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| [ Introduced ] | [ Senate Amendment 001 ] |
91_HB3929eng HB3929 Engrossed LRB9111973RCmg 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 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 HB3929 Engrossed -2- LRB9111973RCmg 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 HB3929 Engrossed -3- LRB9111973RCmg 1 the costs of the sheriff in conducting the sale shall be 2 paid to the defendant. The defendant convicted of 3 domestic battery, if a person under 18 years of age who 4 is the child of the offender or of the victim was present 5 and witnessed the domestic battery of the victim, is 6 liable to pay restitution for the cost of any counseling 7 required for the child at the discretion of the court. 8 (c) In cases where more than one defendant is 9 accountable for the same criminal conduct that results in 10 out-of-pocket expenses, losses, damages, or injuries, 11 each defendant shall be ordered to pay restitution in the 12 amount of the total actual out-of-pocket expenses, 13 losses, damages, or injuries to the victim proximately 14 caused by the conduct of all of the defendants who are 15 legally accountable for the offense. 16 (1) In no event shall the victim be entitled 17 to recover restitution in excess of the actual 18 out-of-pocket expenses, losses, damages, or 19 injuries, proximately caused by the conduct of all 20 of the defendants. 21 (2) As between the defendants, the court may 22 apportion the restitution that is payable in 23 proportion to each co-defendant's culpability in the 24 commission of the offense. 25 (3) In the absence of a specific order 26 apportioning the restitution, each defendant shall 27 bear his pro rata share of the restitution. 28 (4) As between the defendants, each defendant 29 shall be entitled to a pro rata reduction in the 30 total restitution required to be paid to the victim 31 for amounts of restitution actually paid by 32 co-defendants, and defendants who shall have paid 33 more than their pro rata share shall be entitled to 34 refunds to be computed by the court as additional HB3929 Engrossed -4- LRB9111973RCmg 1 amounts are paid by co-defendants. 2 (d) In instances where a defendant has more than 3 one criminal charge pending against him in a single case, 4 or more than one case, and the defendant stands convicted 5 of one or more charges, a plea agreement negotiated by 6 the State's Attorney and the defendants may require the 7 defendant to make restitution to victims of charges that 8 have been dismissed or which it is contemplated will be 9 dismissed under the terms of the plea agreement, and 10 under the agreement, the court may impose a sentence of 11 restitution on the charge or charges of which the 12 defendant has been convicted that would require the 13 defendant to make restitution to victims of other 14 offenses as provided in the plea agreement. 15 (e) The court may require the defendant to apply 16 the balance of the cash bond, after payment of court 17 costs, and any fine that may be imposed to the payment of 18 restitution. 19 (f) Taking into consideration the ability of the 20 defendant to pay, the court shall determine whether 21 restitution shall be paid in a single payment or in 22 installments, and shall fix a period of time not in 23 excess of 5 years, not including periods of 24 incarceration, within which payment of restitution is to 25 be paid in full. Complete restitution shall be paid in as 26 short a time period as possible. However, if the court 27 deems it necessary and in the best interest of the 28 victim, the court may extend beyond 5 years the period of 29 time within which the payment of restitution is to be 30 paid. If the defendant is ordered to pay restitution and 31 the court orders that restitution is to be paid over a 32 period greater than 6 months, the court shall order that 33 the defendant make monthly payments; the court may waive 34 this requirement of monthly payments only if there is a HB3929 Engrossed -5- LRB9111973RCmg 1 specific finding of good cause for waiver. 2 (g) The court shall, after determining that the 3 defendant has the ability to pay, require the defendant 4 to pay for the victim's counseling services if: 5 (1) the defendant was convicted of an offense 6 under Sections 11-19.2, 11-20.1, 12-13, 12-14, 7 12-14.1, 12-15 or 12-16 of the Criminal Code of 8 1961, or was charged with such an offense and the 9 charge was reduced to another charge as a result of 10 a plea agreement under subsection (d) of this 11 Section, and 12 (2) the victim was under 18 years of age at 13 the time the offense was committed and requires 14 counseling as a result of the offense. 