Full Text of HB3529 99th General Assembly
HB3529ham003 99TH GENERAL ASSEMBLY | Rep. Tom Demmer Filed: 4/20/2015
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| 1 | | AMENDMENT TO HOUSE BILL 3529
| 2 | | AMENDMENT NO. ______. Amend House Bill 3529, AS AMENDED, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Criminal Code of 2012 is amended by | 6 | | changing Section 17-56 as follows:
| 7 | | (720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
| 8 | | Sec. 17-56. Financial exploitation of an elderly person or | 9 | | a
person with a disability.
| 10 | | (a) A person commits financial exploitation of an elderly
| 11 | | person or a person with a disability when he or she stands in a
| 12 | | position of trust
or confidence with the
elderly person or a | 13 | | person with a disability
and he
or she knowingly and by
| 14 | | deception or
intimidation obtains control over the property of | 15 | | an elderly person or
a person
with a disability
or illegally | 16 | | uses the assets or resources of an elderly person or a
person |
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| 1 | | with a disability.
| 2 | | (a-5) A person commits financial exploitation of an elderly | 3 | | person or a person with a disability when he or she assumes the | 4 | | responsibility of managing the financial affairs of an elderly | 5 | | person who is a resident of a facility licensed under the | 6 | | Nursing Home Care Act or a person with a disability who is a | 7 | | resident of a facility licensed under the Nursing Home Care Act | 8 | | and fails to pay for the facility care of the elderly person or | 9 | | person with a disability from the assets and income of the | 10 | | elderly person or person with a disability which are identified | 11 | | as above the allowable limits required under 89 Ill. Adm. Code | 12 | | 120.61 for the purposes of meeting long term care Medicaid | 13 | | eligibility requirements for medical assistance. For purposes | 14 | | of this subsection (a-5), a person assumes the responsibility | 15 | | of managing the financial affairs of an elderly person or a | 16 | | person with a disability when he or she receives, has access | 17 | | to, handles, or controls the funds of the elderly person or | 18 | | person with a disability, including, but not limited to, | 19 | | benefits under the federal Social Security Act, pension, cash, | 20 | | or other income. | 21 | | (b) Sentence. Financial exploitation of an elderly person | 22 | | or a person
with a
disability is: (1) a Class 4
felony if the | 23 | | value of the property is $300 or less, (2) a Class 3 felony if
| 24 | | the value of the property is more than $300 but less than | 25 | | $5,000, (3) a Class 2
felony if the value of the property is | 26 | | $5,000 or more but less than
$50,000, and (4) a Class 1 felony |
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| 1 | | if the value of the property is $50,000 or more
or if the | 2 | | elderly person is over 70 years of age and the value of the
| 3 | | property is $15,000 or more or if the elderly person is 80 | 4 | | years of age or
older and the value of the property is $5,000 | 5 | | or more.
| 6 | | (c) For purposes of this Section:
| 7 | | (1) "Elderly person" means a person 60
years of age or | 8 | | older.
| 9 | | (2) "Person with a disability" means a person who
| 10 | | suffers from a physical or mental impairment resulting from
| 11 | | disease, injury, functional disorder or congenital | 12 | | condition that impairs the
individual's mental or physical | 13 | | ability to independently manage his or her
property or | 14 | | financial resources, or both.
| 15 | | (3) "Intimidation" means the communication to an | 16 | | elderly person or a
person with a disability that he or she | 17 | | shall be deprived of food and
nutrition,
shelter, | 18 | | prescribed
medication or medical care and treatment or | 19 | | conduct as provided in Section 12-6 of this Code.
| 20 | | (4) "Deception" means, in addition to its meaning as | 21 | | defined in Section
15-4 of this Code,
a misrepresentation | 22 | | or concealment of material fact
relating to the terms of a | 23 | | contract or agreement entered into with the
elderly person | 24 | | or person with a disability or to the
existing or
| 25 | | pre-existing condition of
any of the property involved in | 26 | | such contract or agreement; or the use or
employment of any |
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| 1 | | misrepresentation, false pretense or false promise in
| 2 | | order to induce, encourage or solicit the elderly person or
| 3 | | person with
a disability to
enter into a contract or | 4 | | agreement.
