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




HB1689 EnrolledLRB097 08260 RLC 48386 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 1961 is amended by changing
5Section 17-56 as follows:
6    (720 ILCS 5/17-56)  (was 720 ILCS 5/16-1.3)
7    (This Section may contain text from a Public Act with a
8delayed effective date)
9    Sec. 17-56. Financial exploitation of an elderly person or
10a person with a disability.
11    (a) A person commits financial exploitation of an elderly
12person or a person with a disability when he or she stands in a
13position of trust or confidence with the elderly person or a
14person with a disability and he or she knowingly and by
15deception or intimidation obtains control over the property of
16an elderly person or a person with a disability or illegally
17uses the assets or resources of an elderly person or a person
18with a disability.
19    (b) Sentence. Financial exploitation of an elderly person
20or a person with a disability is: (1) a Class 4 felony if the
21value of the property is $300 or less, (2) a Class 3 felony if
22the value of the property is more than $300 but less than
23$5,000, (3) a Class 2 felony if the value of the property is



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1$5,000 or more but less than $50,000 $100,000, and (4) a Class
21 felony if the value of the property is $50,000 $100,000 or
3more or if the elderly person is over 70 years of age and the
4value of the property is $15,000 or more or if the elderly
5person is 80 years of age or older and the value of the
6property is $5,000 or more.
7    (c) For purposes of this Section:
8        (1) "Elderly person" means a person 60 years of age or
9    older.
10        (2) "Person with a disability" means a person who
11    suffers from a physical or mental impairment resulting from
12    disease, injury, functional disorder or congenital
13    condition that impairs the individual's mental or physical
14    ability to independently manage his or her property or
15    financial resources, or both.
16        (3) "Intimidation" means the communication to an
17    elderly person or a person with a disability that he or she
18    shall be deprived of food and nutrition, shelter,
19    prescribed medication or medical care and treatment.
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
6person or a person with a disability includes, but is not
7limited to, the misappropriation of those assets or resources
8by undue influence, breach of a fiduciary relationship, fraud,
9deception, extortion, or use of the assets or resources
10contrary to law.
11    A person stands in a position of trust and confidence with
12an elderly person or person with a disability when he (i) is a
13parent, spouse, adult child or other relative by blood or
14marriage of the elderly person or person with a disability,
15(ii) is a joint tenant or tenant in common with the elderly
16person or person with a disability, (iii) has a legal or
17fiduciary relationship with the elderly person or person with a
18disability, or (iv) is a financial planning or investment
20    (d) Limitations. Nothing in this Section shall be construed
21to limit the remedies available to the victim under the
22Illinois Domestic Violence Act of 1986.
23    (e) Good faith efforts. Nothing in this Section shall be
24construed to impose criminal liability on a person who has made
25a good faith effort to assist the elderly person or person with
26a disability in the management of his or her property, but



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1through no fault of his or her own has been unable to provide
2such assistance.
3    (f) Not a defense. It shall not be a defense to financial
4exploitation of an elderly person or person with a disability
5that the accused reasonably believed that the victim was not an
6elderly person or person with a disability.
7    (g) Civil Liability. A person who is charged by information
8or indictment with the offense of financial exploitation of an
9elderly person or person with a disability and who fails or
10refuses to return the victim's property within 60 days
11following a written demand from the victim or the victim's
12legal representative shall be liable to the victim or to the
13estate of the victim in damages of treble the amount of the
14value of the property obtained, plus reasonable attorney fees
15and court costs. The burden of proof that the defendant
16unlawfully obtained the victim's property shall be by a
17preponderance of the evidence. This subsection shall be
18operative whether or not the defendant has been convicted of
19the offense.
20(Source: P.A. 95-798, eff. 1-1-09; 96-1551, eff. 7-1-11.)
21    Section 10. The Unified Code of Corrections is amended by
22changing Section 5-5-6 as follows:
23    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
24    (Text of Section after amendment by P.A. 96-1551)



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1    Sec. 5-5-6. In all convictions for offenses in violation of
2the Criminal Code of 1961 or of Section 11-501 of the Illinois
3Vehicle Code in which the person received any injury to his or
4her person or damage to his or her real or personal property as
5a result of the criminal act of the defendant, the court shall
6order restitution as provided in this Section. In all other
7cases, except cases in which restitution is required under this
8Section, the court must at the sentence hearing determine
9whether restitution is an appropriate sentence to be imposed on
10each defendant convicted of an offense. If the court determines
11that an order directing the offender to make restitution is
12appropriate, the offender may be sentenced to make restitution.
13The court may consider restitution an appropriate sentence to
14be imposed on each defendant convicted of an offense in
15addition to a sentence of imprisonment. The sentence of the
16defendant to a term of imprisonment is not a mitigating factor
17that prevents the court from ordering the defendant to pay
18restitution. If the offender is sentenced to make restitution
19the Court shall determine the restitution as hereinafter set
21        (a) At the sentence hearing, the court shall determine
22    whether the property may be restored in kind to the
23    possession of the owner or the person entitled to
24    possession thereof; or whether the defendant is possessed
25    of sufficient skill to repair and restore property damaged;
26    or whether the defendant should be required to make



