Full Text of HB0701 94th General Assembly
HB0701 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 HB0701
Introduced 02/01/05, by Rep. Eileen Lyons SYNOPSIS AS INTRODUCED: |
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720 ILCS 5/12-18 |
from Ch. 38, par. 12-18 |
730 ILCS 5/5-5-6 |
from Ch. 38, par. 1005-5-6 |
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Amends the Criminal Code of 1961 and the Unified Code of Corrections. Provides that the court may consider restitution an appropriate sentence to be imposed on each defendant convicted of an offense in addition to a sentence of imprisonment. Provides that the court shall take into consideration any real or personal property or other assets of the defendant when it orders restitution. Provides that in addition to any other penalty prescribed by law and any restitution ordered that did not include long-term physical health care costs, the court may, upon conviction of any misdemeanor or felony, order a defendant to pay restitution to a victim if the victim has suffered physical injury as a result of the offense that is reasonably probable to require or has required long-term physical health care for more than 3 months. Provides that long-term physical health care includes mental health care. Provides that the sentence of the defendant to a term of imprisonment is not a mitigating factor that prevents the court from ordering the defendant to pay restitution. Provides that an order of restitution for long-term physical health care costs shall fix a monthly amount to be paid by the defendant for as long as long-term physical health care of the victim is required as a result of the offense. Provides that the order may exceed the length of any sentence imposed upon the defendant for the criminal activity. Provides that in addition to the sentences provided for the offenses of exploitation of a child, child pornography, criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, and aggravated criminal sexual abuse, the court may
order any person who is convicted of violating any of those offenses or who was charged with any of those offenses and which charge was reduced to another charge as a result of a plea agreement to meet
all or any portion of the financial obligations of treatment, including but not
limited to medical, psychiatric, or rehabilitative treatment or psychological counseling,
prescribed for the victim or victims of the offense.
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A BILL FOR
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HB0701 |
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LRB094 05298 RLC 37185 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing | 5 |
| Section 12-18 as follows:
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| (720 ILCS 5/12-18) (from Ch. 38, par. 12-18)
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| Sec. 12-18. General Provisions.
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| (a) No person accused of violating Sections 12-13, 12-14, | 9 |
| 12-15 or 12-16
of this Code shall be presumed to be incapable | 10 |
| of committing an offense
prohibited by Sections 12-13, 12-14, | 11 |
| 12-14.1, 12-15 or 12-16 of this Code
because of age, physical | 12 |
| condition or relationship to the victim, except as
otherwise | 13 |
| provided in subsection (c) of this Section. Nothing in this | 14 |
| Section
shall be construed to modify or abrogate the | 15 |
| affirmative defense of infancy
under Section 6-1 of this Code | 16 |
| or the provisions of Section 5-805 of the
Juvenile Court Act of | 17 |
| 1987.
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| (b) Any medical examination or procedure which is conducted | 19 |
| by a physician,
nurse, medical or hospital personnel, parent, | 20 |
| or caretaker for purposes
and in a manner consistent with | 21 |
| reasonable medical standards is not an offense
under Sections | 22 |
| 12-13, 12-14, 12-14.1, 12-15 and 12-16 of this Code.
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| (c) (Blank).
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| (d) (Blank).
In addition to the sentences provided for in | 25 |
| Sections 12-13,
12-14, 12-14.1, 12-15 and 12-16 of the Criminal | 26 |
| Code of 1961 the Court may
order any person who is convicted of | 27 |
| violating any of those Sections to meet
all or any portion of | 28 |
| the financial obligations of treatment, including but not
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| limited to medical, psychiatric, rehabilitative or | 30 |
| psychological treatment,
prescribed for the victim or victims | 31 |
| of the offense.
