SB1402ham001 100TH GENERAL ASSEMBLY

Rep. Elgie R. Sims, Jr.

Filed: 5/29/2017

10000SB1402ham001 LRB100 08099 MRW 27204 a

AMENDMENT TO SENATE BILL 1402

AMENDMENT NO. ______. Amend Senate Bill 1402 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by adding the heading of Article 112B and Sections 112B-1, 112B-2, 112B-3, 112B-4, and 112B-5 as follows:

(725 ILCS 5/Art. 112B heading new)

ARTICLE 112B. ASSET DISSIPATION RELIEF

(725 ILCS 5/112B-1 new)

Sec. 112B-1. Definitions. In this Article:

"Asset" means anything that may be the subject of ownership, whether real or personal, tangible or intangible, or legal or equitable, or any interest in it, which is not exempt from execution under applicable law.

"Crime of violence" has the meaning ascribed to it in Section 2 of the Crime Victims Compensation Act.

"Dissipate" means to take an action with regard to an asset of a defendant to defeat satisfaction of an existing or future judgment for a fine, restitution, assessment, or court costs after conviction, including:

(1) selling, removing, transferring, assigning, encumbering, or similarly dealing with the asset;

(2) instructing, requesting, counseling, demanding, or encouraging any other person to take an action described in paragraph (1) of this definition; and

(3) facilitating, assisting in, aiding, abetting, or participating in an action described in paragraph (1) or (2) of this definition.

"Lien" means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.

"Nonparty" means a person that is not a defendant and has custody or control of an asset of a defendant who is subject to an asset dissipation relief order. The term includes a person that holds a joint ownership interest in an asset with a defendant against which an asset dissipation relief order has been entered.

"Sex offense" means a violation of Article 11 of the Criminal Code of 1961 or the Criminal Code of 2012.

"State" means the prosecutor who filed the charge against the defendant and brings an action for an asset dissipation relief order.

"Transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

"Transferee" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(725 ILCS 5/112B-2 new)

Sec. 112B-2. Scope.

(a) This Article applies to the property of a defendant charged with or convicted of a crime of violence or sex offense in which the victim is under 18 years of age.

(b) This Article does not apply to or limit a right or remedy available to the State, defendant, or nonparty to the extent that a federal law or regulation preempts this Article.

(c) This Article does not affect a right or remedy including a right or remedy arising from the creation, perfection, priority, or enforcement of a security interest or other interests that existed before an order takes effect.

(d) This Article does not prevent the exercise of other remedies not inconsistent with this Article.

(725 ILCS 5/112B-3 new)

Sec. 112B-3. Asset dissipation relief.

(a) The State may seek asset dissipation relief against a transfer or obligation of an asset knowingly made to dissipate the asset and may obtain:

(1) avoidance of the transfer or obligation to the extent necessary to satisfy an existing or future judgment for a fine, restitution, assessment, or court costs;

(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by the Code of Civil Procedure; or

(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure:

(A) an injunction against further disposition by the defendant or a transferee, or both, of the asset transferred or of other property;

(B) appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or

(C) any other relief the circumstances may require.

(b) Notwithstanding voidability of a transfer or an obligation under this Section, a good-faith transferee or obligee is entitled, to the extent of the value given the defendant for the transfer or obligation, to: (1) a lien on or a right to retain any interest in the asset transferred; or (2) enforcement of any obligation incurred.

(c) The court shall limit an asset dissipation relief order to provide a sufficient amount to provide the legal representation needs of the defendant for any pending criminal charge against him or her, including responding and contesting motions and orders under this Article.

(d) An asset dissipation relief order remains in effect until it is vacated by the court, or the criminal charge is resolved by agreement of the State and defendant, operation of law, or satisfaction of a judgment entered against the defendant against whom the order was issued.

(725 ILCS 5/112B-4 new)

Sec. 112B-4. Indemnity.

The court may indemnify a nonparty for the reasonable costs of compliance with the order and compensate for any loss caused by the order from the assets of the defendant.

(725 ILCS 5/112B-5 new)

Sec. 112B-5. Appeal. The State, defendant, or nonparty may appeal an order issued, including an interlocutory appeal, under this Article granting, continuing, modifying, refusing, or dissolving an asset dissipation relief order.".