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1    restitution in cash, for out-of-pocket expenses, damages,
2    losses, or injuries found to have been proximately caused
3    by the conduct of the defendant or another for whom the
4    defendant is legally accountable under the provisions of
5    Article V of the Criminal Code of 1961.
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. If a defendant is placed on supervision for, or
21    convicted of, domestic battery, the defendant shall be
22    required to pay restitution to any domestic violence
23    shelter in which the victim and any other family or
24    household members lived because of the domestic battery.
25    The amount of the restitution shall equal the actual
26    expenses of the domestic violence shelter in providing



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



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



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1    restitution on the charge or charges of which the defendant
2    has been convicted that would require the defendant to make
3    restitution to victims of other offenses as provided in the
4    plea agreement.
5        (e) The court may require the defendant to apply the
6    balance of the cash bond, after payment of court costs, and
7    any fine that may be imposed to the payment of restitution.
8        (f) Taking into consideration the ability of the
9    defendant to pay, including any real or personal property
10    or any other assets of the defendant, the court shall
11    determine whether restitution shall be paid in a single
12    payment or in installments, and shall fix a period of time
13    not in excess of 5 years, except for violations of Sections
14    16-1.3 and 17-56 of the Criminal Code of 1961, or the
15    period of time specified in subsection (f-1), not including
16    periods of incarceration, within which payment of
17    restitution is to be paid in full. Complete restitution
18    shall be paid in as short a time period as possible.
19    However, if the court deems it necessary and in the best
20    interest of the victim, the court may extend beyond 5 years
21    the period of time within which the payment of restitution
22    is to be paid. If the defendant is ordered to pay
23    restitution and the court orders that restitution is to be
24    paid over a period greater than 6 months, the court shall
25    order that the defendant make monthly payments; the court
26    may waive this requirement of monthly payments only if



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



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1        (3) After a sentencing order has been entered, the
2    court may from time to time, on the petition of either the
3    defendant or the victim, or upon its own motion, enter an
4    order for restitution for long-term physical care or modify
5    the existing order for restitution for long-term physical
6    care as to the amount of monthly payments. Any modification
7    of the order shall be based only upon a substantial change
8    of circumstances relating to the cost of long-term physical
9    health care or the financial condition of either the
10    defendant or the victim. The petition shall be filed as
11    part of the original criminal docket.
12        (g) In addition to the sentences provided for in
13    Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
14    11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
15    12-14.1, 12-15, and 12-16, and subdivision (a)(4) of
16    Section 11-14.4, of the Criminal Code of 1961, the court
17    may order any person who is convicted of violating any of
18    those Sections or who was charged with any of those
19    offenses and which charge was reduced to another charge as
20    a result of a plea agreement under subsection (d) of this
21    Section to meet all or any portion of the financial
22    obligations of treatment, including but not limited to
23    medical, psychiatric, or rehabilitative treatment or
24    psychological counseling, prescribed for the victim or
25    victims of the offense.
26        The payments shall be made by the defendant to the



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1    clerk of the circuit court and transmitted by the clerk to
2    the appropriate person or agency as directed by the court.
3    Except as otherwise provided in subsection (f-1), the order
4    may require such payments to be made for a period not to
5    exceed 5 years after sentencing, not including periods of
6    incarceration.
7        (h) The judge may enter an order of withholding to
8    collect the amount of restitution owed in accordance with
9    Part 8 of Article XII of the Code of Civil Procedure.
10        (i) A sentence of restitution may be modified or
11    revoked by the court if the offender commits another
12    offense, or the offender fails to make restitution as
13    ordered by the court, but no sentence to make restitution
14    shall be revoked unless the court shall find that the
15    offender has had the financial ability to make restitution,
16    and he has wilfully refused to do so. When the offender's
17    ability to pay restitution was established at the time an
18    order of restitution was entered or modified, or when the
19    offender's ability to pay was based on the offender's
20    willingness to make restitution as part of a plea agreement
21    made at the time the order of restitution was entered or
22    modified, there is a rebuttable presumption that the facts
23    and circumstances considered by the court at the hearing at
24    which the order of restitution was entered or modified
25    regarding the offender's ability or willingness to pay
26    restitution have not materially changed. If the court shall



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1    find that the defendant has failed to make restitution and
2    that the failure is not wilful, the court may impose an
3    additional period of time within which to make restitution.
4    The length of the additional period shall not be more than
5    2 years. The court shall retain all of the incidents of the
6    original sentence, including the authority to modify or
7    enlarge the conditions, and to revoke or further modify the
8    sentence if the conditions of payment are violated during
9    the additional period.
10        (j) The procedure upon the filing of a Petition to
11    Revoke a sentence to make restitution shall be the same as
12    the procedures set forth in Section 5-6-4 of this Code
13    governing violation, modification, or revocation of
14    Probation, of Conditional Discharge, or of Supervision.
15        (k) Nothing contained in this Section shall preclude
16    the right of any party to proceed in a civil action to
17    recover for any damages incurred due to the criminal
18    misconduct of the defendant.
19        (l) Restitution ordered under this Section shall not be
20    subject to disbursement by the circuit clerk under Section
21    27.5 of the Clerks of Courts Act.
22        (m) A restitution order under this Section is a
23    judgment lien in favor of the victim that:
24            (1) Attaches to the property of the person subject
25        to the order;
26            (2) May be perfected in the same manner as provided



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



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1the Code of Civil Procedure.
2    The provisions of Section 2-1303 of the Code of Civil
3Procedure, providing for interest on judgments, apply to
4judgments for restitution entered under this Section.
5(Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09;
696-1551, eff. 7-1-11.)