State of Illinois
90th General Assembly

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[ Introduced ][ House Amendment 003 ][ Conference Committee Report 001 ]


      730 ILCS 5/5-5-6          from Ch. 38, par. 1005-5-6
      730 ILCS 5/5-6-2          from Ch. 38, par. 1005-6-2
          Amends the Unified Code of  Corrections.   Provides  that
      complete  restitution  shall  be  paid by the defendant in as
      short a time as  possible.   Provides  that  when  the  court
      considers modification or revocation of restitution, there is
      a  rebuttable  presumption  that  the facts and circumstances
      considered by the court at the hearing at  which  restitution
      was  ordered  or modified regarding the offender's ability or
      willingness to pay restitution have not materially changed.
SB789 Engrossed                                LRB9002572RCks
 1        AN ACT to  amend  the  Unified  Code  of  Corrections  by
 2    changing Sections 5-5-6 and 5-6-2.
 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 Sections 5-5-6 and 5-6-2 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.  When the offender is sentenced to make  restitution
14    the  Court shall determine the restitution as hereinafter set
15    forth:
16             (a)  At  the  sentence  hearing,  the  court   shall
17        determine whether the property may be restored in kind to
18        the  possession  of  the  owner or the person entitled to
19        possession thereof; or whether the defendant is possessed
20        of  sufficient  skill  to  repair  and  restore  property
21        damaged; or whether the defendant should be  required  to
22        make  restitution  in  cash,  for out-of-pocket expenses,
23        damages,  losses,  or  injuries  found   to   have   been
24        proximately  caused  by  the  conduct of the defendant or
25        another for whom the  defendant  is  legally  accountable
26        under the provisions of Article V of the Criminal Code of
27        1961.
28             (b)  In  fixing the amount of restitution to be paid
29        in cash,  the  court  shall  allow  credit  for  property
30        returned  in  kind,  for  property  damages ordered to be
31        repaired by the defendant, and for property ordered to be
SB789 Engrossed             -2-                LRB9002572RCks
 1        restored by the defendant; and after granting the credit,
 2        the court shall assess the actual out-of-pocket expenses,
 3        losses, damages, and  injuries  suffered  by  the  victim
 4        named  in  the  charge and any other victims who may also
 5        have suffered out-of-pocket  expenses,  losses,  damages,
 6        and  injuries  proximately  caused  by  the same criminal
 7        conduct of the defendant, and insurance carriers who have
 8        indemnified the named victim or  other  victims  for  the
 9        out-of-pocket  expenses,  losses,  damages,  or injuries,
10        provided that in no event shall restitution be ordered to
11        be paid on account of pain and suffering.  If a defendant
12        is placed on supervision for, or convicted  of,  domestic
13        battery,   the   defendant   shall  be  required  to  pay
14        restitution to any domestic violence shelter in which the
15        victim and any other family or  household  members  lived
16        because  of  the  domestic  battery.   The  amount of the
17        restitution  shall  equal  the  actual  expenses  of  the
18        domestic violence shelter in providing  housing  and  any
19        other  services  for  the  victim and any other family or
20        household members living at the shelter.  If a  defendant
21        fails to pay restitution in the manner or within the time
22        period  specified  by  the  court, the court may enter an
23        order directing the sheriff to seize any real or personal
24        property of  a  defendant  to  the  extent  necessary  to
25        satisfy  the  order  of  restitution  and  dispose of the
26        property by public sale.  All proceeds from such sale  in
27        excess  of the amount of restitution plus court costs and
28        the costs of the sheriff in conducting the sale shall  be
29        paid to the defendant.
30             (c)  In  cases  where  more  than  one  defendant is
31        accountable for the same criminal conduct that results in
32        out-of-pocket expenses,  losses,  damages,  or  injuries,
33        each defendant shall be ordered to pay restitution in the
34        amount   of  the  total  actual  out-of-pocket  expenses,
SB789 Engrossed             -3-                LRB9002572RCks
 1        losses, damages, or injuries to  the  victim  proximately
 2        caused  by  the  conduct of all of the defendants who are
 3        legally accountable for the offense.
 4                  (1)  In no event shall the victim  be  entitled
 5             to  recover  restitution  in  excess  of  the actual
 6             out-of-pocket   expenses,   losses,   damages,    or
 7             injuries,  proximately  caused by the conduct of all
 8             of the defendants.
 9                  (2)  As between the defendants, the  court  may
10             apportion   the   restitution  that  is  payable  in
11             proportion to each co-defendant's culpability in the
12             commission of the offense.
13                  (3)  In  the  absence  of  a   specific   order
14             apportioning  the  restitution, each defendant shall
15             bear his pro rata share of the restitution.
