Illinois General Assembly - Full Text of HB2927
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Full Text of HB2927  93rd General Assembly

HB2927eng 93rd General Assembly


HB2927 Engrossed                     LRB093 06923 RLC 07069 b

 1        AN ACT in relation to criminal law.

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

 4        Section   5.   The  Criminal  Code  of 1961 is amended by
 5    changing 12-3.2 as follows:

 6        (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
 7        Sec. 12-3.2.  Domestic Battery.
 8        (a)  A   person   commits   domestic   battery   if    he
 9    intentionally or knowingly without legal justification by any
10    means:
11             (1)  Causes  bodily  harm to any family or household
12        member as defined in subsection (3) of Section 112A-3  of
13        the Code of Criminal Procedure of 1963, as amended;
14             (2)  Makes  physical  contact  of  an  insulting  or
15        provoking  nature  with any family or household member as
16        defined in subsection (3) of Section 112A-3 of  the  Code
17        of Criminal Procedure of 1963, as amended.
18        (b)  Sentence.    Domestic   battery   is   a   Class   A
19    Misdemeanor.  Domestic  battery  is  a  Class 4 felony if the
20    defendant has  any  prior  conviction  under  this  Code  for
21    domestic battery (Section 12-3.2) or violation of an order of
22    protection  (Section  12-30).  Domestic  battery is a Class 4
23    felony if the defendant has any prior conviction  under  this
24    Code for first degree murder (Section 9-1), attempt to commit
25    first   degree  murder  (Section  8-4),  aggravated  domestic
26    battery (Section 12-3.3), aggravated battery (Section  12-4),
27    heinous  battery  (Section 12-4.1), aggravated battery with a
28    firearm (Section  12-4.2),  aggravated  battery  of  a  child
29    (Section  12-4.3),  aggravated  battery  of  an  unborn child
30    (Section 12-4.4), aggravated  battery  of  a  senior  citizen
31    (Section   12-4.6),  stalking  (Section  12-7.3),  aggravated
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 1    stalking (Section 12-7.4), criminal sexual  assault  (Section
 2    12-13),   aggravated   criminal   sexual   assault   (12-14),
 3    kidnapping  (Section  10-1),  aggravated  kidnapping (Section
 4    10-2), predatory criminal sexual assault of a child  (Section
 5    12-14.1),  aggravated  criminal sexual abuse (Section 12-16),
 6    unlawful  restraint  (Section  10-3),   aggravated   unlawful
 7    restraint   (Section   10-3.1),   aggravated  arson  (Section
 8    20-1.1),  or  aggravated  discharge  of  a  firearm  (Section
 9    24-1.2), when any  of  these  offenses  have  been  committed
10    against  a  family  or household member as defined in Section
11    112A-3 of the Code of Criminal Procedure of 1963. In addition
12    to  any  other  sentencing  alternatives,  for   any   second
13    conviction  of  violating  this  Section  within 5 years of a
14    previous conviction for violating this Section, the  offender
15    shall be mandatorily sentenced to a minimum of 48 consecutive
16    hours of imprisonment.  The imprisonment shall not be subject
17    to suspension, nor shall the person be eligible for probation
18    in order to reduce the sentence.
19        (c)  Domestic  battery  committed  in  the  presence of a
20    child.  In addition to any other sentencing  alternatives,  a
21    defendant  who  commits, in the presence of a child, a felony
22    domestic battery (enhanced under subsection (b)),  aggravated
23    domestic   battery   (Section   12-3.3),  aggravated  battery
24    (Section  12-4),  unlawful  restraint  (Section   10-3),   or
25    aggravated  unlawful  restraint  (Section  10-3.1)  against a
26    family or household member, as defined in Section  112A-3  of
27    the  Code of Criminal Procedure of 1963, shall be required to
28    serve a mandatory minimum imprisonment of 10 days or  perform
29    300 hours of community service, or both.  The defendant shall
30    further be liable for the cost of any counseling required for
31    the  child  at the discretion of the court in accordance with
32    subsection (b) of  Section  5-5-6  of  the  Unified  Code  of
33    Corrections.  For  purposes  of this Section, "child" means a
34    person under 16 years  of  age  who  is  the  defendant's  or
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 1    victim's child or step-child or who is a minor child residing
 2    within  the  household  of  the  defendant  or  victim.   For
 3    purposes  of this Section, "in the presence of a child" means
 4    in the physical presence of a  child  or  knowing  or  having
 5    reason to know that a child is present and may see or hear an
 6    act   constituting   one  of  the  offenses  listed  in  this
 7    subsection.
 8    (Source: P.A. 91-112,  eff.  10-1-99;  91-262,  eff.  1-1-00;
 9    91-928,  eff.  6-1-01;  92-16,  eff.  6-28-01;  92-827,  eff.
10    8-22-02.)