| 5 | | The illegal use of the assets or resources of an
elderly | 6 | | person or a person with a disability includes, but is not | 7 | | limited
to, the misappropriation of those assets or resources | 8 | | by undue influence,
breach of a fiduciary relationship, fraud, | 9 | | deception, extortion, or
use of the assets or resources | 10 | | contrary to law. | 11 | | A person stands in a position of
trust and confidence with | 12 | | an elderly person or person with a
disability when he (i) is a
| 13 | | parent, spouse, adult child or other relative by blood or | 14 | | marriage of the
elderly person or person with a disability, | 15 | | (ii) is a joint
tenant or
tenant in common with
the elderly | 16 | | person or person with a disability, (iii) has
a legal or
| 17 | | fiduciary relationship
with the elderly person or person with a | 18 | | disability, (iv) is a financial
planning or investment | 19 | | professional, or (v) is a paid or unpaid caregiver for the | 20 | | elderly person or person with a disability.
| 21 | | (d) Limitations. Nothing in this Section shall be construed | 22 | | to limit the remedies
available to the victim under the | 23 | | Illinois Domestic Violence Act of 1986.
| 24 | | (e) Good faith efforts. Nothing in this Section shall be | 25 | | construed to impose criminal
liability on a person who has made | 26 | | a good faith effort to assist the
elderly person or person with |
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| 1 | | a disability in the
management of his or her
property, but | 2 | | through
no fault of his or her own has been unable to provide | 3 | | such assistance.
| 4 | | (f) Not a defense. It shall not be a defense to financial | 5 | | exploitation of an elderly
person or person with a disability | 6 | | that the accused reasonably believed
that the victim was
not an | 7 | | elderly person or person with a disability.
| 8 | | (g) Civil Liability. A person who is charged by information | 9 | | or
indictment with the offense of financial exploitation of an | 10 | | elderly person
or person with a disability and who fails or | 11 | | refuses to return
the victim's property
within 60 days | 12 | | following a written demand from the victim or the victim's
| 13 | | legal representative shall be liable to the victim or to the | 14 | | estate of the
victim in damages of treble the amount of the | 15 | | value of the property
obtained, plus reasonable attorney fees | 16 | | and court costs. The burden of
proof that the defendant | 17 | | unlawfully obtained the victim's property shall be
by a | 18 | | preponderance of the evidence. This subsection shall be | 19 | | operative
whether or not the defendant has been convicted of | 20 | | the offense.
| 21 | | (h) If a person is charged with financial exploitation of | 22 | | an elderly person or a person with a disability that involves | 23 | | the taking or loss of property valued at more than $5,000, a | 24 | | prosecuting attorney may file a petition with the circuit court | 25 | | of the county in which the defendant has been charged to freeze | 26 | | the assets of the defendant in an amount equal to but not |
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| 1 | | greater than the alleged value of lost or stolen property in | 2 | | the defendant's pending criminal proceeding for purposes of | 3 | | restitution to the victim. The burden of proof required to | 4 | | freeze the defendant's assets shall be by a preponderance of | 5 | | the evidence. | 6 | | (i) Evidence of failure to pay for the facility care of an | 7 | | elderly person or person with a disability from the assets and | 8 | | income of the elderly person or person with a disability which | 9 | | are identified as above the allowable limits required under 89 | 10 | | Ill. Adm. Code 120.61 for the purposes of meeting long term | 11 | | care Medicaid eligibility requirements for medical assistance, | 12 | | may include, but is not limited to failure to comply with | 13 | | notification from the Department of Healthcare and Family | 14 | | Services of the requirement to pay from the assets and income | 15 | | of the elderly person or person with a disability which are | 16 | | identified as above the allowable limits required under 89 Ill. | 17 | | Adm. Code 120.61 for the purposes of meeting long term care | 18 | | Medicaid eligibility requirements for medical assistance. | 19 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12; | 20 | | 97-865, eff. 1-1-13.)
