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1 | AN ACT in relation to criminal law.
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2 | Be it enacted by the People of the State of Illinois, | ||||||||||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 1961 is amended by changing
| ||||||||||||||||||||||||||
5 | 12-3.2 as follows:
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6 | (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
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7 | Sec. 12-3.2. Domestic Battery.
| ||||||||||||||||||||||||||
8 | (a) A person commits domestic battery if he intentionally | ||||||||||||||||||||||||||
9 | or knowingly
without legal justification by any means:
| ||||||||||||||||||||||||||
10 | (1) Causes bodily harm to any family or household | ||||||||||||||||||||||||||
11 | member as defined in
subsection (3) of Section 112A-3 of | ||||||||||||||||||||||||||
12 | the Code of Criminal Procedure of 1963, as
amended;
| ||||||||||||||||||||||||||
13 | (2) Makes physical contact of an insulting or provoking | ||||||||||||||||||||||||||
14 | nature with any
family or household member as defined in | ||||||||||||||||||||||||||
15 | subsection (3) of Section 112A-3
of the Code of Criminal | ||||||||||||||||||||||||||
16 | Procedure of 1963, as amended.
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17 | (b) Sentence. Domestic battery is a Class A Misdemeanor.
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18 | Domestic battery is a Class 4 felony if the defendant has any
| ||||||||||||||||||||||||||
19 | prior
conviction under this Code for domestic battery (Section | ||||||||||||||||||||||||||
20 | 12-3.2) or violation
of an order of protection (Section 12-30), | ||||||||||||||||||||||||||
21 | or any prior conviction under the
law of another jurisdiction | ||||||||||||||||||||||||||
22 | for an offense which is substantially similar.
Domestic battery | ||||||||||||||||||||||||||
23 | is a Class 4 felony
if the
defendant has any prior conviction | ||||||||||||||||||||||||||
24 | under this Code for first degree murder
(Section 9-1), attempt | ||||||||||||||||||||||||||
25 | to
commit first degree murder (Section 8-4), aggravated | ||||||||||||||||||||||||||
26 | domestic battery (Section
12-3.3), aggravated battery
(Section | ||||||||||||||||||||||||||
27 | 12-4), heinous battery (Section 12-4.1), aggravated battery | ||||||||||||||||||||||||||
28 | with a
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 | ||||||||||||||||||||||||||
32 | stalking (Section
12-7.4), criminal sexual assault (Section |
| |||||||
| |||||||
1 | 12-13), aggravated criminal sexual
assault
(12-14), kidnapping | ||||||
2 | (Section 10-1), aggravated kidnapping (Section 10-2),
| ||||||
3 | predatory criminal sexual assault of a child (Section 12-14.1), | ||||||
4 | aggravated
criminal sexual abuse (Section 12-16), unlawful | ||||||
5 | restraint (Section 10-3),
aggravated unlawful restraint | ||||||
6 | (Section 10-3.1), aggravated arson (Section
20-1.1), or | ||||||
7 | aggravated discharge of a firearm
(Section 24-1.2), or any | ||||||
8 | prior conviction under the law of another
jurisdiction for any | ||||||
9 | offense that is substantially similar to the offenses
listed in | ||||||
10 | this Section, when any of these
offenses have been committed
| ||||||
11 | against a
family or household member as defined in Section
| ||||||
12 | 112A-3 of the Code of Criminal Procedure of 1963. In addition | ||||||
13 | to any other
sentencing alternatives, for any second conviction | ||||||
14 | of violating this
Section within 5 years of a previous | ||||||
15 | conviction for violating this Section, the
offender shall be | ||||||
16 | mandatorily sentenced to a minimum of 48 consecutive hours of
| ||||||
17 | imprisonment. The imprisonment shall not be subject to | ||||||
18 | suspension, nor shall
the person be eligible for probation in | ||||||
19 | order to reduce the sentence.
| ||||||
20 | (c) Domestic battery committed in the presence of a child. | ||||||
21 | In addition to
any other sentencing alternatives, a defendant | ||||||
22 | who commits, in the presence of
a child, a felony domestic | ||||||
23 | battery (enhanced under subsection
(b)), aggravated domestic | ||||||
24 | battery (Section 12-3.3),
aggravated battery (Section 12-4), | ||||||
25 | unlawful restraint (Section
10-3), or aggravated unlawful | ||||||
26 | restraint (Section 10-3.1) against a family or
household | ||||||
27 | member, as defined in Section 112A-3 of the Code of Criminal
| ||||||
28 | Procedure of 1963, shall be required to serve a mandatory | ||||||
29 | minimum imprisonment
of 10 days or perform 300 hours of | ||||||
30 | community service, or both. The defendant
shall further be | ||||||
31 | liable for the cost of any counseling required for the child
at | ||||||
32 | the discretion of the court in accordance
with subsection (b) | ||||||
33 | of Section 5-5-6 of the Unified Code of Corrections.
