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90_SB0789eng
730 ILCS 5/5-5-6 from Ch. 38, par. 1005-5-6
730 ILCS 5/5-6-2 from Ch. 38, par. 1005-6-2
Amends the Unified Code of Corrections. Provides that
complete restitution shall be paid by the defendant in as
short a time as possible. Provides that when the court
considers modification or revocation of restitution, there is
a rebuttable presumption that the facts and circumstances
considered by the court at the hearing at which restitution
was ordered or modified regarding the offender's ability or
willingness to pay restitution have not materially changed.
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1 AN ACT to amend the Unified Code of Corrections by
2 changing Sections 5-5-6 and 5-6-2.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Unified Code of Corrections is amended by
6 changing Sections 5-5-6 and 5-6-2 as follows:
7 (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
8 Sec. 5-5-6. In all convictions for offenses in violation
9 of the Criminal Code of 1961 in which the person received any
10 injury to their person or damage to their real or personal
11 property as a result of the criminal act of the defendant,
12 the court shall order restitution as provided in this
13 Section. When the offender is sentenced to make restitution
14 the Court shall determine the restitution as hereinafter set
15 forth:
16 (a) At the sentence hearing, the court shall
17 determine whether the property may be restored in kind to
18 the possession of the owner or the person entitled to
19 possession thereof; or whether the defendant is possessed
20 of sufficient skill to repair and restore property
21 damaged; or whether the defendant should be required to
22 make restitution in cash, for out-of-pocket expenses,
23 damages, losses, or injuries found to have been
24 proximately caused by the conduct of the defendant or
25 another for whom the defendant is legally accountable
26 under the provisions of Article V of the Criminal Code of
27 1961.
28 (b) In fixing the amount of restitution to be paid
29 in cash, the court shall allow credit for property
30 returned in kind, for property damages ordered to be
31 repaired by the defendant, and for property ordered to be
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1 restored by the defendant; and after granting the credit,
2 the court shall assess the actual out-of-pocket expenses,
3 losses, damages, and injuries suffered by the victim
4 named in the charge and any other victims who may also
5 have suffered out-of-pocket expenses, losses, damages,
6 and injuries proximately caused by the same criminal
7 conduct of the defendant, and insurance carriers who have
8 indemnified the named victim or other victims for the
9 out-of-pocket expenses, losses, damages, or injuries,
10 provided that in no event shall restitution be ordered to
11 be paid on account of pain and suffering. If a defendant
12 is placed on supervision for, or convicted of, domestic
13 battery, the defendant shall be required to pay
14 restitution to any domestic violence shelter in which the
15 victim and any other family or household members lived
16 because of the domestic battery. The amount of the
17 restitution shall equal the actual expenses of the
18 domestic violence shelter in providing housing and any
19 other services for the victim and any other family or
20 household members living at the shelter. If a defendant
21 fails to pay restitution in the manner or within the time
22 period specified by the court, the court may enter an
23 order directing the sheriff to seize any real or personal
24 property of a defendant to the extent necessary to
25 satisfy the order of restitution and dispose of the
26 property by public sale. All proceeds from such sale in
27 excess of the amount of restitution plus court costs and
28 the costs of the sheriff in conducting the sale shall be
29 paid to the defendant.
30 (c) In cases where more than one defendant is
31 accountable for the same criminal conduct that results in
32 out-of-pocket expenses, losses, damages, or injuries,
33 each defendant shall be ordered to pay restitution in the
34 amount of the total actual out-of-pocket expenses,
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1 losses, damages, or injuries to the victim proximately
2 caused by the conduct of all of the defendants who are
3 legally accountable for the offense.
4 (1) In no event shall the victim be entitled
5 to recover restitution in excess of the actual
6 out-of-pocket expenses, losses, damages, or
7 injuries, proximately caused by the conduct of all
8 of the defendants.
