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92_HB5837 LRB9214764RCsbA 1 AN ACT in relation to criminal law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 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 Sec. 5-5-6. Restitution. In all convictions for 8 offenses in violation of the Criminal Code of 1961 and 9 Section 11-503 of the Illinois Vehicle Code in which the 10 person received any injury to their person or damage to their 11 real or personal property as a result of the defendant's 12criminalactof the defendant, the court shall order 13 restitution as provided in this Section. In all other cases, 14 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 17 on each defendant convicted of an offense. If the court 18 determines that an order directing the offender to make 19 restitution is appropriate, the offender may be sentenced to 20 make restitution. If the offender is sentenced to make 21 restitution the Court shall determine the restitution as 22 hereinafter set forth: 23 (a) At the sentence hearing, the court shall 24 determine whether the property may be restored in kind to 25 the possession of the owner or the person entitled to 26 possession thereof; or whether the defendant is possessed 27 of sufficient skill to repair and restore property 28 damaged; or whether the defendant should be required to 29 make restitution in cash, for out-of-pocket expenses, 30 damages, losses, or injuries found to have been 31 proximately caused by the conduct of the defendant or -2- LRB9214764RCsbA 1 another for whom the defendant is legally accountable 2 under the provisions of Article V of the Criminal Code of 3 1961. 4 (b) In fixing the amount of restitution to be paid 5 in cash, the court shall allow credit for property 6 returned in kind, for property damages ordered to be 7 repaired by the defendant, and for property ordered to be 8 restored by the defendant; and after granting the credit, 9 the court shall assess the actual out-of-pocket expenses, 10 losses, damages, and injuries suffered by the victim 11 named in the charge and any other victims who may also 12 have suffered out-of-pocket expenses, losses, damages, 13 and injuries proximately caused by the samecriminal14 conduct of the defendant, and insurance carriers who have 15 indemnified the named victim or other victims for the 16 out-of-pocket expenses, losses, damages, or injuries, 17 provided that in no event shall restitution be ordered to 18 be paid on account of pain and suffering. The trial 19 court may, in its discretion, order reimbursement of 20 expenses for reasonable security measures incurred by a 21 victim following the commission of the offense. If a 22 defendant is placed on supervision for, or convicted of, 23 domestic battery, the defendant shall be required to pay 24 restitution to any domestic violence shelter in which the 25 victim and any other family or household members lived 26 because of the domestic battery. The amount of the 27 restitution shall equal the actual expenses of the 28 domestic violence shelter in providing housing and any 29 other services for the victim and any other family or 30 household members living at the shelter. If a defendant 31 fails to pay restitution in the manner or within the time 32 period specified by the court, the court may enter an 33 order directing the sheriff to seize any real or personal 34 property of a defendant to the extent necessary to -3- LRB9214764RCsbA 1 satisfy the order of restitution and dispose of the 2 property by public sale. All proceeds from such sale in 3 excess of the amount of restitution plus court costs and 4 the costs of the sheriff in conducting the sale shall be 5 paid to the defendant. The defendant convicted of 6 domestic battery, if a person under 18 years of age who 7 is the child of the offender or of the victim was present 8 and witnessed the domestic battery of the victim, is 9 liable to pay restitution for the cost of any counseling 10 required for the child at the discretion of the court. 11 (c) In cases where more than one defendant is 12 accountable for the same criminal conduct that results in 13 out-of-pocket expenses, losses, damages, or injuries, 14 each defendant shall be ordered to pay restitution in the 15 amount of the total actual out-of-pocket expenses, 16 losses, damages, or injuries to the victim proximately 17 caused by the conduct of all of the defendants who are 18 legally accountable for the offense. 19 (1) In no event shall the victim be entitled 20 to recover restitution in excess of the actual 21 out-of-pocket expenses, losses, damages, or 22 injuries, proximately caused by the conduct of all 23 of the defendants. 24 (2) As between the defendants, the court may 25 apportion the restitution that is payable in 26 proportion to each co-defendant's culpability in the 27 commission of the offense. 28 (3) In the absence of a specific order 29 apportioning the restitution, each defendant shall 30 bear his pro rata share of the restitution. 31 (4) As between the defendants, each defendant 32 shall be entitled to a pro rata reduction in the 33 total restitution required to be paid to the victim 34 for amounts of restitution actually paid by -4- LRB9214764RCsbA 1 co-defendants, and defendants who shall have paid 2 more than their pro rata share shall be entitled to 3 refunds to be computed by the court as additional 4 amounts are paid by co-defendants. 5 (d) In instances where a defendant has more than 6 one criminal charge pending against him in a single case, 7 or more than one case, and the defendant stands convicted 8 of one or more charges, a plea agreement negotiated by 9 the State's Attorney and the defendants may require the 10 defendant to make restitution to victims of charges that 11 have been dismissed or which it is contemplated will be 12 dismissed under the terms of the plea agreement, and 13 under the agreement, the court may impose a sentence of 14 restitution on the charge or charges of which the 15 defendant has been convicted that would require the 16 defendant to make restitution to victims of other 17 offenses as provided in the plea agreement. 