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91_SB0080sam001
LRB9101960RCksam
1 AMENDMENT TO SENATE BILL 80
2 AMENDMENT NO. . Amend Senate Bill 80 by replacing
3 the title with the following:
4 "AN ACT in relation to domestic battery."; and
5 by replacing everything after the enacting clause with the
6 following:
7 "Section 5. The Criminal Code of 1961 is amended by
8 changing Section 12-3.2 as follows:
9 (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
10 Sec. 12-3.2. Domestic Battery.
11 (a) A person commits domestic battery if he
12 intentionally or knowingly without legal justification by any
13 means:
14 (1) Causes bodily harm to any family or household
15 member as defined in subsection (3) of Section 112A-3 of
16 the Code of Criminal Procedure of 1963, as amended;
17 (2) Makes physical contact of an insulting or
18 provoking nature with any family or household member as
19 defined in subsection (3) of Section 112A-3 of the Code
20 of Criminal Procedure of 1963, as amended.
21 (b) Sentence. Domestic battery is a Class A
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1 Misdemeanor. Domestic battery is a Class 4 felony if the
2 defendant has any prior conviction under this Code for
3 domestic battery (Section 12-3.2) or violation of an order of
4 protection (Section 12-30). In addition to any other
5 sentencing alternatives, for any second conviction of
6 violating this Section within 5 years of a previous
7 conviction for violating this Section, the offender shall be
8 mandatorily sentenced to a minimum of 48 consecutive hours of
9 imprisonment. The imprisonment shall not be subject to
10 suspension, nor shall the person be eligible for probation in
11 order to reduce the sentence.
12 (c) For any conviction for domestic battery, if a person
13 under 18 years of age who is the child of the offender or of
14 the victim was present and witnessed the domestic battery of
15 the victim, the defendant is liable for the cost of any
16 counseling required for the child at the discretion of the
17 court in accordance with subsection (b) of Section 5-5-6 of
18 the Unified Code of Corrections.
19 (Source: P.A. 90-734, eff. 1-1-99.)
20 Section 10. The Unified Code of Corrections is amended
21 by changing Section 5-5-6 as follows:
22 (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
23 Sec. 5-5-6. In all convictions for offenses in violation
24 of the Criminal Code of 1961 in which the person received any
25 injury to their person or damage to their real or personal
26 property as a result of the criminal act of the defendant,
27 the court shall order restitution as provided in this
28 Section. When the offender is sentenced to make restitution
29 the Court shall determine the restitution as hereinafter set
30 forth:
31 (a) At the sentence hearing, the court shall
32 determine whether the property may be restored in kind to
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1 the possession of the owner or the person entitled to
2 possession thereof; or whether the defendant is possessed
3 of sufficient skill to repair and restore property
4 damaged; or whether the defendant should be required to
5 make restitution in cash, for out-of-pocket expenses,
6 damages, losses, or injuries found to have been
7 proximately caused by the conduct of the defendant or
8 another for whom the defendant is legally accountable
9 under the provisions of Article V of the Criminal Code of
10 1961.
11 (b) In fixing the amount of restitution to be paid
12 in cash, the court shall allow credit for property
13 returned in kind, for property damages ordered to be
14 repaired by the defendant, and for property ordered to be
15 restored by the defendant; and after granting the credit,
16 the court shall assess the actual out-of-pocket expenses,
17 losses, damages, and injuries suffered by the victim
18 named in the charge and any other victims who may also
19 have suffered out-of-pocket expenses, losses, damages,
20 and injuries proximately caused by the same criminal
21 conduct of the defendant, and insurance carriers who have
22 indemnified the named victim or other victims for the
23 out-of-pocket expenses, losses, damages, or injuries,
24 provided that in no event shall restitution be ordered to
25 be paid on account of pain and suffering. If a defendant
26 is placed on supervision for, or convicted of, domestic
27 battery, the defendant shall be required to pay
28 restitution to any domestic violence shelter in which the
29 victim and any other family or household members lived
30 because of the domestic battery. The amount of the
31 restitution shall equal the actual expenses of the
32 domestic violence shelter in providing housing and any
33 other services for the victim and any other family or
34 household members living at the shelter. If a defendant
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1 fails to pay restitution in the manner or within the time
2 period specified by the court, the court may enter an
3 order directing the sheriff to seize any real or personal
4 property of a defendant to the extent necessary to
5 satisfy the order of restitution and dispose of the
6 property by public sale. All proceeds from such sale in
7 excess of the amount of restitution plus court costs and
8 the costs of the sheriff in conducting the sale shall be
9 paid to the defendant. The defendant convicted of
10 domestic battery, if a person under 18 years of age who
11 is the child of the offender or of the victim was present
12 and witnessed the domestic battery of the victim, is
13 liable to pay restitution for the cost of any counseling
14 required for 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. However, if the court deems it necessary
33 and in the best interest of the victim, the court may
34 extend beyond 5 years the period of time within which the
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1 payment of restitution is to be paid. If the defendant is
2 ordered to pay restitution and the court orders that
3 restitution is to be paid over a period greater than 6
4 months, the court shall order that the defendant make
5 monthly payments; the court may waive this requirement of
6 monthly payments only if there is a specific finding of
7 good cause for waiver.
