State of Illinois
91st General Assembly
Legislation

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91_HB0774

 
                                               LRB9102787RCks

 1        AN ACT to  amend  the  Unified  Code  of  Corrections  by
 2    changing Section 5-5-6.

 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:

 5        Section 5.  The Unified Code of Corrections is amended by
 6    changing Section 5-5-6 as follows:

 7        (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
 8        Sec. 5-5-6.  In all convictions for offenses in violation
 9    of the Criminal Code of 1961 in which the person received any
10    injury to their person or damage to their  real  or  personal
11    property  as  a  result of the criminal act of the defendant,
12    the  court  shall  order  restitution  as  provided  in  this
13    Section.   In  all  other  cases,  except  cases   in   which
14    restitution is required under this Section, the court must at
15    the  sentence  hearing  determine  whether  restitution is an
16    appropriate  sentence  to  be  imposed  on   each   defendant
17    convicted  of  an  offense.   If the court determines that an
18    order  directing  the  offender  to   make   restitution   is
19    appropriate,   the   offender   may   be  sentenced  to  make
20    restitution.  If When  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-                LRB9102787RCks
 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.  If a defendant
19        is placed on supervision for, or convicted  of,  domestic
20        battery,   the   defendant   shall  be  required  to  pay
21        restitution to any domestic violence shelter in which the
22        victim and any other family or  household  members  lived
23        because  of  the  domestic  battery.   The  amount of the
24        restitution  shall  equal  the  actual  expenses  of  the
25        domestic violence shelter in providing  housing  and  any
26        other  services  for  the  victim and any other family or
27        household members living at the shelter.  If a  defendant
28        fails to pay restitution in the manner or within the time
29        period  specified  by  the  court, the court may enter an
30        order directing the sheriff to seize any real or personal
31        property of  a  defendant  to  the  extent  necessary  to
32        satisfy  the  order  of  restitution  and  dispose of the
33        property by public sale.  All proceeds from such sale  in
34        excess  of the amount of restitution plus court costs and
 
                            -3-                LRB9102787RCks
 1        the costs of the sheriff in conducting the sale shall  be
 2        paid to the defendant.
 3             (c)  In  cases  where  more  than  one  defendant is
 4        accountable for the same criminal conduct that results in
 5        out-of-pocket expenses,  losses,  damages,  or  injuries,
 6        each defendant shall be ordered to pay restitution in the
 7        amount   of  the  total  actual  out-of-pocket  expenses,
 8        losses, damages, or injuries to  the  victim  proximately
 9        caused  by  the  conduct of all of the defendants who are
10        legally accountable for the offense.
11                  (1)  In no event shall the victim  be  entitled
12             to  recover  restitution  in  excess  of  the actual
13             out-of-pocket   expenses,   losses,   damages,    or
14             injuries,  proximately  caused by the conduct of all
15             of the defendants.
16                  (2)  As between the defendants, the  court  may
17             apportion   the   restitution  that  is  payable  in
18             proportion to each co-defendant's culpability in the
19             commission of the offense.
20                  (3)  In  the  absence  of  a   specific   order
21             apportioning  the  restitution, each defendant shall
22             bear his pro rata share of the restitution.
23                  (4)  As between the defendants, each  defendant
24             shall  be  entitled  to  a pro rata reduction in the
25             total restitution required to be paid to the  victim
26             for   amounts   of   restitution  actually  paid  by
27             co-defendants, and defendants who  shall  have  paid
28             more  than their pro rata share shall be entitled to
29             refunds to be computed by the  court  as  additional
30             amounts are paid by co-defendants.
31             (d)  In  instances  where  a defendant has more than
32        one criminal charge pending against him in a single case,
33        or more than one case, and the defendant stands convicted
34        of one or more charges, a plea  agreement  negotiated  by
 
                            -4-                LRB9102787RCks
 1        the  State's  Attorney and the defendants may require the
 2        defendant to make restitution to victims of charges  that
 3        have  been  dismissed or which it is contemplated will be
 4        dismissed under the terms  of  the  plea  agreement,  and
 5        under  the  agreement, the court may impose a sentence of
 6        restitution  on  the  charge  or  charges  of  which  the
 7        defendant has  been  convicted  that  would  require  the
 8        defendant   to  make  restitution  to  victims  of  other
 9        offenses as provided in the plea agreement.
10             (e)  The court may require the  defendant  to  apply
11        the  balance  of  the  cash  bond, after payment of court
12        costs, and any fine that may be imposed to the payment of
13        restitution.
14             (f)  Taking into consideration the  ability  of  the
15        defendant  to  pay,  the  court  shall  determine whether
16        restitution shall be paid  in  a  single  payment  or  in
17        installments,  and  shall  fix  a  period  of time not in
18        excess   of   5   years,   not   including   periods   of
19        incarceration, within which payment of restitution is  to
20        be paid in full. However, if the court deems it necessary
21        and  in  the  best  interest of the victim, the court may
22        extend beyond 5 years the period of time within which the
23        payment of restitution is to be paid. If the defendant is
24        ordered to pay restitution  and  the  court  orders  that
25        restitution  is  to  be paid over a period greater than 6
26        months, the court shall order  that  the  defendant  make
27        monthly payments; the court may waive this requirement of
28        monthly  payments  only if there is a specific finding of
29        good cause for waiver.
30             (g)  The court shall,  after  determining  that  the
31        defendant  has  the ability to pay, require the defendant
32        to pay for the victim's counseling services if:
33                  (1)  the defendant was convicted of an  offense
34             under   Sections  11-19.2,  11-20.1,  12-13,  12-14,
 