| 21 | | Section 10. The Unified Code of Corrections is amended by | 22 | | changing Section 5-5-6 as follows:
| 23 | | (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| 24 | | Sec. 5-5-6. In all convictions for offenses in violation of |
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| 1 | | the Criminal
Code of 1961 or the Criminal Code of 2012 or of | 2 | | Section 11-501 of the Illinois Vehicle Code in which the person | 3 | | received any injury to his or her person or damage
to his or | 4 | | her real or personal property as a result of the criminal act | 5 | | of the
defendant, the court shall order restitution as provided | 6 | | in this Section. In
all other cases, except cases in which | 7 | | restitution is required under this
Section, the court must at | 8 | | the sentence hearing determine whether restitution
is an | 9 | | appropriate sentence to be imposed on each defendant convicted | 10 | | of an
offense. If the court determines that an order directing | 11 | | the offender to make
restitution is appropriate, the offender | 12 | | may be sentenced to make restitution.
The court may consider | 13 | | restitution an appropriate sentence to be imposed on each | 14 | | defendant convicted of an offense in addition to a sentence of | 15 | | imprisonment. The sentence of the defendant to a term of | 16 | | imprisonment is not a mitigating factor that prevents the court | 17 | | from ordering the defendant to pay restitution. If
the offender | 18 | | is sentenced to make restitution the Court shall determine the
| 19 | | restitution as hereinafter set forth:
| 20 | | (a) At the sentence hearing, the court shall determine | 21 | | whether the
property
may be restored in kind to the | 22 | | possession of the owner or the person entitled
to | 23 | | possession thereof; or whether the defendant is possessed | 24 | | of sufficient
skill to repair and restore property damaged; | 25 | | or whether the defendant should
be required to make | 26 | | restitution in cash, for out-of-pocket expenses, damages,
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| 1 | | losses, or injuries found to have been proximately caused | 2 | | by the conduct
of the defendant or another for whom the | 3 | | defendant is legally accountable
under the provisions of | 4 | | Article 5 of the Criminal Code of 1961 or the Criminal Code | 5 | | of 2012.
| 6 | | (b) In fixing the amount of restitution to be paid in | 7 | | cash, the court
shall allow credit for property returned in | 8 | | kind, for property damages ordered
to be repaired by the | 9 | | defendant, and for property ordered to be restored
by the | 10 | | defendant; and after granting the credit, the court shall | 11 | | assess
the actual out-of-pocket expenses, losses, damages, | 12 | | and injuries suffered
by the victim named in the charge and | 13 | | any other victims who may also have
suffered out-of-pocket | 14 | | expenses, losses, damages, and injuries proximately
caused | 15 | | by the same criminal conduct of the defendant, and | 16 | | insurance
carriers who have indemnified the named victim or | 17 | | other victims for the
out-of-pocket expenses, losses, | 18 | | damages, or injuries, provided that in no
event shall | 19 | | restitution be ordered to be paid on account of pain and
| 20 | | suffering. When a victim's out-of-pocket expenses have | 21 | | been paid pursuant to the Crime Victims Compensation Act, | 22 | | the court shall order restitution be paid to the | 23 | | compensation program. If a defendant is placed on | 24 | | supervision for, or convicted of,
domestic battery, the | 25 | | defendant shall be required to pay restitution to any
| 26 | | domestic violence shelter in which the victim and any other |
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| 1 | | family or household
members lived because of the domestic | 2 | | battery. The amount of the restitution
shall equal the | 3 | | actual expenses of the domestic violence shelter in | 4 | | providing
housing and any other services for the victim and | 5 | | any other family or household
members living at the | 6 | | shelter. If a defendant fails to pay restitution in
the | 7 | | manner or within
the time period specified by the court, | 8 | | the court may enter an order
directing the sheriff to seize | 9 | | any real or personal property of a defendant
to the extent | 10 | | necessary to satisfy the order of restitution and dispose | 11 | | of
the property by public sale. All proceeds from such sale | 12 | | in excess of the
amount of restitution plus court costs and | 13 | | the costs of the sheriff in
conducting the sale shall be | 14 | | paid to the defendant. The defendant convicted of
domestic | 15 | | battery, if a person under 18 years of age was present and | 16 | | witnessed the domestic battery of the
victim, is liable to | 17 | | pay restitution for the cost of any counseling required
for
| 18 | | the child at the discretion of the court.