11        Section   10.  The Unified Code of Corrections is amended
12    by changing Section 5-5-6 as follows:

13        (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
14        Sec. 5-5-6.  In all convictions for offenses in violation
15    of the Criminal Code of 1961 in which the person received any
16    injury to their person or damage to their  real  or  personal
17    property  as  a  result of the criminal act of the defendant,
18    the  court  shall  order  restitution  as  provided  in  this
19    Section.   In  all  other  cases,  except  cases   in   which
20    restitution is required under this Section, the court must at
21    the  sentence  hearing  determine  whether  restitution is an
22    appropriate  sentence  to  be  imposed  on   each   defendant
23    convicted  of  an  offense.   If the court determines that an
24    order  directing  the  offender  to   make   restitution   is
25    appropriate,   the   offender   may   be  sentenced  to  make
26    restitution. If the offender is sentenced to make restitution
27    the Court shall determine the restitution as hereinafter  set
28    forth:
29             (a)  At   the  sentence  hearing,  the  court  shall
30        determine whether the property may be restored in kind to
31        the possession of the owner or  the  person  entitled  to
32        possession thereof; or whether the defendant is possessed
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 1        of  sufficient  skill  to  repair  and  restore  property
 2        damaged;  or  whether the defendant should be required to
 3        make restitution in  cash,  for  out-of-pocket  expenses,
 4        damages,   losses,   or   injuries  found  to  have  been
 5        proximately caused by the conduct  of  the  defendant  or
 6        another  for  whom  the  defendant is legally accountable
 7        under the provisions of Article V of the Criminal Code of
 8        1961.
 9             (b)  In fixing the amount of restitution to be  paid
10        in  cash,  the  court  shall  allow  credit  for property
11        returned in kind, for  property  damages  ordered  to  be
12        repaired by the defendant, and for property ordered to be
13        restored by the defendant; and after granting the credit,
14        the court shall assess the actual out-of-pocket expenses,
15        losses,  damages,  and  injuries  suffered  by the victim
16        named in the charge and any other victims  who  may  also
17        have  suffered  out-of-pocket  expenses, losses, damages,
18        and injuries proximately  caused  by  the  same  criminal
19        conduct of the defendant, and insurance carriers who have
20        indemnified  the  named  victim  or other victims for the
21        out-of-pocket expenses,  losses,  damages,  or  injuries,
22        provided that in no event shall restitution be ordered to
23        be paid on account of pain and suffering.  If a defendant
24        is  placed  on supervision for, or convicted of, domestic
25        battery,  the  defendant  shall  be   required   to   pay
26        restitution to any domestic violence shelter in which the
27        victim  and  any  other family or household members lived
28        because of the  domestic  battery.   The  amount  of  the
29        restitution  shall  equal  the  actual  expenses  of  the
30        domestic  violence  shelter  in providing housing and any
31        other services for the victim and  any  other  family  or
32        household  members living at the shelter.  If a defendant
33        fails to pay restitution in the manner or within the time
34        period specified by the court, the  court  may  enter  an
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 1        order directing the sheriff to seize any real or personal
 2        property  of  a  defendant  to  the  extent  necessary to
 3        satisfy the order  of  restitution  and  dispose  of  the
 4        property  by public sale.  All proceeds from such sale in
 5        excess of the amount of restitution plus court costs  and
 6        the  costs of the sheriff in conducting the sale shall be
 7        paid to the defendant.  The  defendant  convicted  of  an
 8        offense listed in subsection (c) of Section 12-3.2 of the
 9        Criminal Code of 1961 domestic battery, if a person under
10        16 18 years of age who is the child of the offender or of
11        the  victim was present and witnessed the offense against
12        domestic  battery  of  the  victim,  is  liable  to   pay
13        restitution  for  the cost of any counseling required for
14        the child at the discretion of the court.
15             (c)  In cases  where  more  than  one  defendant  is
16        accountable for the same criminal conduct that results in
17        out-of-pocket  expenses,  losses,  damages,  or injuries,
18        each defendant shall be ordered to pay restitution in the
19        amount  of  the  total  actual  out-of-pocket   expenses,
20        losses,  damages,  or  injuries to the victim proximately