8 (g) The court shall, after determining that the
9 defendant has the ability to pay, require the defendant
10 to pay for the victim's counseling services if:
11 (1) the defendant was convicted of an offense
12 under Sections 11-19.2, 11-20.1, 12-13, 12-14,
13 12-14.1, 12-15 or 12-16 of the Criminal Code of
14 1961, or was charged with such an offense and the
15 charge was reduced to another charge as a result of
16 a plea agreement under subsection (d) of this
17 Section, and
18 (2) the victim was under 18 years of age at
19 the time the offense was committed and requires
20 counseling as a result of the offense.
21 The payments shall be made by the defendant to the
22 clerk of the circuit court and transmitted by the clerk
23 to the appropriate person or agency as directed by the
24 court. The order may require such payments to be made
25 for a period not to exceed 5 years after sentencing, not
26 including periods of incarceration.
27 (h) The judge may enter an order of withholding to
28 collect the amount of restitution owed in accordance with
29 Part 8 of Article XII of the Code of Civil Procedure.
30 (i) A sentence of restitution may be modified or
31 revoked by the court if the offender commits another
32 offense, or the offender fails to make restitution as
33 ordered by the court, but no sentence to make restitution
34 shall be revoked unless the court shall find that the
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1 offender has had the financial ability to make
2 restitution, and he has wilfully refused to do so. If
3 the court shall find that the defendant has failed to
4 make restitution and that the failure is not wilful, the
5 court may impose an additional period of time within
6 which to make restitution. The length of the additional
7 period shall not be more than 2 years. The court shall
8 retain all of the incidents of the original sentence,
9 including the authority to modify or enlarge the
10 conditions, and to revoke or further modify the sentence
11 if the conditions of payment are violated during the
12 additional period.
13 (j) The procedure upon the filing of a Petition to
14 Revoke a sentence to make restitution shall be the same
15 as the procedures set forth in Section 5-6-4 of this Code
16 governing violation, modification, or revocation of
17 Probation, of Conditional Discharge, or of Supervision.
18 (k) Nothing contained in this Section shall
19 preclude the right of any party to proceed in a civil
20 action to recover for any damages incurred due to the
21 criminal misconduct of the defendant.
22 (l) Restitution ordered under this Section shall
23 not be subject to disbursement by the circuit clerk under
24 Section 27.5 of the Clerks of Courts Act.
25 (m) A restitution order under this Section is a
26 judgment lien in favor of the victim that:
27 (1) Attaches to the property of the person
28 subject to the order;
29 (2) May be perfected in the same manner as
30 provided in Part 3 of Article 9 of the Uniform
31 Commercial Code;
32 (3) May be enforced to satisfy any payment
33 that is delinquent under the restitution order by
34 the person in whose favor the order is issued or the
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1 person's assignee; and
2 (4) Expires in the same manner as a judgment
3 lien created in a civil proceeding.
4 When a restitution order is issued under this
5 Section, the issuing court shall send a certified copy of
6 the order to the clerk of the circuit court in the county
7 where the charge was filed. Upon receiving the order,
8 the clerk shall enter and index the order in the circuit
9 court judgment docket.
10 (n) An order of restitution under this Section does
11 not bar a civil action for:
12 (1) Damages that the court did not require the
13 person to pay to the victim under the restitution
14 order but arise from an injury or property damages
15 that is the basis of restitution ordered by the
16 court; and
17 (2) Other damages suffered by the victim.
18 The restitution order is not discharged by the completion
19 of the sentence imposed for the offense.
20 A restitution order under this Section is not discharged
21 by the liquidation of a person's estate by a receiver. A
22 restitution order under this Section may be enforced in the
23 same manner as judgment liens are enforced under Article XII
24 of the Code of Civil Procedure.
25 The provisions of Section 2-1303 of the Code of Civil
26 Procedure, providing for interest on judgments, apply to
27 judgments for restitution entered under this Section.
28 (Source: P.A. 89-198, eff. 7-21-95; 89-203, eff. 7-21-95;
29 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-689, eff.
30 12-31-96; 90-465, eff. 1-1-98.)".