Full Text of HB0701 94th General Assembly
HB0701eng 94TH GENERAL ASSEMBLY
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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:
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| (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;
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| (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
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| (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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