16                  (4)  As between the defendants, each  defendant
17             shall  be  entitled  to  a pro rata reduction in the
18             total restitution required to be paid to the  victim
19             for   amounts   of   restitution  actually  paid  by
20             co-defendants, and defendants who  shall  have  paid
21             more  than their pro rata share shall be entitled to
22             refunds to be computed by the  court  as  additional
23             amounts are paid by co-defendants.
24             (d)  In  instances  where  a defendant has more than
25        one criminal charge pending against him in a single case,
26        or more than one case, and the defendant stands convicted
27        of one or more charges, a plea  agreement  negotiated  by
28        the  State's  Attorney and the defendants may require the
29        defendant to make restitution to victims of charges  that
30        have  been  dismissed or which it is contemplated will be
31        dismissed under the terms  of  the  plea  agreement,  and
32        under  the  agreement, the court may impose a sentence of
33        restitution  on  the  charge  or  charges  of  which  the
34        defendant has  been  convicted  that  would  require  the
SB789 Engrossed             -4-                LRB9002572RCks
 1        defendant   to  make  restitution  to  victims  of  other
 2        offenses as provided in the plea agreement.
 3             (e)  The court may require the  defendant  to  apply
 4        the  balance  of  the  cash  bond, after payment of court
 5        costs, and any fine that may be imposed to the payment of
 6        restitution.
 7             (f)  Taking into consideration the  ability  of  the
 8        defendant  to  pay,  the  court  shall  determine whether
 9        restitution shall be paid  in  a  single  payment  or  in
10        installments,  and  shall  fix  a  period  of time not in
11        excess   of   5   years,   not   including   periods   of
12        incarceration, within which payment of restitution is  to
13        be paid in full. Complete restitution shall be paid in as
14        short  a  time  period as possible. However, if the court
15        deems it necessary  and  in  the  best  interest  of  the
16        victim, the court may extend beyond 5 years the period of
17        time  within  which  the  payment of restitution is to be
18        paid. If the defendant is ordered to pay restitution  and
19        the  court  orders  that restitution is to be paid over a
20        period greater than 6 months, the court shall order  that
21        the  defendant make monthly payments; the court may waive
22        this requirement of monthly payments only if there  is  a
23        specific finding of good cause for waiver.
24             (g)  The  court  shall,  after  determining that the
25        defendant has the ability to pay, require  the  defendant
26        to pay for the victim's counseling services if:
27                  (1)  the  defendant was convicted of an offense
28             under  Sections  11-19.2,  11-20.1,  12-13,   12-14,
29             12-14.1,  12-15  or  12-16  of  the Criminal Code of
30             1961, or was charged with such an  offense  and  the
31             charge  was reduced to another charge as a result of
32             a  plea  agreement  under  subsection  (d)  of  this
33             Section, and
34                  (2)  the victim was under 18 years  of  age  at
SB789 Engrossed             -5-                LRB9002572RCks
 1             the  time  the  offense  was  committed and requires
 2             counseling as a result of the offense.
 3             The payments shall be made by the defendant  to  the
 4        clerk  of  the circuit court and transmitted by the clerk
 5        to the appropriate person or agency as  directed  by  the
 6        court.   The  order  may require such payments to be made
 7        for a period not to exceed 5 years after sentencing,  not
 8        including periods of incarceration.
 9             (h)  The  judge may enter an order of withholding to
10        collect the amount of restitution owed in accordance with
11        Part 8 of Article XII of the Code of Civil Procedure.
12             (i)  A sentence of restitution may  be  modified  or
13        revoked  by  the  court  if  the offender commits another
14        offense, or the offender fails  to  make  restitution  as
15        ordered by the court, but no sentence to make restitution
16        shall  be  revoked  unless  the court shall find that the
17        offender  has  had  the   financial   ability   to   make
18        restitution,  and  he has wilfully refused to do so. When
19        the offender's ability to pay restitution was established
20        at the time  an  order  of  restitution  was  entered  or
21        modified, or when the offender's ability to pay was based
22        on the offender's willingness to make restitution as part
23        of  a  plea  agreement  made  at  the  time  the order of
24        restitution  was  entered  or  modified,   there   is   a
25        rebuttable  presumption  that the facts and circumstances
26        considered by the court at the hearing at which the order
27        of restitution was  entered  or  modified  regarding  the
28        offender's ability or willingness to pay restitution have
29        not  materially changed. If the court shall find that the
30        defendant has failed to make  restitution  and  that  the
31        failure is not wilful, the court may impose an additional
32        period  of  time  within  which to make restitution.  The
33        length of the additional period shall not be more than  2
34        years.   The  court  shall retain all of the incidents of
SB789 Engrossed             -6-                LRB9002572RCks
 1        the original sentence, including the authority to  modify
 2        or  enlarge  the  conditions,  and  to  revoke or further
 3        modify the sentence if  the  conditions  of  payment  are
 4        violated during the additional period.