15 The payments shall be made by the defendant to the 16 clerk of the circuit court and transmitted by the clerk 17 to the appropriate person or agency as directed by the 18 court. The order may require such payments to be made 19 for a period not to exceed 5 years after sentencing, not 20 including periods of incarceration. 21 (h) The judge may enter an order of withholding to 22 collect the amount of restitution owed in accordance with 23 Part 8 of Article XII of the Code of Civil Procedure. 24 (i) A sentence of restitution may be modified or 25 revoked by the court if the offender commits another 26 offense, or the offender fails to make restitution as 27 ordered by the court, but no sentence to make restitution 28 shall be revoked unless the court shall find that the 29 offender has had the financial ability to make 30 restitution, and he has wilfully refused to do so. When 31 the offender's ability to pay restitution was established 32 at the time an order of restitution was entered or 33 modified, or when the offender's ability to pay was based 34 on the offender's willingness to make restitution as part HB3929 Engrossed -6- LRB9111973RCmg 1 of a plea agreement made at the time the order of 2 restitution was entered or modified, there is a 3 rebuttable presumption that the facts and circumstances 4 considered by the court at the hearing at which the order 5 of restitution was entered or modified regarding the 6 offender's ability or willingness to pay restitution have 7 not materially changed. If the court shall find that the 8 defendant has failed to make restitution and that the 9 failure is not wilful, the court may impose an additional 10 period of time within which to make restitution. The 11 length of the additional period shall not be more than 2 12 years. The court shall retain all of the incidents of 13 the original sentence, including the authority to modify 14 or enlarge the conditions, and to revoke or further 15 modify the sentence if the conditions of payment are 16 violated during the additional period. 17 (j) The procedure upon the filing of a Petition to 18 Revoke a sentence to make restitution shall be the same 19 as the procedures set forth in Section 5-6-4 of this Code 20 governing violation, modification, or revocation of 21 Probation, of Conditional Discharge, or of Supervision. 22 (k) Nothing contained in this Section shall 23 preclude the right of any party to proceed in a civil 24 action to recover for any damages incurred due to the 25 criminal misconduct of the defendant. 26 (l) Restitution ordered under this Section shall 27 not be subject to disbursement by the circuit clerk under 28 Section 27.5 of the Clerks of Courts Act. 29 (m) A restitution order under this Section is a 30 judgment lien in favor of the victim that: 31 (1) Attaches to the property of the person 32 subject to the order; 33 (2) May be perfected in the same manner as 34 provided in Part 3 of Article 9 of the Uniform HB3929 Engrossed -7- LRB9111973RCmg 1 Commercial Code; 2 (3) May be enforced to satisfy any payment 3 that is delinquent under the restitution order by 4 the person in whose favor the order is issued or the 5 person's assignee; and 6 (4) Expires in the same manner as a judgment 7 lien created in a civil proceeding. 8 When a restitution order is issued under this 9 Section, the issuing court shall send a certified copy of 10 the order to the clerk of the circuit court in the county 11 where the charge was filed. Upon receiving the order, 12 the clerk shall enter and index the order in the circuit 13 court judgment docket. Amounts collected by the clerk, 14 whether in lump sum or installments, shall first be used 15 to satisfy the order of restitution before any other 16 disbursements, including those under Section 27.5 of the 17 Clerks of Courts Act. 18 (n) An order of restitution under this Section does 19 not bar a civil action for: 20 (1) Damages that the court did not require the 21 person to pay to the victim under the restitution 22 order but arise from an injury or property damages 23 that is the basis of restitution ordered by the 24 court; and 25 (2) Other damages suffered by the victim. 26 The restitution order is not discharged by the completion 27 of the sentence imposed for the offense. 28 A restitution order under this Section is not discharged 29 by the liquidation of a person's estate by a receiver. A 30 restitution order under this Section may be enforced in the 31 same manner as judgment liens are enforced under Article XII 32 of the Code of Civil Procedure. 33 The provisions of Section 2-1303 of the Code of Civil 34 Procedure, providing for interest on judgments, apply to HB3929 Engrossed -8- LRB9111973RCmg 1 judgments for restitution entered under this Section. 2 (Source: P.A. 90-465, eff. 1-1-98; 91-153, eff. 1-1-00; 3 91-262, eff. 1-1-00; 91-420, eff. 1-1-00; revised 9-30-99.) 4 Section 99. Effective date. This Act takes effect upon 5 becoming law.