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Full Text of SB3102  99th General Assembly

SB3102eng 99TH GENERAL ASSEMBLY

  
  
  

 


 
SB3102 EngrossedLRB099 19029 RLC 43418 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Unified Code of Corrections is amended by
5changing Section 5-5-6 as follows:
 
6    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
7    Sec. 5-5-6. In all convictions for offenses in violation of
8the Criminal Code of 1961 or the Criminal Code of 2012 or of
9Section 11-501 of the Illinois Vehicle Code in which the person
10received any injury to his or her person or damage to his or
11her real or personal property as a result of the criminal act
12of the defendant, the court shall order restitution as provided
13in this Section. In cases involving the Cannabis Control Act,
14the Illinois Controlled Substances Act, and the
15Methamphetamine Control and Community Protection Act,
16restitution shall be ordered for any United States Currency
17Official Advanced Funds (OAF) expended by law enforcement
18officers or task force members to purchase the cannabis,
19controlled substances, or methamphetamine or substance to
20produce or manufacture, or both, methamphetamine. Restitution
21shall include not only United States currency that was used in
22the offense charged, but any currency that was previously used
23in the investigation leading to the arrest and subsequent

 

 

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1conviction. Restitution shall be awarded only to the law
2enforcement agency or task force responsible for the
3expenditure of United States currency. Restitution shall not
4exceed the actual amount expended, minus any OAF recovered, by
5the law enforcement agency or task force during the
6investigation. Restitution shall be in addition to any other
7fine, fee, or cost authorized by law. Restitution shall apply
8to any agreed or contested sentence and may be submitted to the
9court by way of affidavit setting forth the amount of
10restitution requested, the name of the defendant, and the name
11of the law enforcement agency or task force. Bond posted by the
12defendant may be used for restitution. In all other cases,
13except cases in which restitution is required under this
14Section, the court must at the sentence hearing determine
15whether restitution is an appropriate sentence to be imposed on
16each defendant convicted of an offense. If the court determines
17that an order directing the offender to make restitution is
18appropriate, the offender may be sentenced to make restitution.
19The court may consider restitution an appropriate sentence to
20be imposed on each defendant convicted of an offense in
21addition to a sentence of imprisonment. The sentence of the
22defendant to a term of imprisonment is not a mitigating factor
23that prevents the court from ordering the defendant to pay
24restitution. If the offender is sentenced to make restitution
25the Court shall determine the restitution as hereinafter set
26forth:

 

 

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1        (a) At the sentence hearing, the court shall determine
2    whether the property may be restored in kind to the
3    possession of the owner or the person entitled to
4    possession thereof; or whether the defendant is possessed
5    of sufficient skill to repair and restore property damaged;
6    or whether the defendant should be required to make
7    restitution in cash, for out-of-pocket expenses, damages,
8    losses, or injuries found to have been proximately caused
9    by the conduct of the defendant or another for whom the
10    defendant is legally accountable under the provisions of
11    Article 5 of the Criminal Code of 1961 or the Criminal Code
12    of 2012.
13        (b) In fixing the amount of restitution to be paid in
14    cash, the court shall allow credit for property returned in
15    kind, for property damages ordered to be repaired by the
16    defendant, and for property ordered to be restored by the
17    defendant; and after granting the credit, the court shall
18    assess the actual out-of-pocket expenses, losses, damages,
19    and injuries suffered by the victim named in the charge and
20    any other victims who may also have suffered out-of-pocket
21    expenses, losses, damages, and injuries proximately caused
22    by the same criminal conduct of the defendant, and
23    insurance carriers who have indemnified the named victim or
24    other victims for the out-of-pocket expenses, losses,
25    damages, or injuries, provided that in no event shall
26    restitution be ordered to be paid on account of pain and

 

 

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1    suffering. When a victim's out-of-pocket expenses have
2    been paid pursuant to the Crime Victims Compensation Act,
3    the court shall order restitution be paid to the
4    compensation program. If a defendant is placed on
5    supervision for, or convicted of, domestic battery, the
6    defendant shall be required to pay restitution to any
7    domestic violence shelter in which the victim and any other
8    family or household members lived because of the domestic
9    battery. The amount of the restitution shall equal the
10    actual expenses of the domestic violence shelter in
11    providing housing and any other services for the victim and
12    any other family or household members living at the
13    shelter. If a defendant fails to pay restitution in the
14    manner or within the time period specified by the court,
15    the court may enter an order directing the sheriff to seize
16    any real or personal property of a defendant to the extent
17    necessary to satisfy the order of restitution and dispose
18    of the property by public sale. All proceeds from such sale
19    in excess of the amount of restitution plus court costs and
20    the costs of the sheriff in conducting the sale shall be
21    paid to the defendant. The defendant convicted of domestic
22    battery, if a person under 18 years of age was present and
23    witnessed the domestic battery of the victim, is liable to
24    pay restitution for the cost of any counseling required for
25    the child at the discretion of the court.
26        (c) In cases where more than one defendant is