 5             (j)  The  procedure upon the filing of a Petition to
 6        Revoke a sentence to make restitution shall be  the  same
 7        as the procedures set forth in Section 5-6-4 of this Code
 8        governing   violation,  modification,  or  revocation  of
 9        Probation, of Conditional Discharge, or of Supervision.
10             (k)  Nothing  contained  in   this   Section   shall
11        preclude  the  right  of  any party to proceed in a civil
12        action to recover for any damages  incurred  due  to  the
13        criminal misconduct of the defendant.
14             (l)  Restitution  ordered  under  this Section shall
15        not be subject to disbursement by the circuit clerk under
16        Section 27.5 of the Clerks of Courts Act.
17             (m)  A restitution order under  this  Section  is  a
18        judgment lien in favor of the victim that:
19                  (1)  Attaches  to  the  property  of the person
20             subject to the order;
21                  (2)  May be perfected in  the  same  manner  as
22             provided  in  Part  3  of  Article  9 of the Uniform
23             Commercial Code;
24                  (3)  May be enforced  to  satisfy  any  payment
25             that  is  delinquent  under the restitution order by
26             the person in whose favor the order is issued or the
27             person's assignee; and
28                  (4)  Expires in the same manner as  a  judgment
29             lien created in a civil proceeding.
30             When  a  restitution  order  is  issued  under  this
31        Section, the issuing court shall send a certified copy of
32        the order to the clerk of the circuit court in the county
33        where  the  charge  was filed.  Upon receiving the order,
34        the clerk shall enter and index the order in the  circuit
SB789 Engrossed             -7-                LRB9002572RCks
 1        court judgment docket.
 2             (n)  An order of restitution under this Section does
 3        not bar a civil action for:
 4                  (1)  Damages that the court did not require the
 5             person  to  pay  to the victim under the restitution
 6             order but arise from an injury or  property  damages
 7             that  is  the  basis  of  restitution ordered by the
 8             court; and
 9                  (2)  Other damages suffered by the victim.
10        The restitution order is not discharged by the completion
11    of the sentence imposed for the offense.
12        A restitution order under this Section is not  discharged
13    by  the  liquidation  of  a person's estate by a receiver.  A
14    restitution order under this Section may be enforced  in  the
15    same  manner as judgment liens are enforced under Article XII
16    of the Code of Civil Procedure.
17    (Source: P.A. 88-237;  89-198,  eff.  7-21-95;  89-203,  eff.
18    7-21-95; 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-689,
19    eff. 12-31-96.)
20        (730 ILCS 5/5-6-2) (from Ch. 38, par. 1005-6-2)
21        Sec.  5-6-2.  Incidents  of  Probation and of Conditional
22    Discharge.
23        (a)  When  an  offender  is  sentenced  to  probation  or
24    conditional discharge, the court shall impose a period  under
25    paragraph   (b)  of  this  Section,  and  shall  specify  the
26    conditions under Section 5-6-3.
27        (b)  Unless terminated sooner as  provided  in  paragraph
28    (c)  of this Section or extended pursuant to paragraph (e) of
29    this  Section,  the  period  of  probation   or   conditional
30    discharge shall be as follows:
31             (1)  for  a Class 1 or Class 2 felony, not to exceed
32        4 years;
33             (2)  for a Class 3 or Class 4 felony, not to  exceed
SB789 Engrossed             -8-                LRB9002572RCks
 1        30 months;
 2             (3)  for a misdemeanor, not to exceed 2 years;
 3             (4)  for a petty offense, not to exceed 6 months.
 4        Multiple  terms  of  probation  imposed  at the same time
 5    shall run concurrently.
 6        (c)  The court may at any  time  terminate  probation  or
 7    conditional  discharge  if  warranted  by  the conduct of the
 8    offender and the ends of  justice,  as  provided  in  Section
 9    5-6-4.
10        (d)  Upon  the expiration or termination of the period of
11    probation or of conditional discharge, the court shall  enter
12    an order discharging the offender.
13        (e)  The  court  may  extend  any  period of probation or
14    conditional  discharge  beyond  the  limits  set   forth   in
15    paragraph (b) of this Section upon a violation of a condition
16    of the probation or conditional discharge, or for the payment
17    of  an  assessment  required  by Section 10.3 of the Cannabis
18    Control Act or  Section  411.2  of  the  Illinois  Controlled
19    Substances  Act,  or  for  the  payment  of the order to make
20    restitution as provided by Section 5-5-6 of this Code.
21    (Source: P.A. 86-929; 87-772; 87-895.)

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