Public Act 096-0290
Public Act 0290 96TH GENERAL ASSEMBLY
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Public Act 096-0290
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| HB2650 Enrolled |
LRB096 08947 RLC 19085 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Unified Code of Corrections is amended by | changing Section 5-5-6 as follows:
| (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| Sec. 5-5-6. In all convictions for offenses in violation of | the Criminal
Code of 1961 or of Section 11-501 of the Illinois | Vehicle Code in which the person received any injury to his or | her their person or damage
to his or her their real or personal | property as a result of the criminal act of the
defendant, the | court shall order restitution as provided in this Section. In
| all other cases, except cases in which restitution is required | under this
Section, the court must at the sentence hearing | determine whether restitution
is an appropriate sentence to be | imposed on each defendant convicted of an
offense. If the court | determines that an order directing the offender to make
| restitution is appropriate, the offender may be sentenced to | make restitution.
The court may consider restitution an | appropriate sentence to be imposed on each defendant convicted | of an offense in addition to a sentence of imprisonment. The | sentence of the defendant to a term of imprisonment is not a | mitigating factor that prevents the court from ordering the |
| defendant to pay restitution. If
the offender is sentenced to | make restitution the Court shall determine the
restitution as | hereinafter set forth:
| (a) At the sentence hearing, the court shall determine | whether the
property
may be restored in kind to the | possession of the owner or the person entitled
to | possession thereof; or whether the defendant is possessed | of sufficient
skill to repair and restore property damaged; | or whether the defendant should
be required to make | restitution in cash, for out-of-pocket expenses, damages,
| losses, or injuries found to have been proximately caused | by the conduct
of the defendant or another for whom the | defendant is legally accountable
under the provisions of | Article V of the Criminal Code of 1961.
| (b) In fixing the amount of restitution to be paid in | cash, the court
shall allow credit for property returned in | kind, for property damages ordered
to be repaired by the | defendant, and for property ordered to be restored
by the | defendant; and after granting the credit, the court shall | assess
the actual out-of-pocket expenses, losses, damages, | and injuries suffered
by the victim named in the charge and | any other victims who may also have
suffered out-of-pocket | expenses, losses, damages, and injuries proximately
caused | by the same criminal conduct of the defendant, and | insurance
carriers who have indemnified the named victim or | other victims for the
out-of-pocket expenses, losses, |
| damages, or injuries, provided that in no
event shall | restitution be ordered to be paid on account of pain and
| suffering. If a defendant is placed on supervision for, or | convicted of,
domestic battery, the defendant shall be | required to pay restitution to any
domestic violence | shelter in which the victim and any other family or | household
members lived because of the domestic battery. | The amount of the restitution
shall equal the actual | expenses of the domestic violence shelter in providing
| housing and any other services for the victim and any other | family or household
members living at the shelter. If a | defendant fails to pay restitution in
the manner or within
| the time period specified by the court, the court may enter | an order
directing the sheriff to seize any real or | personal property of a defendant
to the extent necessary to | satisfy the order of restitution and dispose of
the | property by public sale. All proceeds from such sale in | excess of the
amount of restitution plus court costs and | the costs of the sheriff in
conducting the sale shall be | paid to the defendant. The defendant convicted of
domestic | battery, if a person under 18 years of age was present and | witnessed the domestic battery of the
victim, is liable to | pay restitution for the cost of any counseling required
for
| the child at the discretion of the court.
| (c) In cases where more than one defendant is | accountable for the same
criminal conduct that results in |
| out-of-pocket expenses, losses, damages,
or injuries, each | defendant shall be ordered to pay restitution in the amount
| of the total actual out-of-pocket expenses, losses, | damages, or injuries
to the victim proximately caused by | the conduct of all of the defendants
who are legally | accountable for the offense.
| (1) In no event shall the victim be entitled to | recover restitution in
excess of the actual | out-of-pocket expenses, losses, damages, or injuries,
| proximately caused by the conduct of all of the | defendants.
| (2) As between the defendants, the court may | apportion the restitution
that is payable in | proportion to each co-defendant's culpability in the
| commission of the offense.
| (3) In the absence of a specific order apportioning | the restitution,
each defendant shall bear his pro rata | share of the restitution.
| (4) As between the defendants, each defendant | shall be entitled to a pro
rata reduction in the total | restitution required to be paid to the victim
for | amounts of restitution actually paid by co-defendants, | and defendants
who shall have paid more than their pro | rata share shall be entitled to
refunds to be computed | by the court as additional amounts are
paid by | co-defendants.