 

 

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1    accountable for the same criminal conduct that results in
2    out-of-pocket expenses, losses, damages, or injuries, each
3    defendant shall be ordered to pay restitution in the amount
4    of the total actual out-of-pocket expenses, losses,
5    damages, or injuries to the victim proximately caused by
6    the conduct of all of the defendants who are legally
7    accountable for the offense.
8            (1) In no event shall the victim be entitled to
9        recover restitution in excess of the actual
10        out-of-pocket expenses, losses, damages, or injuries,
11        proximately caused by the conduct of all of the
12        defendants.
13            (2) As between the defendants, the court may
14        apportion the restitution that is payable in
15        proportion to each co-defendant's culpability in the
16        commission of the offense.
17            (3) In the absence of a specific order apportioning
18        the restitution, each defendant shall bear his pro rata
19        share of the restitution.
20            (4) As between the defendants, each defendant
21        shall be entitled to a pro rata reduction in the total
22        restitution required to be paid to the victim for
23        amounts of restitution actually paid by co-defendants,
24        and defendants who shall have paid more than their pro
25        rata share shall be entitled to refunds to be computed
26        by the court as additional amounts are paid by

 

 

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1        co-defendants.
2        (d) In instances where a defendant has more than one
3    criminal charge pending against him in a single case, or
4    more than one case, and the defendant stands convicted of
5    one or more charges, a plea agreement negotiated by the
6    State's Attorney and the defendants may require the
7    defendant to make restitution to victims of charges that
8    have been dismissed or which it is contemplated will be
9    dismissed under the terms of the plea agreement, and under
10    the agreement, the court may impose a sentence of
11    restitution on the charge or charges of which the defendant
12    has been convicted that would require the defendant to make
13    restitution to victims of other offenses as provided in the
14    plea agreement.
15        (e) The court may require the defendant to apply the
16    balance of the cash bond, after payment of court costs, and
17    any fine that may be imposed to the payment of restitution.
18        (f) Taking into consideration the ability of the
19    defendant to pay, including any real or personal property
20    or any other assets of the defendant, the court shall
21    determine whether restitution shall be paid in a single
22    payment or in installments, and shall fix a period of time
23    not in excess of 5 years, except for violations of Sections
24    16-1.3 and 17-56 of the Criminal Code of 1961 or the
25    Criminal Code of 2012, or the period of time specified in
26    subsection (f-1), not including periods of incarceration,

 

 

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1    within which payment of restitution is to be paid in full.
2    Complete restitution shall be paid in as short a time
3    period as possible. However, if the court deems it
4    necessary and in the best interest of the victim, the court
5    may extend beyond 5 years the period of time within which
6    the payment of restitution is to be paid. If the defendant
7    is ordered to pay restitution and the court orders that
8    restitution is to be paid over a period greater than 6
9    months, the court shall order that the defendant make
10    monthly payments; the court may waive this requirement of
11    monthly payments only if there is a specific finding of
12    good cause for waiver.
13        (f-1)(1) In addition to any other penalty prescribed by
14    law and any restitution ordered under this Section that did
15    not include long-term physical health care costs, the court
16    may, upon conviction of any misdemeanor or felony, order a
17    defendant to pay restitution to a victim in accordance with
18    the provisions of this subsection (f-1) if the victim has
19    suffered physical injury as a result of the offense that is
20    reasonably probable to require or has required long-term
21    physical health care for more than 3 months. As used in
22    this subsection (f-1) "long-term physical health care"
23    includes mental health care.
24        (2) The victim's estimate of long-term physical health
25    care costs may be made as part of a victim impact statement
26    under Section 6 of the Rights of Crime Victims and

 

 

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1    Witnesses Act or made separately. The court shall enter the
2    long-term physical health care restitution order at the
3    time of sentencing. An order of restitution made under this
4    subsection (f-1) shall fix a monthly amount to be paid by
5    the defendant for as long as long-term physical health care
6    of the victim is required as a result of the offense. The
7    order may exceed the length of any sentence imposed upon
8    the defendant for the criminal activity. The court shall
9    include as a special finding in the judgment of conviction
10    its determination of the monthly cost of long-term physical
11    health care.
12        (3) After a sentencing order has been entered, the
13    court may from time to time, on the petition of either the
14    defendant or the victim, or upon its own motion, enter an
15    order for restitution for long-term physical care or modify
16    the existing order for restitution for long-term physical
17    care as to the amount of monthly payments. Any modification
18    of the order shall be based only upon a substantial change
19    of circumstances relating to the cost of long-term physical
20    health care or the financial condition of either the
21    defendant or the victim. The petition shall be filed as
22    part of the original criminal docket.
23        (g) In addition to the sentences provided for in
24    Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
25    11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
26    12-14.1, 12-15, and 12-16, and subdivision (a)(4) of

