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91_HB0774enr HB0774 Enrolled 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. IfWhenthe 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 HB0774 Enrolled -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 HB0774 Enrolled -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 HB0774 Enrolled -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, HB0774 Enrolled -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. HB0774 Enrolled -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 HB0774 Enrolled -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.)