| 19 | | (c) In cases where more than one defendant is | 20 | | accountable for the same
criminal conduct that results in | 21 | | out-of-pocket expenses, losses, damages,
or injuries, each | 22 | | defendant shall be ordered to pay restitution in the amount
| 23 | | of the total actual out-of-pocket expenses, losses, | 24 | | damages, or injuries
to the victim proximately caused by | 25 | | the conduct of all of the defendants
who are legally | 26 | | accountable for the offense.
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| 1 | | (1) In no event shall the victim be entitled to | 2 | | recover restitution in
excess of the actual | 3 | | out-of-pocket expenses, losses, damages, or injuries,
| 4 | | proximately caused by the conduct of all of the | 5 | | defendants.
| 6 | | (2) As between the defendants, the court may | 7 | | apportion the restitution
that is payable in | 8 | | proportion to each co-defendant's culpability in the
| 9 | | commission of the offense.
| 10 | | (3) In the absence of a specific order apportioning | 11 | | the restitution,
each defendant shall bear his pro rata | 12 | | share of the restitution.
| 13 | | (4) As between the defendants, each defendant | 14 | | shall be entitled to a pro
rata reduction in the total | 15 | | restitution required to be paid to the victim
for | 16 | | amounts of restitution actually paid by co-defendants, | 17 | | and defendants
who shall have paid more than their pro | 18 | | rata share shall be entitled to
refunds to be computed | 19 | | by the court as additional amounts are
paid by | 20 | | co-defendants.
| 21 | | (d) In instances where a defendant has more than one | 22 | | criminal charge
pending
against him in a single case, or | 23 | | more than one case, and the defendant stands
convicted of | 24 | | one or more charges, a plea agreement negotiated by the | 25 | | State's
Attorney and the defendants may require the | 26 | | defendant to make restitution
to victims of charges that |
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| 1 | | have been dismissed or which it is contemplated
will be | 2 | | dismissed under the terms of the plea agreement, and under | 3 | | the
agreement, the court may impose a sentence of | 4 | | restitution on the charge
or charges of which the defendant | 5 | | has been convicted that would require
the defendant to make | 6 | | restitution to victims of other offenses as provided
in the | 7 | | plea agreement.
| 8 | | (e) The court may require the defendant to apply the | 9 | | balance of the cash
bond, after payment of court costs, and | 10 | | any fine that may be imposed to
the payment of restitution.
| 11 | | (f) Taking into consideration the ability of the | 12 | | defendant to pay, including any real or personal property | 13 | | or any other assets of the defendant,
the court shall | 14 | | determine whether restitution shall be paid in a single
| 15 | | payment or in installments, and shall fix a period of time | 16 | | not in excess
of 5 years, except for violations of Sections | 17 | | 16-1.3 and 17-56 of the Criminal Code of 1961 or the | 18 | | Criminal Code of 2012, or the period of time specified in | 19 | | subsection (f-1), not including periods of incarceration, | 20 | | within which payment of
restitution is to be paid in full.
| 21 | | Complete restitution shall be paid in as short a time | 22 | | period as possible.
However, if the court deems it | 23 | | necessary and in the best interest of the
victim, the court | 24 | | may extend beyond 5 years the period of time within which | 25 | | the
payment of restitution is to be paid.
