly person is over 70 years of age and the | 12 | | value of the
property is $15,000 or more or if the elderly | 13 | | person is 80 years of age or
older and the value of the | 14 | | property 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, |
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| 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 | 14 | | person or a person with a disability includes, but is not | 15 | | limited
to, the misappropriation of those assets or resources | 16 | | by undue influence,
breach of a fiduciary relationship, fraud, | 17 | | deception, extortion, or
use of the assets or resources | 18 | | contrary to law. | 19 | | A person stands in a position of
trust and confidence with | 20 | | an elderly person or person with a
disability when he (i) is a
| 21 | | parent, spouse, adult child or other relative by blood or | 22 | | marriage of the
elderly person or person with a disability, | 23 | | (ii) is a joint
tenant or
tenant in common with
the elderly | 24 | | person or person with a disability, (iii) has
a legal or
| 25 | | fiduciary relationship
with the elderly person or person with a | 26 | | disability, or (iv) is a financial
planning or investment |
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| 1 | | professional.
| 2 | | (d) Limitations. Nothing in this Section shall be construed | 3 | | to limit the remedies
available to the victim under the | 4 | | Illinois Domestic Violence Act of 1986.
| 5 | | (e) Good faith efforts. Nothing in this Section shall be | 6 | | construed to impose criminal
liability on a person who has made | 7 | | a good faith effort to assist the
elderly person or person with | 8 | | a disability in the
management of his or her
property, but | 9 | | through
no fault of his or her own has been unable to provide | 10 | | such assistance.
| 11 | | (f) Not a defense. It shall not be a defense to financial | 12 | | exploitation of an elderly
person or person with a disability | 13 | | that the accused reasonably believed
that the victim was
not an | 14 | | elderly person or person with a disability.
| 15 | | (g) Civil Liability. A person who is charged by information | 16 | | or
indictment with the offense of financial exploitation of an | 17 | | elderly person
or person with a disability and who fails or | 18 | | refuses to return
the victim's property
within 60 days | 19 | | following a written demand from the victim or the victim's
| 20 | | legal representative shall be liable to the victim or to the | 21 | | estate of the
victim in damages of treble the amount of the | 22 | | value of the property
obtained, plus reasonable attorney fees | 23 | | and court costs. The burden of
proof that the defendant | 24 | | unlawfully obtained the victim's property shall be
by a | 25 | | preponderance of the evidence. This subsection shall be | 26 | | operative
whether or not the defendant has been convicted of |
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| 1 | | the 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 | 4 | | changing 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 | 8 | | the Criminal
Code of 1961 or of Section 11-501 of the Illinois | 9 | | Vehicle Code in which the person received any injury to his or | 10 | | her person or damage
to his or her real or personal property as | 11 | | a result of the criminal act of the
defendant, the court shall | 12 | | order restitution as provided in this Section. In
all other | 13 | | cases, except cases in which restitution is required under this
| 14 | | Section, the court must at the sentence hearing determine | 15 | | whether restitution
is an appropriate sentence to be imposed on | 16 | | each defendant convicted of an
offense. If the court determines | 17 | | that an order directing the offender to make
restitution is | 18 | | appropriate, the offender may be sentenced to make restitution.
| 19 | | The court may consider restitution an appropriate sentence to | 20 | | be imposed on each defendant convicted of an offense in | 21 | | addition to a sentence of imprisonment. The sentence of the | 22 | | defendant to a term of imprisonment is not a mitigating factor | 23 | | that prevents the court from ordering the defendant to pay | 24 | | restitution. If
the offender is sentenced to make restitution |
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| 1 | | the Court shall determine the
restitution as hereinafter set | 2 | | forth:
| 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 |
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| 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 |
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| 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 |
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| 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.
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| 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 |
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| 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 |
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| 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 |
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| 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.
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| 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 |
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| 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 | 4 | | of the sentence imposed for the offense.
| 5 | | A restitution order under this Section is not discharged by | 6 | | the
liquidation of a person's estate by a receiver. A | 7 | | restitution order under
this Section may be enforced in the | 8 | | same manner as judgment liens are
enforced under Article XII of | 9 | | the Code of Civil Procedure.
| 10 | | The provisions of Section 2-1303 of the Code of Civil | 11 | | Procedure,
providing for interest on judgments, apply to | 12 | | judgments for restitution entered
under this Section.
| 13 | | (Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09; | 14 | | 96-1551, eff. 7-1-11.)".
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