Full Text of HB3449 94th General Assembly
HB3449enr 94TH GENERAL ASSEMBLY
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HB3449 Enrolled |
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LRB094 09070 RLC 39294 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 12-3.2 as follows:
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| (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)
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| Sec. 12-3.2. Domestic Battery.
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| (a) A person commits domestic battery if he intentionally | 9 |
| or knowingly
without legal justification by any means:
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| (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;
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| (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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| (b) Sentence. Domestic battery is a Class A misdemeanor.
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| Domestic battery is a Class 4 felony if the defendant has any
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| 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
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| (Section 12-4.6), stalking (Section 12-7.3), aggravated | 32 |
| stalking (Section
12-7.4), criminal sexual assault (Section |
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LRB094 09070 RLC 39294 b |
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| 12-13), aggravated criminal sexual
assault
(12-14), kidnapping | 2 |
| (Section 10-1), aggravated kidnapping (Section 10-2),
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| 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
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| against a
family or household member as defined in Section
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| 112A-3 of the Code of Criminal Procedure of 1963. In addition | 13 |
| to any other
sentencing alternatives, for any second or | 14 |
| subsequent conviction of violating this
Section, the
offender | 15 |
| shall be mandatorily sentenced to a minimum of 72
consecutive | 16 |
| hours of
imprisonment. The imprisonment shall not be subject to | 17 |
| suspension, nor shall
the person be eligible for probation in | 18 |
| order to reduce the sentence.
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| (c) Domestic battery committed in the presence of a child. | 20 |
| In addition to
any other sentencing alternatives, a defendant | 21 |
| who commits, in the presence of
a child, a felony domestic | 22 |
| battery (enhanced under subsection
(b)), aggravated domestic | 23 |
| battery (Section 12-3.3),
aggravated battery (Section 12-4), | 24 |
| unlawful restraint (Section
10-3), or aggravated unlawful | 25 |
| restraint (Section 10-3.1) against a family or
household | 26 |
| member, as defined in Section 112A-3 of the Code of Criminal
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| Procedure of 1963, shall be required to serve a mandatory | 28 |
| minimum imprisonment
of 10 days or perform 300 hours of | 29 |
| community service, or both. The defendant
shall further be | 30 |
| liable for the cost of any counseling required for the child
at | 31 |
| the discretion of the court in accordance
with subsection (b) | 32 |
| of Section 5-5-6 of the Unified Code of Corrections.
For | 33 |
| purposes of this Section, "child" means a person under 18
16
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| years of age
who is the defendant's or victim's child or | 35 |
| step-child or who is a minor child
residing
within or visiting | 36 |
| the household of the defendant or victim. For purposes of this |
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| Section,
"in the presence of a child" means in the physical | 2 |
| presence of a child or
knowing or having reason to know that a | 3 |
| child is present and may see or hear an
act constituting one of | 4 |
| the offenses listed in this subsection.
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| (Source: P.A. 92-16, eff. 6-28-01; 92-827, eff. 8-22-02; P.A. | 6 |
| 93-336, eff. 1-1-04; 93-809, eff. 1-1-05.)
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| Section 10. The Unified Code of Corrections is amended by | 8 |
| 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 | 11 |
| the Criminal
Code of 1961 in which the person received any | 12 |
| injury to their person or damage
to their real or personal | 13 |
| property as a result of the criminal act of the
defendant, the | 14 |
| court shall order restitution as provided in this Section. In
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| all other cases, except cases in which restitution is required | 16 |
| under this
Section, the court must at the sentence hearing | 17 |
| determine whether restitution
is an appropriate sentence to be | 18 |
| imposed on each defendant convicted of an
offense. If the court | 19 |
| determines that an order directing the offender to make
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| restitution is appropriate, the offender may be sentenced to | 21 |
| make restitution.
If
the offender is sentenced to make | 22 |
| restitution the Court shall determine the
restitution as | 23 |
| hereinafter set forth:
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| (a) At the sentence hearing, the court shall determine | 25 |
| whether the
property
may be restored in kind to the | 26 |
| possession of the owner or the person entitled
to | 27 |
| possession thereof; or whether the defendant is possessed | 28 |
| of sufficient
skill to repair and restore property damaged; | 29 |
| or whether the defendant should
be required to make | 30 |
| restitution in cash, for out-of-pocket expenses, damages,
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| losses, or injuries found to have been proximately caused | 32 |
| by the conduct
of the defendant or another for whom the | 33 |
| defendant is legally accountable
under the provisions of | 34 |
| Article V of the Criminal Code of 1961.