For | ||||||
34 | purposes of this Section, "child" means a person under 16 years | ||||||
35 | of age
who is the defendant's or victim's child or step-child | ||||||
36 | or who is a minor child
residing
within the household of the |
| |||||||
| |||||||
1 | defendant or victim . For purposes of this Section,
"in the | ||||||
2 | presence of a child" means in the physical presence of a child | ||||||
3 | or
knowing or having reason to know that a child is present and | ||||||
4 | may see or hear an
act constituting one of the offenses listed | ||||||
5 | in this subsection.
| ||||||
6 | (Source: P.A. 92-16, eff. 6-28-01; 92-827, eff. 8-22-02; P.A. | ||||||
7 | 93-336, eff.
1-1-04.)
| ||||||
8 | Section 10. The Unified Code of Corrections is amended by | ||||||
9 | changing
Section 5-5-6 as follows:
| ||||||
10 | (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| ||||||
11 | Sec. 5-5-6. In all convictions for offenses in violation of | ||||||
12 | the Criminal
Code of 1961 in which the person received any | ||||||
13 | injury to their person or damage
to their real or personal | ||||||
14 | property as a result of the criminal act of the
defendant, the | ||||||
15 | court shall order restitution as provided in this Section. In
| ||||||
16 | all other cases, except cases in which restitution is required | ||||||
17 | under this
Section, the court must at the sentence hearing | ||||||
18 | determine whether restitution
is an appropriate sentence to be | ||||||
19 | imposed on each defendant convicted of an
offense. If the court | ||||||
20 | determines that an order directing the offender to make
| ||||||
21 | restitution is appropriate, the offender may be sentenced to | ||||||
22 | make restitution.
If
the offender is sentenced to make | ||||||
23 | restitution the Court shall determine the
restitution as | ||||||
24 | hereinafter set forth:
| ||||||
25 | (a) At the sentence hearing, the court shall determine | ||||||
26 | whether the
property
may be restored in kind to the | ||||||
27 | possession of the owner or the person entitled
to | ||||||
28 | possession thereof; or whether the defendant is possessed | ||||||
29 | of sufficient
skill to repair and restore property damaged; | ||||||
30 | or whether the defendant should
be required to make | ||||||
31 | restitution in cash, for out-of-pocket expenses, damages,
| ||||||
32 | losses, or injuries found to have been proximately caused | ||||||
33 | by the conduct
of the defendant or another for whom the | ||||||
34 | defendant is legally accountable
under the provisions of |
| |||||||
| |||||||
1 | Article V of the Criminal Code of 1961.
| ||||||
2 | (b) In fixing the amount of restitution to be paid in | ||||||
3 | cash, the court
shall allow credit for property returned in | ||||||
4 | kind, for property damages ordered
to be repaired by the | ||||||
5 | defendant, and for property ordered to be restored
by the | ||||||
6 | defendant; and after granting the credit, the court shall | ||||||
7 | assess
the actual out-of-pocket expenses, losses, damages, | ||||||
8 | and injuries suffered
by the victim named in the charge and | ||||||
9 | any other victims who may also have
suffered out-of-pocket | ||||||
10 | expenses, losses, damages, and injuries proximately
caused | ||||||
11 | by the same criminal conduct of the defendant, and | ||||||
12 | insurance
carriers who have indemnified the named victim or | ||||||
13 | other victims for the
out-of-pocket expenses, losses, | ||||||
14 | damages, or injuries, provided that in no
event shall | ||||||
15 | restitution be ordered to be paid on account of pain and
| ||||||
16 | suffering. If a defendant is placed on supervision for, or | ||||||
17 | convicted of,
domestic battery, the defendant shall be | ||||||
18 | required to pay restitution to any
domestic violence | ||||||
19 | shelter in which the victim and any other family or | ||||||
20 | household
members lived because of the domestic battery. | ||||||
21 | The amount of the restitution
shall equal the actual | ||||||
22 | expenses of the domestic violence shelter in providing
| ||||||
23 | housing and any other services for the victim and any other | ||||||
24 | family or household
members living at the shelter. If a | ||||||
25 | defendant fails to pay restitution in
the manner or within
| ||||||
26 | the time period specified by the court, the court may enter | ||||||
27 | an order
directing the sheriff to seize any real or | ||||||
28 | personal property of a defendant
to the extent necessary to | ||||||
29 | satisfy the order of restitution and dispose of
the | ||||||
30 | property by public sale. All proceeds from such sale in | ||||||
31 | excess of the
amount of restitution plus court costs and | ||||||
32 | the costs of the sheriff in
conducting the sale shall be | ||||||
33 | paid to the defendant. The defendant convicted of
an | ||||||
34 | offense listed in subsection (c) of Section 12-3.2 of the | ||||||
35 | Criminal Code of
1961
domestic battery , if a person under | ||||||
36 | 16
18 years of age
who is the child of the
offender or of |
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| |||||||
1 | the victim was present and witnessed the offense against
| ||||||
2 | domestic battery of the
victim, is liable to pay | ||||||
3 | restitution for the cost of any counseling required
for
the | ||||||
4 | child at the discretion of the court.