9 (2) As between the defendants, the court may
10 apportion the restitution that is payable in
11 proportion to each co-defendant's culpability in the
12 commission of the offense.
13 (3) In the absence of a specific order
14 apportioning the restitution, each defendant shall
15 bear his pro rata share of the restitution.
16 (4) As between the defendants, each defendant
17 shall be entitled to a pro rata reduction in the
18 total restitution required to be paid to the victim
19 for amounts of restitution actually paid by
20 co-defendants, and defendants who shall have paid
21 more than their pro rata share shall be entitled to
22 refunds to be computed by the court as additional
23 amounts are paid by co-defendants.
24 (d) In instances where a defendant has more than
25 one criminal charge pending against him in a single case,
26 or more than one case, and the defendant stands convicted
27 of one or more charges, a plea agreement negotiated by
28 the State's Attorney and the defendants may require the
29 defendant to make restitution to victims of charges that
30 have been dismissed or which it is contemplated will be
31 dismissed under the terms of the plea agreement, and
32 under the agreement, the court may impose a sentence of
33 restitution on the charge or charges of which the
34 defendant has been convicted that would require the
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1 defendant to make restitution to victims of other
2 offenses as provided in the plea agreement.
3 (e) The court may require the defendant to apply
4 the balance of the cash bond, after payment of court
5 costs, and any fine that may be imposed to the payment of
6 restitution.
7 (f) Taking into consideration the ability of the
8 defendant to pay, the court shall determine whether
9 restitution shall be paid in a single payment or in
10 installments, and shall fix a period of time not in
11 excess of 5 years, not including periods of
12 incarceration, within which payment of restitution is to
13 be paid in full. Complete restitution shall be paid in as
14 short a time period as possible. However, if the court
15 deems it necessary and in the best interest of the
16 victim, the court may extend beyond 5 years the period of
17 time within which the payment of restitution is to be
18 paid. If the defendant is ordered to pay restitution and
19 the court orders that restitution is to be paid over a
20 period greater than 6 months, the court shall order that
21 the defendant make monthly payments; the court may waive
22 this requirement of monthly payments only if there is a
23 specific finding of good cause for waiver.
24 (g) The court shall, after determining that the
25 defendant has the ability to pay, require the defendant
26 to pay for the victim's counseling services if:
27 (1) the defendant was convicted of an offense
28 under Sections 11-19.2, 11-20.1, 12-13, 12-14,
29 12-14.1, 12-15 or 12-16 of the Criminal Code of
30 1961, or was charged with such an offense and the
31 charge was reduced to another charge as a result of
32 a plea agreement under subsection (d) of this
33 Section, and
34 (2) the victim was under 18 years of age at
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1 the time the offense was committed and requires
2 counseling as a result of the offense.
3 The payments shall be made by the defendant to the
4 clerk of the circuit court and transmitted by the clerk
5 to the appropriate person or agency as directed by the
6 court. The order may require such payments to be made
7 for a period not to exceed 5 years after sentencing, not
8 including periods of incarceration.
9 (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.
12 (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
16 shall be revoked unless the court shall find that the
17 offender has had the financial ability to make
18 restitution, and he has wilfully refused to do so. When
19 the offender's ability to pay restitution was established
20 at the time an order of restitution was entered or
21 modified, or when the offender's ability to pay was based
22 on the offender's willingness to make restitution as part
23 of a plea agreement made at the time the order of
24 restitution was entered or modified, there is a
25 rebuttable presumption that the facts and circumstances
26 considered by the court at the hearing at which the order
27 of restitution was entered or modified regarding the
28 offender's ability or willingness to pay restitution have
29 not materially changed. If the court shall find that the
30 defendant has failed to make restitution and that the
31 failure is not wilful, the court may impose an additional
32 period of time within which to make restitution. The
33 length of the additional period shall not be more than 2
34 years. The court shall retain all of the incidents of
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1 the original sentence, including the authority to modify
2 or enlarge the conditions, and to revoke or further
3 modify the sentence if the conditions of payment are
4 violated during the additional period.