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| (d) In instances where a defendant has more than one | criminal charge
pending
against him in a single case, or | more than one case, and the defendant stands
convicted of | one or more charges, a plea agreement negotiated by the | State's
Attorney and the defendants may require the | defendant to make restitution
to victims of charges that | have been dismissed or which it is contemplated
will be | dismissed under the terms of the plea agreement, and under | the
agreement, the court may impose a sentence of | restitution on the charge
or charges of which the defendant | has been convicted that would require
the defendant to make | restitution to victims of other offenses as provided
in the | plea agreement.
| (e) The court may require the defendant to apply the | balance of the cash
bond, after payment of court costs, and | any fine that may be imposed to
the payment of restitution.
| (f) Taking into consideration the ability of the | defendant to pay, including any real or personal property | or any other assets of the defendant,
the court shall | determine whether restitution shall be paid in a single
| payment or in installments, and shall fix a period of time | not in excess
of 5 years or the period of time specified in | subsection (f-1), not including periods of incarceration, | within which payment of
restitution is to be paid in full.
| Complete restitution shall be paid in as short a time | period as possible.
However, if the court deems it |
| necessary and in the best interest of the
victim, the court | may extend beyond 5 years the period of time within which | the
payment of restitution is to be paid.
If the defendant | is ordered to pay restitution and the court orders that
| restitution is to be paid over a period greater than 6 | months, the court
shall order that the defendant make | monthly payments; the court may waive
this requirement of | monthly payments only if there is a specific finding of
| good cause for waiver.
| (f-1)(1) In addition to any other penalty prescribed by | law and any restitution ordered under this Section that did | not include long-term physical health care costs, the court | may, upon conviction of any misdemeanor or felony, order a | defendant to pay restitution to a victim in accordance with | the provisions of this subsection (f-1) if the victim has | suffered physical injury as a result of the offense that is | reasonably probable to require or has required long-term | physical health care for more than 3 months. As used in | this subsection (f-1) "long-term physical health care" | includes mental health care.
| (2) The victim's estimate of long-term physical health | care costs may be made as part of a victim impact statement | under Section 6 of the Rights of Crime Victims and | Witnesses Act or made separately. The court shall enter the | long-term physical health care restitution order at the | time of sentencing. An order of restitution made under this |
| subsection (f-1) shall fix a monthly amount to be paid by | the defendant for as long as long-term physical health care | of the victim is required as a result of the offense. The | order may exceed the length of any sentence imposed upon | the defendant for the criminal activity. The court shall | include as a special finding in the judgment of conviction | its determination of the monthly cost of long-term physical | health care.
| (3) After a sentencing order has been entered, the | court may from time to time, on the petition of either the | defendant or the victim, or upon its own motion, enter an | order for restitution for long-term physical care or modify | the existing order for restitution for long-term physical | care as to the amount of monthly payments. Any modification | of the order shall be based only upon a substantial change | of circumstances relating to the cost of long-term physical | health care or the financial condition of either the | defendant or the victim. The petition shall be filed as | part of the original criminal docket.
| (g) In addition to the sentences provided for in | Sections 11-19.2, 11-20.1, 12-13,
12-14, 12-14.1, 12-15, | and 12-16 of the Criminal Code of 1961, the court may
order | any person who is convicted of violating any of those | Sections or who was charged with any of those offenses and | which charge was reduced to another charge as a result of a | plea agreement under subsection (d) of this Section to meet
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| all or any portion of the financial obligations of | treatment, including but not
limited to medical, | psychiatric, or rehabilitative treatment or psychological | counseling,
prescribed for the victim or victims of the | offense.