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| (e) After a finding at a preliminary hearing that there is |
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| probable
cause to believe that an accused has committed a | 2 |
| violation of Section
12-13, 12-14, or 12-14.1 of this Code, or | 3 |
| after an indictment is returned
charging an accused with a | 4 |
| violation of Section 12-13, 12-14, or 12-14.1 of
this Code,
or | 5 |
| after a finding that a defendant charged with a violation of | 6 |
| Section
12-13, 12-14, or 12-14.1 of this Code is unfit to stand | 7 |
| trial pursuant to
Section 104-16 of the Code of
Criminal | 8 |
| Procedure of 1963 where the finding is made prior to | 9 |
| preliminary
hearing,
at the request of the person who was the | 10 |
| victim of the violation of
Section 12-13, 12-14, or 12-14.1, | 11 |
| the prosecuting State's attorney shall seek
an order from the | 12 |
| court to compel the accused to be tested for any sexually
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| transmissible disease, including a test for infection with
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| human immunodeficiency virus (HIV). The medical tests shall be
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| performed only
by appropriately licensed medical | 16 |
| practitioners. The test for infection with
human | 17 |
| immunodeficiency virus (HIV) shall consist of an
enzyme-linked | 18 |
| immunosorbent assay (ELISA) test, or such other test as may
be | 19 |
| approved by the Illinois Department of Public Health; in the | 20 |
| event of a
positive result, the Western Blot Assay or a more | 21 |
| reliable confirmatory
test shall be administered. The results | 22 |
| of the tests shall be
kept
strictly confidential by all medical | 23 |
| personnel involved in the testing and
must be personally | 24 |
| delivered in a sealed envelope to the victim and to the
judge | 25 |
| who entered the order, for the judge's inspection in camera. | 26 |
| Acting
in accordance with the best interests of the victim and | 27 |
| the public, the
judge shall have the discretion to determine to | 28 |
| whom, if anyone, the result
of the testing may be revealed; | 29 |
| however, in no case shall the identity of
the victim be | 30 |
| disclosed. The court shall order that the cost of the tests
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| shall be paid by the county, and may be taxed as costs against | 32 |
| the accused
if convicted.
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| (f) Whenever any law enforcement officer has reasonable | 34 |
| cause to believe
that a person has been delivered a controlled | 35 |
| substance without his or her
consent, the law enforcement | 36 |
| officer shall advise the victim about seeking
medical treatment |
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| and preserving evidence.
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| (g) Every hospital providing emergency hospital services | 3 |
| to an alleged
sexual assault survivor, when there is reasonable
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| cause to believe that a person has been delivered a controlled | 5 |
| substance
without his or her consent, shall designate personnel | 6 |
| to provide:
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| (1) An explanation to the victim about the nature and | 8 |
| effects of commonly
used controlled substances and how such | 9 |
| controlled substances are administered.
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| (2) An offer to the victim of testing for the presence | 11 |
| of such controlled
substances.
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| (3) A disclosure to the victim that all controlled | 13 |
| substances or alcohol
ingested by the victim will be | 14 |
| disclosed by the test.
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| (4) A statement that the test is completely voluntary.
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| (5) A form for written authorization for sample | 17 |
| analysis of all controlled
substances and alcohol ingested | 18 |
| by the victim.
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| A physician licensed to practice medicine in all its | 20 |
| branches may agree to
be a designated person under this | 21 |
| subsection.
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| No sample analysis may be performed unless the victim
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| returns a signed written authorization within 30 days
after the | 24 |
| sample was
collected.
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| Any medical treatment or care under this subsection shall | 26 |
| be only in
accordance with the order of a physician licensed to | 27 |
| practice medicine in all
of its branches. Any testing under | 28 |
| this subsection shall be only in accordance
with the order of a | 29 |
| licensed individual authorized to order the testing.
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| (Source: P.A. 92-81, eff. 7-12-01; 93-958, eff. 8-20-04.)
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| Section 10. The Unified Code of Corrections is amended by | 32 |
| changing Section 5-5-6 as follows:
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| (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
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| Sec. 5-5-6. In all convictions for offenses in violation of |
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| the Criminal
Code of 1961 in which the person received any | 2 |
| injury to their person or damage
to their real or personal | 3 |
| property as a result of the criminal act of the
defendant, the | 4 |
| court shall order restitution as provided in this Section. In
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| all other cases, except cases in which restitution is required | 6 |
| under this
Section, the court must at the sentence hearing | 7 |
| determine whether restitution
is an appropriate sentence to be | 8 |
| imposed on each defendant convicted of an
offense. If the court | 9 |
| determines that an order directing the offender to make
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| restitution is appropriate, the offender may be sentenced to | 11 |
| make restitution.
The court may consider restitution an | 12 |
| appropriate sentence to be imposed on each defendant convicted | 13 |
| of an offense in addition to a sentence of imprisonment. The | 14 |
| sentence of the defendant to a term of imprisonment is not a | 15 |
| mitigating factor that prevents the court from ordering the | 16 |
| defendant to pay restitution. If
the offender is sentenced to | 17 |
| make restitution the Court shall determine the
restitution as | 18 |
| hereinafter set forth:
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| (a) At the sentence hearing, the court shall determine | 20 |
| whether the
property
may be restored in kind to the | 21 |
| possession of the owner or the person entitled
to | 22 |
| possession thereof; or whether the defendant is possessed | 23 |
| of sufficient
skill to repair and restore property damaged; | 24 |
| or whether the defendant should
be required to make | 25 |
| restitution in cash, for out-of-pocket expenses, damages,
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| losses, or injuries found to have been proximately caused | 27 |
| by the conduct
of the defendant or another for whom the | 28 |
| defendant is legally accountable
under the provisions of | 29 |
| Article V of the Criminal Code of 1961.