21        caused by the conduct of all of the  defendants  who  are
22        legally accountable for the offense.
23                  (1)  In  no  event shall the victim be entitled
24             to recover  restitution  in  excess  of  the  actual
25             out-of-pocket    expenses,   losses,   damages,   or
26             injuries, proximately caused by the conduct  of  all
27             of the defendants.
28                  (2)  As  between  the defendants, the court may
29             apportion  the  restitution  that  is   payable   in
30             proportion to each co-defendant's culpability in the
31             commission of the offense.
32                  (3)  In   the   absence  of  a  specific  order
33             apportioning the restitution, each  defendant  shall
34             bear his pro rata share of the restitution.
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 1                  (4)  As  between the defendants, each defendant
 2             shall be entitled to a pro  rata  reduction  in  the
 3             total  restitution required to be paid to the victim
 4             for  amounts  of  restitution   actually   paid   by
 5             co-defendants,  and  defendants  who shall have paid
 6             more than their pro rata share shall be entitled  to
 7             refunds  to  be  computed by the court as additional
 8             amounts are paid by co-defendants.
 9             (d)  In instances where a defendant  has  more  than
10        one criminal charge pending against him in a single case,
11        or more than one case, and the defendant stands convicted
12        of  one  or  more charges, a plea agreement negotiated by
13        the State's Attorney and the defendants may  require  the
14        defendant  to make restitution to victims of charges that
15        have been dismissed or which it is contemplated  will  be
16        dismissed  under  the  terms  of  the plea agreement, and
17        under the agreement, the court may impose a  sentence  of
18        restitution  on  the  charge  or  charges  of  which  the
19        defendant  has  been  convicted  that  would  require the
20        defendant  to  make  restitution  to  victims  of   other
21        offenses as provided in the plea agreement.
22             (e)  The  court  may  require the defendant to apply
23        the balance of the cash  bond,  after  payment  of  court
24        costs, and any fine that may be imposed to the payment of
25        restitution.
26             (f)  Taking  into  consideration  the ability of the
27        defendant to  pay,  the  court  shall  determine  whether
28        restitution  shall  be  paid  in  a  single payment or in
29        installments, and shall fix  a  period  of  time  not  in
30        excess   of   5   years,   not   including   periods   of
31        incarceration,  within which payment of restitution is to
32        be paid in full. Complete restitution shall be paid in as
33        short a time period as possible. However,  if  the  court
34        deems  it  necessary  and  in  the  best  interest of the
HB2927 Engrossed            -7-      LRB093 06923 RLC 07069 b
 1        victim, the court may extend beyond 5 years the period of
 2        time within which the payment of  restitution  is  to  be
 3        paid.  If the defendant is ordered to pay restitution and
 4        the court orders that restitution is to be  paid  over  a
 5        period  greater than 6 months, the court shall order that
 6        the defendant make monthly payments; the court may  waive
 7        this  requirement  of monthly payments only if there is a
 8        specific finding of good cause for waiver.
 9             (g)  The court shall,  after  determining  that  the
10        defendant  has  the ability to pay, require the defendant
11        to pay for the victim's counseling services if:
12                  (1)  the defendant was convicted of an  offense
13             under   Sections  11-19.2,  11-20.1,  12-13,  12-14,
14             12-14.1, 12-15 or 12-16  of  the  Criminal  Code  of
15             1961,  or  was  charged with such an offense and the
16             charge was reduced to another charge as a result  of
17             a  plea  agreement  under  subsection  (d)  of  this
18             Section, and
19                  (2)  the  victim  was  under 18 years of age at
20             the time the  offense  was  committed  and  requires
21             counseling as a result of the offense.
22             The  payments  shall be made by the defendant to the
23        clerk of the circuit court and transmitted by  the  clerk
24        to  the  appropriate  person or agency as directed by the
25        court.  The order may require such payments  to  be  made
26        for  a period not to exceed 5 years after sentencing, not
27        including periods of incarceration.
28             (h)  The judge may enter an order of withholding  to
29        collect the amount of restitution owed in accordance with
30        Part 8 of Article XII of the Code of Civil Procedure.