 

 

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1    Section 11-14.4, of the Criminal Code of 1961 or the
2    Criminal Code of 2012, the court may order any person who
3    is convicted of violating any of those Sections or who was
4    charged with any of those offenses and which charge was
5    reduced to another charge as a result of a plea agreement
6    under subsection (d) of this Section to meet all or any
7    portion of the financial obligations of treatment,
8    including but not limited to medical, psychiatric, or
9    rehabilitative treatment or psychological counseling,
10    prescribed for the victim or victims of the offense.
11        The payments shall be made by the defendant to the
12    clerk of the circuit court and transmitted by the clerk to
13    the appropriate person or agency as directed by the court.
14    Except as otherwise provided in subsection (f-1), the order
15    may require such payments to be made for a period not to
16    exceed 5 years after sentencing, not including periods of
17    incarceration.
18        (h) The judge may enter an order of withholding to
19    collect the amount of restitution owed in accordance with
20    Part 8 of Article XII of the Code of Civil Procedure.
21        (i) A sentence of restitution may be modified or
22    revoked by the court if the offender commits another
23    offense, or the offender fails to make restitution as
24    ordered by the court, but no sentence to make restitution
25    shall be revoked unless the court shall find that the
26    offender has had the financial ability to make restitution,

 

 

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1    and he has wilfully refused to do so. When the offender's
2    ability to pay restitution was established at the time an
3    order of restitution was entered or modified, or when the
4    offender's ability to pay was based on the offender's
5    willingness to make restitution as part of a plea agreement
6    made at the time the order of restitution was entered or
7    modified, there is a rebuttable presumption that the facts
8    and circumstances considered by the court at the hearing at
9    which the order of restitution was entered or modified
10    regarding the offender's ability or willingness to pay
11    restitution have not materially changed. If the court shall
12    find that the defendant has failed to make restitution and
13    that the failure is not wilful, the court may impose an
14    additional period of time within which to make restitution.
15    The length of the additional period shall not be more than
16    2 years. The court shall retain all of the incidents of the
17    original sentence, including the authority to modify or
18    enlarge the conditions, and to revoke or further modify the
19    sentence if the conditions of payment are violated during
20    the additional period.
21        (j) The procedure upon the filing of a Petition to
22    Revoke a sentence to make restitution shall be the same as
23    the procedures set forth in Section 5-6-4 of this Code
24    governing violation, modification, or revocation of
25    Probation, of Conditional Discharge, or of Supervision.
26        (k) Nothing contained in this Section shall preclude

 

 

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1    the right of any party to proceed in a civil action to
2    recover for any damages incurred due to the criminal
3    misconduct of the defendant.
4        (l) Restitution ordered under this Section shall not be
5    subject to disbursement by the circuit clerk under Section
6    27.5 of the Clerks of Courts Act.
7        (m) A restitution order under this Section is a
8    judgment lien in favor of the victim that:
9            (1) Attaches to the property of the person subject
10        to the order;
11            (2) May be perfected in the same manner as provided
12        in Part 3 of Article 9 of the Uniform Commercial Code;
13            (3) May be enforced to satisfy any payment that is
14        delinquent under the restitution order by the person in
15        whose favor the order is issued or the person's
16        assignee; and
17            (4) Expires in the same manner as a judgment lien
18        created in a civil proceeding.
19        When a restitution order is issued under this Section,
20    the issuing court shall send a certified copy of the order
21    to the clerk of the circuit court in the county where the
22    charge was filed. Upon receiving the order, the clerk shall
23    enter and index the order in the circuit court judgment
24    docket.
25        (n) An order of restitution under this Section does not
26    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
7of the sentence imposed for the offense.
8    A restitution order under this Section is not discharged by
9the liquidation of a person's estate by a receiver. A
10restitution order under this Section may be enforced in the
11same manner as judgment liens are enforced under Article XII of
12the Code of Civil Procedure.
13    The provisions of Section 2-1303 of the Code of Civil
14Procedure, providing for interest on judgments, apply to
15judgments for restitution entered under this Section.
16(Source: P.A. 96-290, eff. 8-11-09; 96-1551, eff. 7-1-11;
1797-482, eff. 1-1-12; 97-817, eff. 1-1-13; 97-1150, eff.
181-25-13.)