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| (b) In fixing the amount of restitution to be paid in | 31 |
| cash, the court
shall allow credit for property returned in | 32 |
| kind, for property damages ordered
to be repaired by the | 33 |
| defendant, and for property ordered to be restored
by the | 34 |
| defendant; and after granting the credit, the court shall | 35 |
| assess
the actual out-of-pocket expenses, losses, damages, | 36 |
| and injuries suffered
by the victim named in the charge and |
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| any other victims who may also have
suffered out-of-pocket | 2 |
| expenses, losses, damages, and injuries proximately
caused | 3 |
| by the same criminal conduct of the defendant, and | 4 |
| insurance
carriers who have indemnified the named victim or | 5 |
| other victims for the
out-of-pocket expenses, losses, | 6 |
| damages, or injuries, provided that in no
event shall | 7 |
| restitution be ordered to be paid on account of pain and
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| suffering. If a defendant is placed on supervision for, or | 9 |
| convicted of,
domestic battery, the defendant shall be | 10 |
| required to pay restitution to any
domestic violence | 11 |
| shelter in which the victim and any other family or | 12 |
| household
members lived because of the domestic battery. | 13 |
| The amount of the restitution
shall equal the actual | 14 |
| expenses of the domestic violence shelter in providing
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| housing and any other services for the victim and any other | 16 |
| family or household
members living at the shelter. If a | 17 |
| defendant fails to pay restitution in
the manner or within
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| the time period specified by the court, the court may enter | 19 |
| an order
directing the sheriff to seize any real or | 20 |
| personal property of a defendant
to the extent necessary to | 21 |
| satisfy the order of restitution and dispose of
the | 22 |
| property by public sale. All proceeds from such sale in | 23 |
| excess of the
amount of restitution plus court costs and | 24 |
| the costs of the sheriff in
conducting the sale shall be | 25 |
| paid to the defendant. The defendant convicted of
domestic | 26 |
| battery, if a person under 18 years of age who is the child | 27 |
| of the
offender or of the victim was present and witnessed | 28 |
| the domestic battery of the
victim, is liable to pay | 29 |
| restitution for the cost of any counseling required
for
the | 30 |
| child at the discretion of the court.
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| (c) In cases where more than one defendant is | 32 |
| accountable for the same
criminal conduct that results in | 33 |
| out-of-pocket expenses, losses, damages,
or injuries, each | 34 |
| defendant shall be ordered to pay restitution in the amount
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| of the total actual out-of-pocket expenses, losses, | 36 |
| damages, or injuries
to the victim proximately caused by |
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| the conduct of all of the defendants
who are legally | 2 |
| accountable for the offense.
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| (1) In no event shall the victim be entitled to | 4 |
| recover restitution in
excess of the actual | 5 |
| out-of-pocket expenses, losses, damages, or injuries,
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| proximately caused by the conduct of all of the | 7 |
| defendants.
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| (2) As between the defendants, the court may | 9 |
| apportion the restitution
that is payable in | 10 |
| proportion to each co-defendant's culpability in the
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| commission of the offense.
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| (3) In the absence of a specific order apportioning | 13 |
| the restitution,
each defendant shall bear his pro rata | 14 |
| share of the restitution.
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| (4) As between the defendants, each defendant | 16 |
| shall be entitled to a pro
rata reduction in the total | 17 |
| restitution required to be paid to the victim
for | 18 |
| amounts of restitution actually paid by co-defendants, | 19 |
| and defendants
who shall have paid more than their pro | 20 |
| rata share shall be entitled to
refunds to be computed | 21 |
| by the court as additional amounts are
paid by | 22 |
| co-defendants.
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| (d) In instances where a defendant has more than one | 24 |
| criminal charge
pending
against him in a single case, or | 25 |
| more than one case, and the defendant stands
convicted of | 26 |
| one or more charges, a plea agreement negotiated by the | 27 |
| State's
Attorney and the defendants may require the | 28 |
| defendant to make restitution
to victims of charges that | 29 |
| have been dismissed or which it is contemplated
will be | 30 |
| dismissed under the terms of the plea agreement, and under | 31 |
| the
agreement, the court may impose a sentence of | 32 |
| restitution on the charge
or charges of which the defendant | 33 |
| has been convicted that would require
the defendant to make | 34 |
| restitution to victims of other offenses as provided
in the | 35 |
| plea agreement.