| ||||||
5 | (c) In cases where more than one defendant is | ||||||
6 | accountable for the same
criminal conduct that results in | ||||||
7 | out-of-pocket expenses, losses, damages,
or injuries, each | ||||||
8 | defendant shall be ordered to pay restitution in the amount
| ||||||
9 | of the total actual out-of-pocket expenses, losses, | ||||||
10 | damages, or injuries
to the victim proximately caused by | ||||||
11 | the conduct of all of the defendants
who are legally | ||||||
12 | accountable for the offense.
| ||||||
13 | (1) In no event shall the victim be entitled to | ||||||
14 | recover restitution in
excess of the actual | ||||||
15 | out-of-pocket expenses, losses, damages, or injuries,
| ||||||
16 | proximately caused by the conduct of all of the | ||||||
17 | defendants.
| ||||||
18 | (2) As between the defendants, the court may | ||||||
19 | apportion the restitution
that is payable in | ||||||
20 | proportion to each co-defendant's culpability in the
| ||||||
21 | commission of the offense.
| ||||||
22 | (3) In the absence of a specific order apportioning | ||||||
23 | the restitution,
each defendant shall bear his pro rata | ||||||
24 | share of the restitution.
| ||||||
25 | (4) As between the defendants, each defendant | ||||||
26 | shall be entitled to a pro
rata reduction in the total | ||||||
27 | restitution required to be paid to the victim
for | ||||||
28 | amounts of restitution actually paid by co-defendants, | ||||||
29 | and defendants
who shall have paid more than their pro | ||||||
30 | rata share shall be entitled to
refunds to be computed | ||||||
31 | by the court as additional amounts are
paid by | ||||||
32 | co-defendants.
| ||||||
33 | (d) In instances where a defendant has more than one | ||||||
34 | criminal charge
pending
against him in a single case, or | ||||||
35 | more than one case, and the defendant stands
convicted of | ||||||
36 | one or more charges, a plea agreement negotiated by the |
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| |||||||
1 | State's
Attorney and the defendants may require the | ||||||
2 | defendant to make restitution
to victims of charges that | ||||||
3 | have been dismissed or which it is contemplated
will be | ||||||
4 | dismissed under the terms of the plea agreement, and under | ||||||
5 | the
agreement, the court may impose a sentence of | ||||||
6 | restitution on the charge
or charges of which the defendant | ||||||
7 | has been convicted that would require
the defendant to make | ||||||
8 | restitution to victims of other offenses as provided
in the | ||||||
9 | plea agreement.
| ||||||
10 | (e) The court may require the defendant to apply the | ||||||
11 | balance of the cash
bond, after payment of court costs, and | ||||||
12 | any fine that may be imposed to
the payment of 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 excess
| ||||||
17 | of 5 years, not including periods of incarceration, within | ||||||
18 | which payment of
restitution is to be paid in full.
| ||||||
19 | Complete restitution shall be paid in as short a time | ||||||
20 | period as possible.
However, if the court deems it | ||||||
21 | necessary and in the best interest of the
victim, the court | ||||||
22 | may extend beyond 5 years the period of time within which | ||||||
23 | the
payment of restitution is to be paid.
If the defendant | ||||||
24 | is ordered to pay restitution and the court orders that
| ||||||
25 | restitution is to be paid over a period greater than 6 | ||||||
26 | months, the court
shall order that the defendant make | ||||||
27 | monthly payments; the court may waive
this requirement of | ||||||
28 | monthly payments only if there is a specific finding of
| ||||||
29 | good cause for waiver.
| ||||||
30 | (g) The court shall, after determining that the | ||||||
31 | defendant has the
ability to pay, require the defendant to | ||||||
32 | pay for the
victim's counseling services if:
| ||||||
33 | (1) the defendant was convicted of an offense under | ||||||
34 | Sections 11-19.2,
11-20.1, 12-13, 12-14, 12-14.1, | ||||||
35 | 12-15 or 12-16 of the Criminal Code of
1961,
or was | ||||||
36 | charged with such an offense and the charge was reduced |
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| |||||||
1 | to another
charge as a result of a plea agreement under | ||||||
2 | subsection (d) of this Section,
and
| ||||||
3 | (2) the victim was under 18 years of age at the | ||||||
4 | time the
offense was committed and requires counseling | ||||||
5 | as a result of the offense.