5 (j) The procedure upon the filing of a Petition to
6 Revoke a sentence to make restitution shall be the same
7 as the procedures set forth in Section 5-6-4 of this Code
8 governing violation, modification, or revocation of
9 Probation, of Conditional Discharge, or of Supervision.
10 (k) Nothing contained in this Section shall
11 preclude the right of any party to proceed in a civil
12 action to recover for any damages incurred due to the
13 criminal misconduct of the defendant.
14 (l) Restitution ordered under this Section shall
15 not be subject to disbursement by the circuit clerk under
16 Section 27.5 of the Clerks of Courts Act.
17 (m) A restitution order under this Section is a
18 judgment lien in favor of the victim that:
19 (1) Attaches to the property of the person
20 subject to the order;
21 (2) May be perfected in the same manner as
22 provided in Part 3 of Article 9 of the Uniform
23 Commercial Code;
24 (3) May be enforced to satisfy any payment
25 that is delinquent under the restitution order by
26 the person in whose favor the order is issued or the
27 person's assignee; and
28 (4) Expires in the same manner as a judgment
29 lien created in a civil proceeding.
30 When a restitution order is issued under this
31 Section, the issuing court shall send a certified copy of
32 the order to the clerk of the circuit court in the county
33 where the charge was filed. Upon receiving the order,
34 the clerk shall enter and index the order in the circuit
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1 court judgment docket.
2 (n) An order of restitution under this Section does
3 not bar a civil action for:
4 (1) Damages that the court did not require the
5 person to pay to the victim under the restitution
6 order but arise from an injury or property damages
7 that is the basis of restitution ordered by the
8 court; and
9 (2) Other damages suffered by the victim.
10 The restitution order is not discharged by the completion
11 of the sentence imposed for the offense.
12 A restitution order under this Section is not discharged
13 by 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
16 of the Code of Civil Procedure.
17 (Source: P.A. 88-237; 89-198, eff. 7-21-95; 89-203, eff.
18 7-21-95; 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-689,
19 eff. 12-31-96.)
20 (730 ILCS 5/5-6-2) (from Ch. 38, par. 1005-6-2)
21 Sec. 5-6-2. Incidents of Probation and of Conditional
22 Discharge.
23 (a) When an offender is sentenced to probation or
24 conditional discharge, the court shall impose a period under
25 paragraph (b) of this Section, and shall specify the
26 conditions under Section 5-6-3.
27 (b) Unless terminated sooner as provided in paragraph
28 (c) of this Section or extended pursuant to paragraph (e) of
29 this Section, the period of probation or conditional
30 discharge shall be as follows:
31 (1) for a Class 1 or Class 2 felony, not to exceed
32 4 years;
33 (2) for a Class 3 or Class 4 felony, not to exceed
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1 30 months;
2 (3) for a misdemeanor, not to exceed 2 years;
3 (4) for a petty offense, not to exceed 6 months.
4 Multiple terms of probation imposed at the same time
5 shall run concurrently.
6 (c) The court may at any time terminate probation or
7 conditional discharge if warranted by the conduct of the
8 offender and the ends of justice, as provided in Section
9 5-6-4.
10 (d) Upon the expiration or termination of the period of
11 probation or of conditional discharge, the court shall enter
12 an order discharging the offender.
13 (e) The court may extend any period of probation or
14 conditional discharge beyond the limits set forth in
15 paragraph (b) of this Section upon a violation of a condition
16 of the probation or conditional discharge, or for the payment
17 of an assessment required by Section 10.3 of the Cannabis
18 Control Act or Section 411.2 of the Illinois Controlled
19 Substances Act, or for the payment of the order to make
20 restitution as provided by Section 5-5-6 of this Code.
21 (Source: P.A. 86-929; 87-772; 87-895.)