| The payments shall be made by the defendant to the | clerk of the circuit
court
and transmitted by the clerk to | the appropriate person or agency as directed by
the court. | Except as otherwise provided in subsection (f-1), the
order | may require such payments to be made for a period not to
| exceed 5 years after sentencing, not including periods of | incarceration.
| (h) The judge may enter an order of withholding to | collect the amount
of restitution owed in accordance with | Part 8 of Article XII of the Code of
Civil Procedure.
| (i) A sentence of restitution may be modified or | revoked by the court
if the offender commits another | offense, or the offender fails to make
restitution as | ordered by the court, but no sentence to make restitution
| shall be revoked unless the court shall find that the | offender has had the
financial ability to make restitution, | and he has wilfully refused to do
so. When the offender's | ability to pay restitution was established at the time
an | order of restitution was entered or modified, or when the | offender's ability
to pay was based on the offender's | willingness to make restitution as part of a
plea agreement |
| made at the time the order of restitution was entered or
| modified, there is a rebuttable presumption that the facts | and circumstances
considered by the court at the hearing at | which the order of restitution was
entered or modified | regarding the offender's ability or willingness to pay
| restitution have not materially changed. If the court shall | find that the
defendant has failed to make
restitution and | that the failure is not wilful, the court may impose an
| additional period of time within which to make restitution. | The length of
the additional period shall not be more than | 2 years. The court shall
retain all of the incidents of the | original sentence, including the
authority to modify or | enlarge the conditions, and to revoke or further
modify the | sentence if the conditions of payment are violated during | the
additional period.
| (j) The procedure upon the filing of a Petition to | Revoke a sentence to
make restitution shall be the same as | the procedures set forth in Section
5-6-4 of this Code | governing violation, modification, or revocation of
| Probation, of Conditional Discharge, or of Supervision.
| (k) Nothing contained in this Section shall preclude | the right of any
party to proceed in a civil action to | recover for any damages incurred due
to the criminal | misconduct of the defendant.
| (l) Restitution ordered under this Section shall not be
| subject to disbursement by the circuit clerk under Section |
| 27.5 of the
Clerks of Courts Act.
| (m) A restitution order under this Section is a | judgment lien in favor
of
the victim that:
| (1) Attaches to the property of the person subject | to the order;
| (2) May be perfected in the same manner as provided | in Part 3 of Article
9 of the Uniform Commercial Code;
| (3) May be enforced to satisfy any payment that is | delinquent under the
restitution order by the person in | whose favor the order is issued or the
person's | assignee; and
| (4) Expires in the same manner as a judgment lien | created in a civil
proceeding.
| When a restitution order is issued under this Section, | the issuing court
shall send a certified copy of the order | to the clerk of the circuit court
in the county where the | charge was filed. Upon receiving the order, the
clerk shall | enter and index the order in the circuit court judgment | docket.
| (n) An order of restitution under this Section does not | bar
a civil action for:
| (1) Damages that the court did not require the | person to pay to the
victim under the restitution order | but arise from an injury or property
damages that is | the basis of restitution ordered by the court; and
| (2) Other damages suffered by the victim.
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| The restitution order is not discharged by the
completion | of the sentence imposed for the offense.
| A restitution order under this Section is not discharged by | the
liquidation of a person's estate by a receiver. A | restitution order under
this Section may be enforced in the | same manner as judgment liens are
enforced under Article XII of | the Code of Civil Procedure.
| The provisions of Section 2-1303 of the Code of Civil | Procedure,
providing for interest on judgments, apply to | judgments for restitution entered
under this Section.
| (Source: P.A. 94-148, eff. 1-1-06; 94-397, eff. 1-1-06; 95-331, | eff. 8-21-07.)
| Section 99. Effective date. This Act takes effect upon | becoming law.
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Effective Date: 8/11/2009
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