State of Illinois
91st General Assembly

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[ Introduced ][ Engrossed ][ Senate Amendment 001 ]


SB80 Enrolled                                  LRB9101960RCcs

 1        AN ACT in relation to domestic battery.

 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 Section 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).  In  addition  to  any  other
23    sentencing  alternatives,  for  any  second   conviction   of
24    violating   this   Section  within  5  years  of  a  previous
25    conviction for violating this Section, the offender shall  be
26    mandatorily sentenced to a minimum of 48 consecutive hours of
27    imprisonment.   The  imprisonment  shall  not  be  subject to
28    suspension, nor shall the person be eligible for probation in
29    order to reduce the sentence.
30        (c)  For any conviction for domestic battery, if a person
31    under 18 years of age who is the child of the offender or  of
SB80 Enrolled               -2-                LRB9101960RCcs
 1    the  victim was present and witnessed the domestic battery of
 2    the victim, the defendant is  liable  for  the  cost  of  any
 3    counseling  required  for  the child at the discretion of the
 4    court in accordance with subsection (b) of Section  5-5-6  of
 5    the Unified Code of Corrections.
 6    (Source: P.A. 90-734, eff. 1-1-99.)

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

 9        (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
10        Sec. 5-5-6.  In all convictions for offenses in violation
11    of the Criminal Code of 1961 in which the person received any
12    injury to their person or damage to their  real  or  personal
13    property  as  a  result of the criminal act of the defendant,
14    the  court  shall  order  restitution  as  provided  in  this
15    Section.  When the offender is sentenced to make  restitution
16    the  Court shall determine the restitution as hereinafter set
17    forth:
18             (a)  At  the  sentence  hearing,  the  court   shall
19        determine whether the property may be restored in kind to
20        the  possession  of  the  owner or the person entitled to
21        possession thereof; or whether the defendant is possessed
22        of  sufficient  skill  to  repair  and  restore  property
23        damaged; or whether the defendant should be  required  to
24        make  restitution  in  cash,  for out-of-pocket expenses,
25        damages,  losses,  or  injuries  found   to   have   been
26        proximately  caused  by  the  conduct of the defendant or
27        another for whom the  defendant  is  legally  accountable
28        under the provisions of Article V of the Criminal Code of
29        1961.
30             (b)  In  fixing the amount of restitution to be paid
31        in cash,  the  court  shall  allow  credit  for  property
32        returned  in  kind,  for  property  damages ordered to be
SB80 Enrolled               -3-                LRB9101960RCcs
 1        repaired by the defendant, and for property ordered to be
 2        restored by the defendant; and after granting the credit,
 3        the court shall assess the actual out-of-pocket expenses,
 4        losses, damages, and  injuries  suffered  by  the  victim
 5        named  in  the  charge and any other victims who may also
 6        have suffered out-of-pocket  expenses,  losses,  damages,
 7        and  injuries  proximately  caused  by  the same criminal
 8        conduct of the defendant, and insurance carriers who have
 9        indemnified the named victim or  other  victims  for  the
10        out-of-pocket  expenses,  losses,  damages,  or injuries,
11        provided that in no event shall restitution be ordered to
12        be paid on account of pain and suffering.  If a defendant
13        is placed on supervision for, or convicted  of,  domestic
14        battery,   the   defendant   shall  be  required  to  pay
15        restitution to any domestic violence shelter in which the
16        victim and any other family or  household  members  lived
17        because  of  the  domestic  battery.   The  amount of the
18        restitution  shall  equal  the  actual  expenses  of  the
19        domestic violence shelter in providing  housing  and  any
20        other  services  for  the  victim and any other family or
21        household members living at the shelter.  If a  defendant
22        fails to pay restitution in the manner or within the time
23        period  specified  by  the  court, the court may enter an
24        order directing the sheriff to seize any real or personal
25        property of  a  defendant  to  the  extent  necessary  to
26        satisfy  the  order  of  restitution  and  dispose of the
27        property by public sale.  All proceeds from such sale  in
28        excess  of the amount of restitution plus court costs and
29        the costs of the sheriff in conducting the sale shall  be
30        paid   to  the  defendant.  The  defendant  convicted  of
31        domestic battery, if a person under 18 years of  age  who