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| (b) In fixing the amount of restitution to be paid in | 2 |
| cash, the court
shall allow credit for property returned in | 3 |
| kind, for property damages ordered
to be repaired by the | 4 |
| defendant, and for property ordered to be restored
by the | 5 |
| defendant; and after granting the credit, the court shall | 6 |
| assess
the actual out-of-pocket expenses, losses, damages, | 7 |
| and injuries suffered
by the victim named in the charge and | 8 |
| any other victims who may also have
suffered out-of-pocket | 9 |
| expenses, losses, damages, and injuries proximately
caused | 10 |
| by the same criminal conduct of the defendant, and | 11 |
| insurance
carriers who have indemnified the named victim or | 12 |
| other victims for the
out-of-pocket expenses, losses, | 13 |
| damages, or injuries, provided that in no
event shall | 14 |
| 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 | 16 |
| convicted of,
domestic battery, the defendant shall be | 17 |
| required to pay restitution to any
domestic violence | 18 |
| shelter in which the victim and any other family or | 19 |
| household
members lived because of the domestic battery. | 20 |
| The amount of the restitution
shall equal the actual | 21 |
| expenses of the domestic violence shelter in providing
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| housing and any other services for the victim and any other | 23 |
| family or household
members living at the shelter. If a | 24 |
| 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 | 26 |
| an order
directing the sheriff to seize any real or | 27 |
| personal property of a defendant
to the extent necessary to | 28 |
| satisfy the order of restitution and dispose of
the | 29 |
| property by public sale. All proceeds from such sale in | 30 |
| excess of the
amount of restitution plus court costs and | 31 |
| the costs of the sheriff in
conducting the sale shall be | 32 |
| paid to the defendant. The defendant convicted of
domestic | 33 |
| battery, if a person under 18 years of age who is the child | 34 |
| of the
offender or of the victim was present and witnessed | 35 |
| the domestic battery of the
victim, is liable to pay | 36 |
| restitution for the cost of any counseling required
for
the |
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LRB094 09070 RLC 39294 b |
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| child at the discretion of the court.
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| (c) In cases where more than one defendant is | 3 |
| accountable for the same
criminal conduct that results in | 4 |
| out-of-pocket expenses, losses, damages,
or injuries, each | 5 |
| defendant shall be ordered to pay restitution in the amount
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| of the total actual out-of-pocket expenses, losses, | 7 |
| damages, or injuries
to the victim proximately caused by | 8 |
| the conduct of all of the defendants
who are legally | 9 |
| accountable for the offense.
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| (1) In no event shall the victim be entitled to | 11 |
| recover restitution in
excess of the actual | 12 |
| out-of-pocket expenses, losses, damages, or injuries,
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| proximately caused by the conduct of all of the | 14 |
| defendants.
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| (2) As between the defendants, the court may | 16 |
| apportion the restitution
that is payable in | 17 |
| 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 | 20 |
| the restitution,
each defendant shall bear his pro rata | 21 |
| share of the restitution.
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| (4) As between the defendants, each defendant | 23 |
| shall be entitled to a pro
rata reduction in the total | 24 |
| restitution required to be paid to the victim
for | 25 |
| amounts of restitution actually paid by co-defendants, | 26 |
| and defendants
who shall have paid more than their pro | 27 |
| rata share shall be entitled to
refunds to be computed | 28 |
| by the court as additional amounts are
paid by | 29 |
| co-defendants.
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| (d) In instances where a defendant has more than one | 31 |
| criminal charge
pending
against him in a single case, or | 32 |
| more than one case, and the defendant stands
convicted of | 33 |
| one or more charges, a plea agreement negotiated by the | 34 |
| State's
Attorney and the defendants may require the | 35 |
| defendant to make restitution
to victims of charges that | 36 |
| have been dismissed or which it is contemplated
will be |
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HB3449 Enrolled |
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LRB094 09070 RLC 39294 b |
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| dismissed under the terms of the plea agreement, and under | 2 |
| the
agreement, the court may impose a sentence of | 3 |
| restitution on the charge
or charges of which the defendant | 4 |
| has been convicted that would require
the defendant to make | 5 |
| restitution to victims of other offenses as provided
in the | 6 |
| plea agreement.
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| (e) The court may require the defendant to apply the | 8 |
| balance of the cash
bond, after payment of court costs, and | 9 |
| any fine that may be imposed to
the payment of restitution.
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| (f) Taking into consideration the ability of the | 11 |
| defendant to pay,
the court shall determine whether | 12 |
| restitution shall be paid in a single
payment or in | 13 |
| installments, and shall fix a period of time not in excess
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| of 5 years, not including periods of incarceration, within | 15 |
| which payment of
restitution is to be paid in full.
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| Complete restitution shall be paid in as short a time | 17 |
| period as possible.
However, if the court deems it | 18 |
| necessary and in the best interest of the
victim, the court | 19 |
| may extend beyond 5 years the period of time within which | 20 |
| the
payment of restitution is to be paid.
If the defendant | 21 |
| 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 | 23 |
| months, the court
shall order that the defendant make | 24 |
| monthly payments; the court may waive
this requirement of | 25 |
| monthly payments only if there is a specific finding of
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| good cause for waiver.