18 (e) The court may require the defendant to apply 19 the balance of the cash bond, after payment of court 20 costs, and any fine that may be imposed to the payment of 21 restitution. 22 (f) Taking into consideration the ability of the 23 defendant to pay, the court shall determine whether 24 restitution shall be paid in a single payment or in 25 installments, and shall fix a period of time not in 26 excess of 5 years, not including periods of 27 incarceration, within which payment of restitution is to 28 be paid in full. Complete restitution shall be paid in as 29 short a time period as possible. However, if the court 30 deems it necessary and in the best interest of the 31 victim, the court may extend beyond 5 years the period of 32 time within which the payment of restitution is to be 33 paid. If the defendant is ordered to pay restitution and 34 the court orders that restitution is to be paid over a -5- LRB9214764RCsbA 1 period greater than 6 months, the court shall order that 2 the defendant make monthly payments; the court may waive 3 this requirement of monthly payments only if there is a 4 specific finding of good cause for waiver. 5 (g) The court shall, after determining that the 6 defendant has the ability to pay, require the defendant 7 to pay for the victim's counseling services if: 8 (1) the defendant was convicted of an offense 9 under Sections 11-19.2, 11-20.1, 12-13, 12-14, 10 12-14.1, 12-15 or 12-16 of the Criminal Code of 11 1961, or was charged with such an offense and the 12 charge was reduced to another charge as a result of 13 a plea agreement under subsection (d) of this 14 Section, and 15 (2) the victim was under 18 years of age at 16 the time the offense was committed and requires 17 counseling as a result of the offense. 18 The payments shall be made by the defendant to the 19 clerk of the circuit court and transmitted by the clerk 20 to the appropriate person or agency as directed by the 21 court. The order may require such payments to be made 22 for a period not to exceed 5 years after sentencing, not 23 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. 27 (i) A sentence of restitution may be modified or 28 revoked by the court if the offender commits another 29 offense, or the offender fails to make restitution as 30 ordered by the court, but no sentence to make restitution 31 shall be revoked unless the court shall find that the 32 offender has had the financial ability to make 33 restitution, and he has wilfully refused to do so. When 34 the offender's ability to pay restitution was established -6- LRB9214764RCsbA 1 at the time an order of restitution was entered or 2 modified, or when the offender's ability to pay was based 3 on the offender's willingness to make restitution as part 4 of a plea agreement made at the time the order of 5 restitution was entered or modified, there is a 6 rebuttable presumption that the facts and circumstances 7 considered by the court at the hearing at which the order 8 of restitution was entered or modified regarding the 9 offender's ability or willingness to pay restitution have 10 not materially changed. If the court shall find that the 11 defendant has failed to make restitution and that the 12 failure is not wilful, the court may impose an additional 13 period of time within which to make restitution. The 14 length of the additional period shall not be more than 2 15 years. The court shall retain all of the incidents of 16 the original sentence, including the authority to modify 17 or enlarge the conditions, and to revoke or further 18 modify the sentence if the conditions of payment are 19 violated during the additional period. 20 (j) The procedure upon the filing of a Petition to 21 Revoke a sentence to make restitution shall be the same 22 as the procedures set forth in Section 5-6-4 of this Code 23 governing violation, modification, or revocation of 24 Probation, of Conditional Discharge, or of Supervision. 25 (k) Nothing contained in this Section shall 26 preclude the right of any party to proceed in a civil 27 action to recover for any damages incurred due to the 28 criminal misconduct of the defendant. 29 (l) Restitution ordered under this Section shall 30 not be subject to disbursement by the circuit clerk under 31 Section 27.5 of the Clerks of Courts Act. 32 (m) A restitution order under this Section is a 33 judgment lien in favor of the victim that: 34 (1) Attaches to the property of the person -7- LRB9214764RCsbA 1 subject to the order; 2 (2) May be perfected in the same manner as 3 provided in Part 3 of Article 9 of the Uniform 4 Commercial Code; 5 (3) May be enforced to satisfy any payment 6 that is delinquent under the restitution order by 7 the person in whose favor the order is issued or the 8 person's assignee; and 9 (4) Expires in the same manner as a judgment 10 lien created in a civil proceeding. 11 When a restitution order is issued under this 12 Section, the issuing court shall send a certified copy of 13 the order to the clerk of the circuit court in the county 14 where the charge was filed. Upon receiving the order, 15 the clerk shall enter and index the order in the circuit 16 court judgment docket. 17 (n) An order of restitution under this Section does 18 not bar a civil action for: 19 (1) Damages that the court did not require the 20 person to pay to the victim under the restitution 21 order but arise from an injury or property damages 22 that is the basis of restitution ordered by the 23 court; and 24 (2) Other damages suffered by the victim. 25 The restitution order is not discharged by the completion 26 of the sentence imposed for the offense. 27 A restitution order under this Section is not discharged 28 by the liquidation of a person's estate by a receiver. A 29 restitution order under this Section may be enforced in the 30 same manner as judgment liens are enforced under Article XII 31 of the Code of Civil Procedure. 32 The provisions of Section 2-1303 of the Code of Civil 33 Procedure, providing for interest on judgments, apply to 34 judgments for restitution entered under this Section. -8- LRB9214764RCsbA 1 (Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00; 2 91-420, eff. 1-1-00; 92-16, eff. 6-28-01.) 3 Section 99. Effective date. This Act takes effect upon 4 becoming law.