32        is the child of the offender or of the victim was present
33        and  witnessed  the  domestic  battery  of the victim, is
34        liable to pay restitution for the cost of any  counseling
SB80 Enrolled               -4-                LRB9101960RCcs
 1        required for the child at the discretion of the court.
 2             (c)  In  cases  where  more  than  one  defendant is
 3        accountable for the same criminal conduct that results in
 4        out-of-pocket expenses,  losses,  damages,  or  injuries,
 5        each defendant shall be ordered to pay restitution in the
 6        amount   of  the  total  actual  out-of-pocket  expenses,
 7        losses, damages, or injuries to  the  victim  proximately
 8        caused  by  the  conduct of all of the defendants who are
 9        legally accountable for the offense.
10                  (1)  In no event shall the victim  be  entitled
11             to  recover  restitution  in  excess  of  the actual
12             out-of-pocket   expenses,   losses,   damages,    or
13             injuries,  proximately  caused by the conduct of all
14             of the defendants.
15                  (2)  As between the defendants, the  court  may
16             apportion   the   restitution  that  is  payable  in
17             proportion to each co-defendant's culpability in the
18             commission of the offense.
19                  (3)  In  the  absence  of  a   specific   order
20             apportioning  the  restitution, each defendant shall
21             bear his pro rata share of the restitution.
22                  (4)  As between the defendants, each  defendant
23             shall  be  entitled  to  a pro rata reduction in the
24             total restitution required to be paid to the  victim
25             for   amounts   of   restitution  actually  paid  by
26             co-defendants, and defendants who  shall  have  paid
27             more  than their pro rata share shall be entitled to
28             refunds to be computed by the  court  as  additional
29             amounts are paid by co-defendants.
30             (d)  In  instances  where  a defendant has more than
31        one criminal charge pending against him in a single case,
32        or more than one case, and the defendant stands convicted
33        of one or more charges, a plea  agreement  negotiated  by
34        the  State's  Attorney and the defendants may require the
SB80 Enrolled               -5-                LRB9101960RCcs
 1        defendant to make restitution to victims of charges  that
 2        have  been  dismissed or which it is contemplated will be
 3        dismissed under the terms  of  the  plea  agreement,  and
 4        under  the  agreement, the court may impose a sentence of
 5        restitution  on  the  charge  or  charges  of  which  the
 6        defendant has  been  convicted  that  would  require  the
 7        defendant   to  make  restitution  to  victims  of  other
 8        offenses as provided in the plea agreement.
 9             (e)  The court may require the  defendant  to  apply
10        the  balance  of  the  cash  bond, after payment of court
11        costs, and any fine that may be imposed to the payment of
12        restitution.
13             (f)  Taking into consideration the  ability  of  the
14        defendant  to  pay,  the  court  shall  determine whether
15        restitution shall be paid  in  a  single  payment  or  in
16        installments,  and  shall  fix  a  period  of time not in
17        excess   of   5   years,   not   including   periods   of
18        incarceration, within which payment of restitution is  to
19        be paid in full. However, if the court deems it necessary
20        and  in  the  best  interest of the victim, the court may
21        extend beyond 5 years the period of time within which the
22        payment of restitution is to be paid. If the defendant is
23        ordered to pay restitution  and  the  court  orders  that
24        restitution  is  to  be paid over a period greater than 6
25        months, the court shall order  that  the  defendant  make
26        monthly payments; the court may waive this requirement of
27        monthly  payments  only if there is a specific finding of
28        good cause for waiver.
29             (g)  The court shall,  after  determining  that  the
30        defendant  has  the ability to pay, require the defendant
31        to pay for the victim's counseling services if:
32                  (1)  the defendant was convicted of an  offense
33             under   Sections  11-19.2,  11-20.1,  12-13,  12-14,
34             12-14.1, 12-15 or 12-16  of  the  Criminal  Code  of
SB80 Enrolled               -6-                LRB9101960RCcs
 1             1961,  or  was  charged with such an offense and the
 2             charge was reduced to another charge as a result  of
 3             a  plea  agreement  under  subsection  (d)  of  this
 4             Section, and
 5                  (2)  the  victim  was  under 18 years of age at