| ||||||
6 | The payments shall be made by the defendant to the | ||||||
7 | clerk of the circuit
court
and transmitted by the clerk to | ||||||
8 | the appropriate person or agency as directed by
the court. | ||||||
9 | The order may require such payments to be made for a period | ||||||
10 | not to
exceed 5 years after sentencing, not including | ||||||
11 | periods of incarceration.
| ||||||
12 | (h) The judge may enter an order of withholding to | ||||||
13 | collect the amount
of restitution owed in accordance with | ||||||
14 | Part 8 of Article XII of the Code of
Civil Procedure.
| ||||||
15 | (i) A sentence of restitution may be modified or | ||||||
16 | revoked by the court
if the offender commits another | ||||||
17 | offense, or the offender fails to make
restitution as | ||||||
18 | ordered by the court, but no sentence to make restitution
| ||||||
19 | shall be revoked unless the court shall find that the | ||||||
20 | offender has had the
financial ability to make restitution, | ||||||
21 | and he has wilfully refused to do
so. When the offender's | ||||||
22 | ability to pay restitution was established at the time
an | ||||||
23 | order of restitution was entered or modified, or when the | ||||||
24 | offender's ability
to pay was based on the offender's | ||||||
25 | willingness to make restitution as part of a
plea agreement | ||||||
26 | made at the time the order of restitution was entered or
| ||||||
27 | modified, there is a rebuttable presumption that the facts | ||||||
28 | and circumstances
considered by the court at the hearing at | ||||||
29 | which the order of restitution was
entered or modified | ||||||
30 | regarding the offender's ability or willingness to pay
| ||||||
31 | restitution have not materially changed. If the court shall | ||||||
32 | find that the
defendant has failed to make
restitution and | ||||||
33 | that the failure is not wilful, the court may impose an
| ||||||
34 | additional period of time within which to make restitution. | ||||||
35 | The length of
the additional period shall not be more than | ||||||
36 | 2 years. The court shall
retain all of the incidents of the |
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| |||||||
1 | original sentence, including the
authority to modify or | ||||||
2 | enlarge the conditions, and to revoke or further
modify the | ||||||
3 | sentence if the conditions of payment are violated during | ||||||
4 | 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 as | ||||||
7 | 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 preclude | ||||||
11 | the right of any
party to proceed in a civil action to | ||||||
12 | recover for any damages incurred due
to the criminal | ||||||
13 | misconduct of the defendant.
| ||||||
14 | (l) Restitution ordered under this Section shall not be
| ||||||
15 | subject to disbursement by the circuit clerk under Section | ||||||
16 | 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 subject | ||||||
20 | to the order;
| ||||||
21 | (2) May be perfected in the same manner as provided | ||||||
22 | in Part 3 of Article
9 of the Uniform Commercial Code;
| ||||||
23 | (3) May be enforced to satisfy any payment that is | ||||||
24 | delinquent under the
restitution order by the person in | ||||||
25 | whose favor the order is issued or the
person's | ||||||
26 | assignee; and
| ||||||
27 | (4) Expires in the same manner as a judgment lien | ||||||
28 | created in a civil
proceeding.
| ||||||
29 | When a restitution order is issued under this Section, | ||||||
30 | the issuing court
shall send a certified copy of the order | ||||||
31 | to the clerk of the circuit court
in the county where the | ||||||
32 | charge was filed. Upon receiving the order, the
clerk shall | ||||||
33 | enter and index the order in the circuit court judgment | ||||||
34 | docket.
| ||||||
35 | (n) An order of restitution under this Section does not | ||||||
36 | bar
a civil action for:
|
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| |||||||
1 | (1) Damages that the court did not require the | ||||||
2 | person to pay to the
victim under the restitution order | ||||||
3 | but arise from an injury or property
damages that is | ||||||
4 | the basis of restitution ordered by the court; and
| ||||||
5 | (2) Other damages suffered by the victim.
| ||||||
6 | The restitution order is not discharged by the
completion | ||||||
7 | of the sentence imposed for the offense.
| ||||||
8 | A restitution order under this Section is not discharged by | ||||||
9 | the
liquidation of a person's estate by a receiver. A | ||||||
10 | restitution order under
this Section may be enforced in the | ||||||
11 | same manner as judgment liens are
enforced under Article XII of | ||||||
12 | the Code of Civil Procedure.
| ||||||
13 | The provisions of Section 2-1303 of the Code of Civil | ||||||
14 | Procedure,
providing for interest on judgments, apply to | ||||||
15 | judgments for restitution entered
under this Section.
| ||||||
16 | (Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00;
91-420, | ||||||
17 | eff. 1-1-00; 92-16, eff. 6-28-01.)
|