HB5680 95TH GENERAL ASSEMBLY

LRB095 16090 WGH 42108 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5680

Introduced , by Rep. Dan Brady

SYNOPSIS AS INTRODUCED:

625 ILCS 5/16-105.1 new

Amends the Illinois Vehicle Code. Provides that a court may order a defendant to pay restitution to persons who suffered personal injury or property damage as a result of misdemeanors and felonies committed in violation of the Code. Contains provisions regarding the amount of restitution, plea agreements, applying the balance of the cash bond to the payment of restitution, the manner of payment of restitution, sentence modification or revocation, civil actions, liens, discharge, interest, and other matters.

A BILL FOR

AN ACT concerning transportation.

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

Section 5. The Illinois Vehicle Code is amended by adding Section 16-105.1 as follows:

(625 ILCS 5/16-105.1 new)

Sec. 16-105.1. Restitution.

(a) In all convictions for felonies or misdemeanors in violation of this Code in which the person received any injury to his or her person or damage to his or her real or personal property as a result of the conduct of the defendant, the court may order restitution as provided in this Section.

(b) In fixing the amount of restitution to be paid, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by any person or persons that were proximately caused by the conduct of the defendant, and the amounts paid by any insurance carriers that have indemnified those persons for those out-of-pocket expenses, losses, damages, or injuries, provided that restitution may not be ordered to be paid on account of pain and suffering. 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 the defendant to the extent necessary to satisfy the order of restitution and dispose of the property by public sale. All proceeds from the 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.

(c) In instances where a defendant has more than one charge of a felony or misdemeanor in violation of this Code pending against him or her 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 defendant may require the defendant to make restitution relating to charges that have been dismissed or are expected to be dismissed under the terms of the plea agreement. Also 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 relating to other offenses as provided in the plea agreement.

(d) 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.

(e) 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 restitution is to be paid in full. Complete restitution shall be paid in as short a time period as possible. If, however, the court deems it necessary and in the best interest of the person or persons who have suffered loss or injury, the court may extend beyond 5 years the period of time within which 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 the requirement of monthly payments only if there is a specific finding of good cause for waiver.

(f) 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.

(g) 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 a sentence to make restitution may not be revoked unless the court finds that the offender (i) has had the financial ability to make restitution and (ii) has wilfully refused to do so. If the offender's ability to pay restitution was established at the time an order of restitution was entered or modified, or if the offender's ability to pay was based on the offender's willingness to make restitution as part of a plea agreement made at the time the order of restitution was entered or modified, there is a rebuttable presumption that the facts and circumstances regarding the offender's ability or willingness to pay restitution have not materially changed since the date of the hearing at which the court considered those facts and circumstances. If the court finds 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 may 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.

(h) The procedures 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 the Unified Code of Corrections governing violation, modification, or revocation of probation, of conditional discharge, or of supervision.

(i) This Section does not preclude any party from proceeding in a civil action to recover for any damages incurred due to the criminal misconduct of the defendant.

(j) Restitution ordered under this Section is not subject to disbursement by the circuit clerk under Section 27.5 of the Clerks of Courts Act.

(k) 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.

(l) 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.

(m) 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 personal injury or property damage that is the basis of restitution ordered by the court; and

(2) other damages suffered by the person or persons who suffered loss or injury.

(n) The restitution order is not discharged by the completion of the sentence imposed for the offense.

(o) 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.

(p) Section 2-1303 of the Code of Civil Procedure, providing for interest on judgments, applies to judgments for restitution entered under this Section.