State of Illinois
92nd General Assembly
Legislation

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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
12    criminal   act  of  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 same criminal
14        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.

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