State of Illinois
91st General Assembly
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Public Act 91-0262

SB80 Enrolled                                  LRB9101960RCcs

    AN ACT in relation to domestic battery.

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

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

    (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
    Sec. 12-3.2.  Domestic Battery.
    (a)  A   person   commits   domestic   battery   if    he
intentionally or knowingly without legal justification by any
means:
         (1)  Causes  bodily  harm to any family or household
    member as defined in subsection (3) of Section 112A-3  of
    the Code of Criminal Procedure of 1963, as amended;
         (2)  Makes  physical  contact  of  an  insulting  or
    provoking  nature  with any family or household member as
    defined in subsection (3) of Section 112A-3 of  the  Code
    of Criminal Procedure of 1963, as amended.
    (b)  Sentence.    Domestic   battery   is   a   Class   A
Misdemeanor.  Domestic  battery  is  a  Class 4 felony if the
defendant has  any  prior  conviction  under  this  Code  for
domestic battery (Section 12-3.2) or violation of an order of
protection   (Section   12-30).  In  addition  to  any  other
sentencing  alternatives,  for  any  second   conviction   of
violating   this   Section  within  5  years  of  a  previous
conviction for violating this Section, the offender shall  be
mandatorily sentenced to a minimum of 48 consecutive hours of
imprisonment.   The  imprisonment  shall  not  be  subject to
suspension, nor shall the person be eligible for probation in
order to reduce the sentence.
    (c)  For any conviction for domestic battery, if a person
under 18 years of age who is the child of the offender or  of
the  victim was present and witnessed the domestic battery of
the victim, the defendant is  liable  for  the  cost  of  any
counseling  required  for  the child at the discretion of the
court in accordance with subsection (b) of Section  5-5-6  of
the Unified Code of Corrections.
(Source: P.A. 90-734, eff. 1-1-99.)

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

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

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