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| (e) The court may require the defendant to apply the |
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| balance of the cash
bond, after payment of court costs, and | 2 |
| any fine that may be imposed to
the payment of restitution.
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| (f) Taking into consideration the ability of the | 4 |
| defendant to pay, including any real or personal property | 5 |
| or any other assets of the defendant,
the court shall | 6 |
| determine whether restitution shall be paid in a single
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| payment or in installments, and shall fix a period of time | 8 |
| not in excess
of 5 years or the period of time specified in | 9 |
| subsection (f-1) , not including periods of incarceration, | 10 |
| within which payment of
restitution is to be paid in full.
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| Complete restitution shall be paid in as short a time | 12 |
| period as possible.
However, if the court deems it | 13 |
| necessary and in the best interest of the
victim, the court | 14 |
| may extend beyond 5 years the period of time within which | 15 |
| the
payment of restitution is to be paid.
If the defendant | 16 |
| is ordered to pay restitution and the court orders that
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| restitution is to be paid over a period greater than 6 | 18 |
| months, the court
shall order that the defendant make | 19 |
| monthly payments; the court may waive
this requirement of | 20 |
| monthly payments only if there is a specific finding of
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| good cause for waiver.
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| (f-1)(1) In addition to any other penalty prescribed by | 23 |
| law and any restitution ordered under this Section that did | 24 |
| not include long-term physical health care costs, the court | 25 |
| may, upon conviction of any misdemeanor or felony, order a | 26 |
| defendant to pay restitution to a victim in accordance with | 27 |
| the provisions of this subsection (f-1) if the victim has | 28 |
| suffered physical injury as a result of the offense that is | 29 |
| reasonably probable to require or has required long-term | 30 |
| physical health care for more than 3 months. As used in | 31 |
| this subsection (f-1) "long-term physical health care" | 32 |
| includes mental health care.
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| (2) The victim's estimate of long-term physical health | 34 |
| care costs may be made as part of a victim impact statement | 35 |
| under Section 6 of the Rights of Crime Victims and | 36 |
| Witnesses Act or made separately. The court shall enter the |
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| long-term physical health care restitution order at the | 2 |
| time of sentencing. An order of restitution made under this | 3 |
| subsection (f-1) shall fix a monthly amount to be paid by | 4 |
| the defendant for as long as long-term physical health care | 5 |
| of the victim is required as a result of the offense. The | 6 |
| order may exceed the length of any sentence imposed upon | 7 |
| the defendant for the criminal activity. The court shall | 8 |
| include as a special finding in the judgment of conviction | 9 |
| its determination of the monthly cost of long-term physical | 10 |
| health care.
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| (3) After a sentencing order has been entered, the | 12 |
| court may from time to time, on the petition of either the | 13 |
| defendant or the victim, or upon its own motion, enter an | 14 |
| order for restitution for long-term physical care or modify | 15 |
| the existing order for restitution for long-term physical | 16 |
| care as to the amount of monthly payments. Any modification | 17 |
| of the order shall be based only upon a substantial change | 18 |
| of circumstances relating to the cost of long-term physical | 19 |
| health care or the financial condition of either the | 20 |
| defendant or the victim. The petition shall be filed as | 21 |
| part of the original criminal docket.
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| (g) In addition to the sentences provided for in | 23 |
| Sections 11-19.2, 11-20.1, 12-13,
12-14, 12-14.1, 12-15, | 24 |
| and 12-16 of the Criminal Code of 1961, the court may
order | 25 |
| any person who is convicted of violating any of those | 26 |
| Sections or who was charged with any of those offenses and | 27 |
| which charge was reduced to another charge as a result of a | 28 |
| plea agreement under subsection (d) of this Section to meet
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| all or any portion of the financial obligations of | 30 |
| treatment, including but not
limited to medical, | 31 |
| psychiatric, or rehabilitative treatment or psychological | 32 |
| counseling,
prescribed for the victim or victims of the | 33 |
| offense.
The court shall, after determining that the | 34 |
| defendant has the
ability to pay, require the defendant to | 35 |
| pay for the
victim's counseling services if:
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| (1) the defendant was convicted of an offense under |
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| Sections 11-19.2,
11-20.1, 12-13, 12-14, 12-14.1, | 2 |
| 12-15 or 12-16 of the Criminal Code of
1961,
or was | 3 |
| charged with such an offense and the charge was reduced | 4 |
| to another
charge as a result of a plea agreement under | 5 |
| subsection (d) of this Section,
and
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| (2) the victim was under 18 years of age at the | 7 |
| time the
offense was committed and requires counseling | 8 |
| as a result of the offense.