If the defendant | 26 | | is ordered to pay restitution and the court orders that
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| 1 | | restitution is to be paid over a period greater than 6 | 2 | | months, the court
shall order that the defendant make | 3 | | monthly payments; the court may waive
this requirement of | 4 | | monthly payments only if there is a specific finding of
| 5 | | good cause for waiver.
| 6 | | (f-1)(1) In addition to any other penalty prescribed by | 7 | | law and any restitution ordered under this Section that did | 8 | | not include long-term physical health care costs, the court | 9 | | may, upon conviction of any misdemeanor or felony, order a | 10 | | defendant to pay restitution to a victim in accordance with | 11 | | the provisions of this subsection (f-1) if the victim has | 12 | | suffered physical injury as a result of the offense that is | 13 | | reasonably probable to require or has required long-term | 14 | | physical health care for more than 3 months. As used in | 15 | | this subsection (f-1) "long-term physical health care" | 16 | | includes mental health care.
| 17 | | (2) The victim's estimate of long-term physical health | 18 | | care costs may be made as part of a victim impact statement | 19 | | under Section 6 of the Rights of Crime Victims and | 20 | | Witnesses Act or made separately. The court shall enter the | 21 | | long-term physical health care restitution order at the | 22 | | time of sentencing. An order of restitution made under this | 23 | | subsection (f-1) shall fix a monthly amount to be paid by | 24 | | the defendant for as long as long-term physical health care | 25 | | of the victim is required as a result of the offense. The | 26 | | order may exceed the length of any sentence imposed upon |
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| 1 | | the defendant for the criminal activity. The court shall | 2 | | include as a special finding in the judgment of conviction | 3 | | its determination of the monthly cost of long-term physical | 4 | | health care.
| 5 | | (3) After a sentencing order has been entered, the | 6 | | court may from time to time, on the petition of either the | 7 | | defendant or the victim, or upon its own motion, enter an | 8 | | order for restitution for long-term physical care or modify | 9 | | the existing order for restitution for long-term physical | 10 | | care as to the amount of monthly payments. Any modification | 11 | | of the order shall be based only upon a substantial change | 12 | | of circumstances relating to the cost of long-term physical | 13 | | health care or the financial condition of either the | 14 | | defendant or the victim. The petition shall be filed as | 15 | | part of the original criminal docket.
| 16 | | (g) In addition to the sentences provided for in | 17 | | Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | 18 | | 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13,
12-14, | 19 | | 12-14.1, 12-15, and 12-16, and subdivision (a)(4) of | 20 | | Section 11-14.4, of the Criminal Code of 1961 or the | 21 | | Criminal Code of 2012, the court may
order any person who | 22 | | is convicted of violating any of those Sections or who was | 23 | | charged with any of those offenses and which charge was | 24 | | reduced to another charge as a result of a plea agreement | 25 | | under subsection (d) of this Section to meet
all or any | 26 | | portion of the financial obligations of treatment, |
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| 1 | | including but not
limited to medical, psychiatric, or | 2 | | rehabilitative treatment or psychological counseling,
| 3 | | prescribed for the victim or victims of the offense.
| 4 | | (g-1) In addition to the sentence provided for in | 5 | | Section 17-56 of the Criminal Code of 2012, the State's | 6 | | Attorney of the county that prosecuted the defendant shall | 7 | | request that the court order a person convicted of | 8 | | financial exploitation of an elderly person or a person | 9 | | with a disability under subsection (a-5) of Section 17-56 | 10 | | of the Criminal Code of 2012, to pay restitution to the | 11 | | facility where the elderly person or a person with a | 12 | | disability resided at the time of the financial | 13 | | exploitation of all amounts that are owed to the facility | 14 | | to pay for the care of the elderly person or a person with | 15 | | a disability. | 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 as otherwise provided in subsection (f-1), the
order | 20 | | may require such payments to be made for a period not to
| 21 | | exceed 5 years after sentencing, not including periods of | 22 | | incarceration.
| 23 | | (h) The judge may enter an order of withholding to | 24 | | collect the amount
of restitution owed in accordance with | 25 | | Part 8 of Article XII of the Code of
Civil Procedure.