31             (i)  A  sentence  of  restitution may be modified or
32        revoked by the court  if  the  offender  commits  another
33        offense,  or  the  offender  fails to make restitution as
34        ordered by the court, but no sentence to make restitution
HB2927 Engrossed            -8-      LRB093 06923 RLC 07069 b
 1        shall be revoked unless the court  shall  find  that  the
 2        offender   has   had   the   financial  ability  to  make
 3        restitution, and he has wilfully refused to do so.   When
 4        the offender's ability to pay restitution was established
 5        at  the  time  an  order  of  restitution  was entered or
 6        modified, or when the offender's ability to pay was based
 7        on the offender's willingness to make restitution as part
 8        of a plea  agreement  made  at  the  time  the  order  of
 9        restitution   was   entered   or  modified,  there  is  a
10        rebuttable presumption that the facts  and  circumstances
11        considered by the court at the hearing at which the order
12        of  restitution  was  entered  or  modified regarding the
13        offender's ability or willingness to pay restitution have
14        not materially changed.  If the court shall find that the
15        defendant has failed to make  restitution  and  that  the
16        failure is not wilful, the court may impose an additional
17        period  of  time  within  which to make restitution.  The
18        length of the additional period shall not be more than  2
19        years.   The  court  shall retain all of the incidents of
20        the original sentence, including the authority to  modify
21        or  enlarge  the  conditions,  and  to  revoke or further
22        modify the sentence if  the  conditions  of  payment  are
23        violated during the additional period.
24             (j)  The  procedure upon the filing of a Petition to
25        Revoke a sentence to make restitution shall be  the  same
26        as the procedures set forth in Section 5-6-4 of this Code
27        governing   violation,  modification,  or  revocation  of
28        Probation, of Conditional Discharge, or of Supervision.
29             (k)  Nothing  contained  in   this   Section   shall
30        preclude  the  right  of  any party to proceed in a civil
31        action to recover for any damages  incurred  due  to  the
32        criminal misconduct of the defendant.
33             (l)  Restitution  ordered  under  this Section shall
34        not be subject to disbursement by the circuit clerk under
HB2927 Engrossed            -9-      LRB093 06923 RLC 07069 b
 1        Section 27.5 of the Clerks of Courts Act.
 2             (m)  A restitution order under  this  Section  is  a
 3        judgment lien in favor of the victim that:
 4                  (1)  Attaches  to  the  property  of the person
 5             subject to the order;
 6                  (2)  May be perfected in  the  same  manner  as
 7             provided  in  Part  3  of  Article  9 of the Uniform
 8             Commercial Code;
 9                  (3)  May be enforced  to  satisfy  any  payment
10             that  is  delinquent  under the restitution order by
11             the person in whose favor the order is issued or the
12             person's assignee; and
13                  (4)  Expires in the same manner as  a  judgment
14             lien created in a civil proceeding.
15             When  a  restitution  order  is  issued  under  this
16        Section, the issuing court shall send a certified copy of
17        the order to the clerk of the circuit court in the county
18        where  the  charge  was filed.  Upon receiving the order,
19        the clerk shall enter and index the order in the  circuit
20        court judgment docket.
21             (n)  An order of restitution under this Section does
22        not bar a civil action for:
23                  (1)  Damages that the court did not require the
24             person  to  pay  to the victim under the restitution
25             order but arise from an injury or  property  damages
26             that  is  the  basis  of  restitution ordered by the
27             court; and
28                  (2)  Other damages suffered by the victim.
29        The restitution order is not discharged by the completion
30    of the sentence imposed for the offense.
31        A restitution order under this Section is not  discharged
32    by  the  liquidation  of  a person's estate by a receiver.  A
33    restitution order under this Section may be enforced  in  the
34    same  manner as judgment liens are enforced under Article XII
HB2927 Engrossed            -10-     LRB093 06923 RLC 07069 b
 1    of the Code of Civil Procedure.
 2        The provisions of Section 2-1303 of  the  Code  of  Civil
 3    Procedure,  providing  for  interest  on  judgments, apply to
 4    judgments for restitution entered under this Section.
 5    (Source: P.A.  91-153,  eff.  1-1-00;  91-262,  eff.  1-1-00;
 6    91-420, eff. 1-1-00; 92-16, eff. 6-28-01.)