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| The payments shall be made by the defendant to the | 10 |
| clerk of the circuit
court
and transmitted by the clerk to | 11 |
| the appropriate person or agency as directed by
the court. | 12 |
| Except as otherwise provided in subsection (f-1), the
The
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| order may require such payments to be made for a period not | 14 |
| to
exceed 5 years after sentencing, not including periods | 15 |
| of incarceration.
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| (h) The judge may enter an order of withholding to | 17 |
| collect the amount
of restitution owed in accordance with | 18 |
| Part 8 of Article XII of the Code of
Civil Procedure.
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| (i) A sentence of restitution may be modified or | 20 |
| revoked by the court
if the offender commits another | 21 |
| offense, or the offender fails to make
restitution as | 22 |
| ordered by the court, but no sentence to make restitution
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| shall be revoked unless the court shall find that the | 24 |
| offender has had the
financial ability to make restitution, | 25 |
| and he has wilfully refused to do
so. When the offender's | 26 |
| ability to pay restitution was established at the time
an | 27 |
| order of restitution was entered or modified, or when the | 28 |
| offender's ability
to pay was based on the offender's | 29 |
| willingness to make restitution as part of a
plea agreement | 30 |
| made at the time the order of restitution was entered or
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| modified, there is a rebuttable presumption that the facts | 32 |
| and circumstances
considered by the court at the hearing at | 33 |
| which the order of restitution was
entered or modified | 34 |
| regarding the offender's ability or willingness to pay
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| restitution have not materially changed. If the court shall | 36 |
| find that the
defendant has failed to make
restitution and |
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| that the failure is not wilful, the court may impose an
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| additional period of time within which to make restitution. | 3 |
| The length of
the additional period shall not be more than | 4 |
| 2 years. The court shall
retain all of the incidents of the | 5 |
| original sentence, including the
authority to modify or | 6 |
| enlarge the conditions, and to revoke or further
modify the | 7 |
| sentence if the conditions of payment are violated during | 8 |
| the
additional period.
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| (j) The procedure upon the filing of a Petition to | 10 |
| Revoke a sentence to
make restitution shall be the same as | 11 |
| the procedures set forth in Section
5-6-4 of this Code | 12 |
| governing violation, modification, or revocation of
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| Probation, of Conditional Discharge, or of Supervision.
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| (k) Nothing contained in this Section shall preclude | 15 |
| the right of any
party to proceed in a civil action to | 16 |
| recover for any damages incurred due
to the criminal | 17 |
| misconduct of the defendant.
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| (l) Restitution ordered under this Section shall not be
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| subject to disbursement by the circuit clerk under Section | 20 |
| 27.5 of the
Clerks of Courts Act.
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| (m) A restitution order under this Section is a | 22 |
| judgment lien in favor
of
the victim that:
| 23 |
| (1) Attaches to the property of the person subject | 24 |
| to the order;
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| (2) May be perfected in the same manner as provided | 26 |
| in Part 3 of Article
9 of the Uniform Commercial Code;
| 27 |
| (3) May be enforced to satisfy any payment that is | 28 |
| delinquent under the
restitution order by the person in | 29 |
| whose favor the order is issued or the
person's | 30 |
| assignee; and
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| (4) Expires in the same manner as a judgment lien | 32 |
| created in a civil
proceeding.
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| When a restitution order is issued under this Section, | 34 |
| the issuing court
shall send a certified copy of the order | 35 |
| to the clerk of the circuit court
in the county where the | 36 |
| charge was filed. Upon receiving the order, the
clerk shall |
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| enter and index the order in the circuit court judgment | 2 |
| docket.
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| (n) An order of restitution under this Section does not | 4 |
| bar
a civil action for:
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| (1) Damages that the court did not require the | 6 |
| person to pay to the
victim under the restitution order | 7 |
| but arise from an injury or property
damages that is | 8 |
| the basis of restitution ordered by the court; and
| 9 |
| (2) Other damages suffered by the victim.
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| The restitution order is not discharged by the
completion | 11 |
| of the sentence imposed for the offense.
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| A restitution order under this Section is not discharged by | 13 |
| the
liquidation of a person's estate by a receiver. A | 14 |
| restitution order under
this Section may be enforced in the | 15 |
| same manner as judgment liens are
enforced under Article XII of | 16 |
| the Code of Civil Procedure.
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| The provisions of Section 2-1303 of the Code of Civil | 18 |
| Procedure,
providing for interest on judgments, apply to | 19 |
| judgments for restitution entered
under this Section.
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| (Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00;
91-420, | 21 |
| eff. 1-1-00; 92-16, eff. 6-28-01.)
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