| 26 | | (i) A sentence of restitution may be modified or |
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| 1 | | revoked by the court
if the offender commits another | 2 | | offense, or the offender fails to make
restitution as | 3 | | ordered by the court, but no sentence to make restitution
| 4 | | shall be revoked unless the court shall find that the | 5 | | offender has had the
financial ability to make restitution, | 6 | | and he has wilfully refused to do
so. When the offender's | 7 | | ability to pay restitution was established at the time
an | 8 | | order of restitution was entered or modified, or when the | 9 | | offender's ability
to pay was based on the offender's | 10 | | willingness to make restitution as part of a
plea agreement | 11 | | made at the time the order of restitution was entered or
| 12 | | modified, there is a rebuttable presumption that the facts | 13 | | and circumstances
considered by the court at the hearing at | 14 | | which the order of restitution was
entered or modified | 15 | | regarding the offender's ability or willingness to pay
| 16 | | restitution have not materially changed. If the court shall | 17 | | find that the
defendant has failed to make
restitution and | 18 | | that the failure is not wilful, the court may impose an
| 19 | | additional period of time within which to make restitution. | 20 | | The length of
the additional period shall not be more than | 21 | | 2 years. The court shall
retain all of the incidents of the | 22 | | original sentence, including the
authority to modify or | 23 | | enlarge the conditions, and to revoke or further
modify the | 24 | | sentence if the conditions of payment are violated during | 25 | | the
additional period.
| 26 | | (j) The procedure upon the filing of a Petition to |
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| 1 | | Revoke a sentence to
make restitution shall be the same as | 2 | | the procedures set forth in Section
5-6-4 of this Code | 3 | | governing violation, modification, or revocation of
| 4 | | Probation, of Conditional Discharge, or of Supervision.
| 5 | | (k) Nothing contained in this Section shall preclude | 6 | | the right of any
party to proceed in a civil action to | 7 | | recover for any damages incurred due
to the criminal | 8 | | misconduct of the defendant.
| 9 | | (l) Restitution ordered under this Section shall not be
| 10 | | subject to disbursement by the circuit clerk under Section | 11 | | 27.5 of the
Clerks of Courts Act.
| 12 | | (m) A restitution order under this Section is a | 13 | | judgment lien in favor
of
the victim that:
| 14 | | (1) Attaches to the property of the person subject | 15 | | to the order;
| 16 | | (2) May be perfected in the same manner as provided | 17 | | in Part 3 of Article
9 of the Uniform Commercial Code;
| 18 | | (3) May be enforced to satisfy any payment that is | 19 | | delinquent under the
restitution order by the person in | 20 | | whose favor the order is issued or the
person's | 21 | | assignee; and
| 22 | | (4) Expires in the same manner as a judgment lien | 23 | | created in a civil
proceeding.
| 24 | | When a restitution order is issued under this Section, | 25 | | the issuing court
shall send a certified copy of the order | 26 | | to the clerk of the circuit court
in the county where the |
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| 1 | | charge was filed. Upon receiving the order, the
clerk shall | 2 | | enter and index the order in the circuit court judgment | 3 | | docket.
| 4 | | (n) An order of restitution under this Section does not | 5 | | bar
a civil action for:
| 6 | | (1) Damages that the court did not require the | 7 | | person to pay to the
victim under the restitution order | 8 | | but arise from an injury or property
damages that is | 9 | | the basis of restitution ordered by the court; and
| 10 | | (2) Other damages suffered by the victim.
| 11 | | The restitution order is not discharged by the
completion | 12 | | of the sentence imposed for the offense.
| 13 | | A restitution order under this Section is not discharged by | 14 | | the
liquidation of a person's estate by a receiver. A | 15 | | restitution order under
this Section may be enforced in the | 16 | | same manner as judgment liens are
enforced under Article XII of | 17 | | the Code of Civil Procedure.
| 18 | | The provisions of Section 2-1303 of the Code of Civil | 19 | | Procedure,
providing for interest on judgments, apply to | 20 | | judgments for restitution entered
under this Section.
| 21 | | (Source: P.A. 96-290, eff. 8-11-09; 96-1551, eff. 7-1-11; | 22 | | 97-482, eff. 1-1-12; 97-817, eff. 1-1-13; 97-1150, eff. | 23 | | 1-25-13.)".
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