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| (g) The court shall, after determining that the | 28 |
| defendant has the
ability to pay, require the defendant to | 29 |
| pay for the
victim's counseling services if:
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| (1) the defendant was convicted of an offense under | 31 |
| Sections 11-19.2,
11-20.1, 12-13, 12-14, 12-14.1, | 32 |
| 12-15 or 12-16 of the Criminal Code of
1961,
or was | 33 |
| charged with such an offense and the charge was reduced | 34 |
| to another
charge as a result of a plea agreement under | 35 |
| subsection (d) of this Section,
and
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| (2) the victim was under 18 years of age at the |
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| time the
offense was committed and requires counseling | 2 |
| as a result of the offense.
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| The payments shall be made by the defendant to the | 4 |
| clerk of the circuit
court
and transmitted by the clerk to | 5 |
| the appropriate person or agency as directed by
the court. | 6 |
| The order may require such payments to be made for a period | 7 |
| not to
exceed 5 years after sentencing, not including | 8 |
| periods of incarceration.
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| (h) The judge may enter an order of withholding to | 10 |
| collect the amount
of restitution owed in accordance with | 11 |
| Part 8 of Article XII of the Code of
Civil Procedure.
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| (i) A sentence of restitution may be modified or | 13 |
| revoked by the court
if the offender commits another | 14 |
| offense, or the offender fails to make
restitution as | 15 |
| ordered by the court, but no sentence to make restitution
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| shall be revoked unless the court shall find that the | 17 |
| offender has had the
financial ability to make restitution, | 18 |
| and he has wilfully refused to do
so. When the offender's | 19 |
| ability to pay restitution was established at the time
an | 20 |
| order of restitution was entered or modified, or when the | 21 |
| offender's ability
to pay was based on the offender's | 22 |
| willingness to make restitution as part of a
plea agreement | 23 |
| made at the time the order of restitution was entered or
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| modified, there is a rebuttable presumption that the facts | 25 |
| and circumstances
considered by the court at the hearing at | 26 |
| which the order of restitution was
entered or modified | 27 |
| regarding the offender's ability or willingness to pay
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| restitution have not materially changed. If the court shall | 29 |
| find that the
defendant has failed to make
restitution and | 30 |
| that the failure is not wilful, the court may impose an
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| additional period of time within which to make restitution. | 32 |
| The length of
the additional period shall not be more than | 33 |
| 2 years. The court shall
retain all of the incidents of the | 34 |
| original sentence, including the
authority to modify or | 35 |
| enlarge the conditions, and to revoke or further
modify the | 36 |
| sentence if the conditions of payment are violated during |
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LRB094 09070 RLC 39294 b |
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| the
additional period.
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| (j) The procedure upon the filing of a Petition to | 3 |
| Revoke a sentence to
make restitution shall be the same as | 4 |
| the procedures set forth in Section
5-6-4 of this Code | 5 |
| 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 | 8 |
| the right of any
party to proceed in a civil action to | 9 |
| recover for any damages incurred due
to the criminal | 10 |
| 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 | 13 |
| 27.5 of the
Clerks of Courts Act.
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| (m) A restitution order under this Section is a | 15 |
| judgment lien in favor
of
the victim that:
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| (1) Attaches to the property of the person subject | 17 |
| to the order;
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| (2) May be perfected in the same manner as provided | 19 |
| 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 | 21 |
| delinquent under the
restitution order by the person in | 22 |
| whose favor the order is issued or the
person's | 23 |
| assignee; and
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| (4) Expires in the same manner as a judgment lien | 25 |
| created in a civil
proceeding.
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| When a restitution order is issued under this Section, | 27 |
| the issuing court
shall send a certified copy of the order | 28 |
| to the clerk of the circuit court
in the county where the | 29 |
| charge was filed. Upon receiving the order, the
clerk shall | 30 |
| enter and index the order in the circuit court judgment | 31 |
| docket.
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| (n) An order of restitution under this Section does not | 33 |
| bar
a civil action for:
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| (1) Damages that the court did not require the | 35 |
| person to pay to the
victim under the restitution order | 36 |
| but arise from an injury or property
damages that is |
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LRB094 09070 RLC 39294 b |
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| 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 | 4 |
| of the sentence imposed for the offense.
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| A restitution order under this Section is not discharged by | 6 |
| the
liquidation of a person's estate by a receiver. A | 7 |
| restitution order under
this Section may be enforced in the | 8 |
| same manner as judgment liens are
enforced under Article XII of | 9 |
| the Code of Civil Procedure.
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| The provisions of Section 2-1303 of the Code of Civil | 11 |
| Procedure,
providing for interest on judgments, apply to | 12 |
| 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, | 14 |
| eff. 1-1-00; 92-16, eff. 6-28-01.)
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