 6             the time the  offense  was  committed  and  requires
 7             counseling as a result of the offense.
 8             The  payments  shall be made by the defendant to the
 9        clerk of the circuit court and transmitted by  the  clerk
10        to  the  appropriate  person or agency as directed by the
11        court.  The order may require such payments  to  be  made
12        for  a period not to exceed 5 years after sentencing, not
13        including periods of incarceration.
14             (h)  The judge may enter an order of withholding  to
15        collect the amount of restitution owed in accordance with
16        Part 8 of Article XII of the Code of Civil Procedure.
17             (i)  A  sentence  of  restitution may be modified or
18        revoked by the court  if  the  offender  commits  another
19        offense,  or  the  offender  fails to make restitution as
20        ordered by the court, but no sentence to make restitution
21        shall be revoked unless the court  shall  find  that  the
22        offender   has   had   the   financial  ability  to  make
23        restitution, and he has wilfully refused to  do  so.   If
24        the  court  shall  find  that the defendant has failed to
25        make restitution and that the failure is not wilful,  the
26        court  may  impose  an  additional  period of time within
27        which to make restitution.  The length of the  additional
28        period  shall  not be more than 2 years.  The court shall
29        retain all of the incidents  of  the  original  sentence,
30        including   the   authority  to  modify  or  enlarge  the
31        conditions, and to revoke or further modify the  sentence
32        if  the  conditions  of  payment  are violated during the
33        additional period.
34             (j)  The procedure upon the filing of a Petition  to
SB80 Enrolled               -7-                LRB9101960RCcs
 1        Revoke  a  sentence to make restitution shall be the same
 2        as the procedures set forth in Section 5-6-4 of this Code
 3        governing  violation,  modification,  or  revocation   of
 4        Probation, of Conditional Discharge, or of Supervision.
 5             (k)  Nothing   contained   in   this  Section  shall
 6        preclude the right of any party to  proceed  in  a  civil
 7        action  to  recover  for  any damages incurred due to the
 8        criminal misconduct of the defendant.
 9             (l)  Restitution ordered under  this  Section  shall
10        not be subject to disbursement by the circuit clerk under
11        Section 27.5 of the Clerks of Courts Act.
12             (m)  A  restitution  order  under  this Section is a
13        judgment lien in favor of the victim that:
14                  (1)  Attaches to the  property  of  the  person
15             subject to the order;
16                  (2)  May  be  perfected  in  the same manner as
17             provided in Part 3  of  Article  9  of  the  Uniform
18             Commercial Code;
19                  (3)  May  be  enforced  to  satisfy any payment
20             that is delinquent under the  restitution  order  by
21             the person in whose favor the order is issued or the
22             person's assignee; and
23                  (4)  Expires  in  the same manner as a judgment
24             lien created in a civil proceeding.
25             When  a  restitution  order  is  issued  under  this
26        Section, the issuing court shall send a certified copy of
27        the order to the clerk of the circuit court in the county
28        where the charge was filed.  Upon  receiving  the  order,
29        the  clerk shall enter and index the order in the circuit
30        court judgment docket.
31             (n)  An order of restitution under this Section does
32        not bar a civil action for:
33                  (1)  Damages that the court did not require the
34             person to pay to the victim  under  the  restitution
SB80 Enrolled               -8-                LRB9101960RCcs
 1             order  but  arise from an injury or property damages
 2             that is the basis  of  restitution  ordered  by  the
 3             court; and
 4                  (2)  Other damages suffered by the victim.
 5        The restitution order is not discharged by the completion
 6    of the sentence imposed for the offense.
 7        A  restitution order under this Section is not discharged
 8    by the liquidation of a person's estate  by  a  receiver.   A
 9    restitution  order  under this Section may be enforced in the
10    same manner as judgment liens are enforced under Article  XII
11    of the Code of Civil Procedure.
12        The  provisions  of  Section  2-1303 of the Code of Civil
13    Procedure, providing for  interest  on  judgments,  apply  to
14    judgments for restitution entered under this Section.
15    (Source: P.A.  89-198,  eff.  7-21-95;  89-203, eff. 7-21-95;
16    89-428, eff. 12-13-95; 89-462,  eff.  5-29-96;  89-689,  eff.
17    12-31-96; 90-465, eff. 1-1-98.)

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