                            -5-                LRB9102787RCks
 1             12-14.1, 12-15 or 12-16  of  the  Criminal  Code  of
 2             1961,  or  was  charged with such an offense and the
 3             charge was reduced to another charge as a result  of
 4             a  plea  agreement  under  subsection  (d)  of  this
 5             Section, and
 6                  (2)  the  victim  was  under 18 years of age at
 7             the time the  offense  was  committed  and  requires
 8             counseling as a result of the offense.
 9             The  payments  shall be made by the defendant to the
10        clerk of the circuit court and transmitted by  the  clerk
11        to  the  appropriate  person or agency as directed by the
12        court.  The order may require such payments  to  be  made
13        for  a period not to exceed 5 years after sentencing, not
14        including periods of incarceration.
15             (h)  The judge may enter an order of withholding  to
16        collect the amount of restitution owed in accordance with
17        Part 8 of Article XII of the Code of Civil Procedure.
18             (i)  A  sentence  of  restitution may be modified or
19        revoked by the court  if  the  offender  commits  another
20        offense,  or  the  offender  fails to make restitution as
21        ordered by the court, but no sentence to make restitution
22        shall be revoked unless the court  shall  find  that  the
23        offender   has   had   the   financial  ability  to  make
24        restitution, and he has wilfully refused to  do  so.   If
25        the  court  shall  find  that the defendant has failed to
26        make restitution and that the failure is not wilful,  the
27        court  may  impose  an  additional  period of time within
28        which to make restitution.  The length of the  additional
29        period  shall  not be more than 2 years.  The court shall
30        retain all of the incidents  of  the  original  sentence,
31        including   the   authority  to  modify  or  enlarge  the
32        conditions, and to revoke or further modify the  sentence
33        if  the  conditions  of  payment  are violated during the
34        additional period.
 
                            -6-                LRB9102787RCks
 1             (j)  The procedure upon the filing of a Petition  to
 2        Revoke  a  sentence to make restitution shall be the same
 3        as the procedures set forth in Section 5-6-4 of this Code
 4        governing  violation,  modification,  or  revocation   of
 5        Probation, of Conditional Discharge, or of Supervision.
 6             (k)  Nothing   contained   in   this  Section  shall
 7        preclude the right of any party to  proceed  in  a  civil
 8        action  to  recover  for  any damages incurred due to the
 9        criminal misconduct of the defendant.
10             (l)  Restitution ordered under  this  Section  shall
11        not be subject to disbursement by the circuit clerk under
12        Section 27.5 of the Clerks of Courts Act.
13             (m)  A  restitution  order  under  this Section is a
14        judgment lien in favor of the victim that:
15                  (1)  Attaches to the  property  of  the  person
16             subject to the order;
17                  (2)  May  be  perfected  in  the same manner as
18             provided in Part 3  of  Article  9  of  the  Uniform
19             Commercial Code;
20                  (3)  May  be  enforced  to  satisfy any payment
21             that is delinquent under the  restitution  order  by
22             the person in whose favor the order is issued or the
23             person's assignee; and
24                  (4)  Expires  in  the same manner as a judgment
25             lien created in a civil proceeding.
26             When  a  restitution  order  is  issued  under  this
27        Section, the issuing court shall send a certified copy of
28        the order to the clerk of the circuit court in the county
29        where the charge was filed.  Upon  receiving  the  order,
30        the  clerk shall enter and index the order in the circuit
31        court judgment docket.
32             (n)  An order of restitution under this Section does
33        not bar a civil action for:
34                  (1)  Damages that the court did not require the
 
                            -7-                LRB9102787RCks
 1             person to pay to the victim  under  the  restitution
 2             order  but  arise from an injury or property damages
 3             that is the basis  of  restitution  ordered  by  the
 4             court; and
 5                  (2)  Other damages suffered by the victim.
 6        The restitution order is not discharged by the completion
 7    of the sentence imposed for the offense.
 8        A  restitution order under this Section is not discharged
 9    by the liquidation of a person's estate  by  a  receiver.   A
10    restitution  order  under this Section may be enforced in the
11    same manner as judgment liens are enforced under Article  XII
12    of the Code of Civil Procedure.
13        The  provisions  of  Section  2-1303 of the Code of Civil
14    Procedure, providing for  interest  on  judgments,  apply  to
15    judgments for restitution entered under this Section.
16    (Source: P.A.  89-198,  eff.  7-21-95;  89-203, eff. 7-21-95;
17    89-428, eff. 12-13-95; 89-462,  eff.  5-29-96;  89-689,  eff.
18    12-31-96; 90-465, eff. 1-1-98.)

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