Illinois General Assembly - Full Text of Public Act 094-0148
Illinois General Assembly

Previous General Assemblies

Public Act 094-0148


 

Public Act 0148 94TH GENERAL ASSEMBLY



 


 
Public Act 094-0148
 
HB3449 Enrolled LRB094 09070 RLC 39294 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Criminal Code of 1961 is amended by changing
Section 12-3.2 as follows:
 
    (720 ILCS 5/12-3.2)  (from Ch. 38, par. 12-3.2)
    Sec. 12-3.2. Domestic Battery.
    (a) A person commits domestic battery if he intentionally
or knowingly without legal justification by any means:
        (1) Causes bodily harm to any family or household
    member as defined in subsection (3) of Section 112A-3 of
    the Code of Criminal Procedure of 1963, as amended;
        (2) Makes physical contact of an insulting or provoking
    nature with any family or household member as defined in
    subsection (3) of Section 112A-3 of the Code of Criminal
    Procedure of 1963, as amended.
    (b) Sentence. Domestic battery is a Class A misdemeanor.
Domestic battery is a Class 4 felony if the defendant has any
prior conviction under this Code for domestic battery (Section
12-3.2) or violation of an order of protection (Section 12-30),
or any prior conviction under the law of another jurisdiction
for an offense which is substantially similar. Domestic battery
is a Class 4 felony if the defendant has any prior conviction
under this Code for first degree murder (Section 9-1), attempt
to commit first degree murder (Section 8-4), aggravated
domestic battery (Section 12-3.3), aggravated battery (Section
12-4), heinous battery (Section 12-4.1), aggravated battery
with a firearm (Section 12-4.2), aggravated battery of a child
(Section 12-4.3), aggravated battery of an unborn child
(Section 12-4.4), aggravated battery of a senior citizen
(Section 12-4.6), stalking (Section 12-7.3), aggravated
stalking (Section 12-7.4), criminal sexual assault (Section
12-13), aggravated criminal sexual assault (12-14), kidnapping
(Section 10-1), aggravated kidnapping (Section 10-2),
predatory criminal sexual assault of a child (Section 12-14.1),
aggravated criminal sexual abuse (Section 12-16), unlawful
restraint (Section 10-3), aggravated unlawful restraint
(Section 10-3.1), aggravated arson (Section 20-1.1), or
aggravated discharge of a firearm (Section 24-1.2), or any
prior conviction under the law of another jurisdiction for any
offense that is substantially similar to the offenses listed in
this Section, when any of these offenses have been committed
against a family or household member as defined in Section
112A-3 of the Code of Criminal Procedure of 1963. In addition
to any other sentencing alternatives, for any second or
subsequent conviction of violating this Section, the offender
shall be mandatorily sentenced to a minimum of 72 consecutive
hours of imprisonment. The imprisonment shall not be subject to
suspension, nor shall the person be eligible for probation in
order to reduce the sentence.
    (c) Domestic battery committed in the presence of a child.
In addition to any other sentencing alternatives, a defendant
who commits, in the presence of a child, a felony domestic
battery (enhanced under subsection (b)), aggravated domestic
battery (Section 12-3.3), aggravated battery (Section 12-4),
unlawful restraint (Section 10-3), or aggravated unlawful
restraint (Section 10-3.1) against a family or household
member, as defined in Section 112A-3 of the Code of Criminal
Procedure of 1963, shall be required to serve a mandatory
minimum imprisonment of 10 days or perform 300 hours of
community service, or both. The defendant shall further be
liable for the cost of any counseling required for the child at
the discretion of the court in accordance with subsection (b)
of Section 5-5-6 of the Unified Code of Corrections. For
purposes of this Section, "child" means a person under 18 16
years of age who is the defendant's or victim's child or
step-child or who is a minor child residing within or visiting
the household of the defendant or victim. For purposes of this
Section, "in the presence of a child" means in the physical
presence of a child or knowing or having reason to know that a
child is present and may see or hear an act constituting one of
the offenses listed in this subsection.
(Source: P.A. 92-16, eff. 6-28-01; 92-827, eff. 8-22-02; P.A.
93-336, eff. 1-1-04; 93-809, eff. 1-1-05.)
 
    Section 10. 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 in which the person received any
injury to their person or damage to 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. 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 who is the child
    of the offender or of the victim 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.
        (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, 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, 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.
        (g) The court shall, after determining that the
    defendant has the ability to pay, require the defendant to
    pay for the victim's counseling services if:
            (1) the defendant was convicted of an offense under
        Sections 11-19.2, 11-20.1, 12-13, 12-14, 12-14.1,
        12-15 or 12-16 of the Criminal Code of 1961, or was
        charged with such an offense and the charge was reduced
        to another charge as a result of a plea agreement under
        subsection (d) of this Section, and
            (2) the victim was under 18 years of age at the
        time the offense was committed and requires counseling
        as a result 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.
    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.
    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. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00; 91-420,
eff. 1-1-00; 92-16, eff. 6-28-01.)

Effective Date: 1/1/2006