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Public Act 097-0482
Public Act 0482 97TH GENERAL ASSEMBLY
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Public Act 097-0482
| | HB1689 Enrolled | LRB097 08260 RLC 48386 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Criminal Code of 1961 is amended by changing | Section 17-56 as follows:
| (720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
| (This Section may contain text from a Public Act with a | delayed effective date)
| Sec. 17-56. Financial exploitation of an elderly person or | a
person with a disability.
| (a) A person commits financial exploitation of an elderly
| person or a person with a disability when he or she stands in a
| position of trust
or confidence with the
elderly person or a | person with a disability
and he
or she knowingly and by
| deception or
intimidation obtains control over the property of | an elderly person or
a person
with a disability
or illegally | uses the assets or resources of an elderly person or a
person | with a disability.
| (b) Sentence. Financial exploitation of an elderly person | or a person
with a
disability is: (1) a Class 4
felony if the | value of the property is $300 or less, (2) a Class 3 felony if
| the value of the property is more than $300 but less than | $5,000, (3) a Class 2
felony if the value of the property is |
| $5,000 or more but less than
$50,000 $100,000, and (4) a Class | 1 felony if the value of the property is $50,000 $100,000 or | more
or if the elderly person is over 70 years of age and the | value of the
property is $15,000 or more or if the elderly | person is 80 years of age or
older and the value of the | property is $5,000 or more.
| (c) For purposes of this Section:
| (1) "Elderly person" means a person 60
years of age or | older.
| (2) "Person with a disability" means a person who
| suffers from a physical or mental impairment resulting from
| disease, injury, functional disorder or congenital | condition that impairs the
individual's mental or physical | ability to independently manage his or her
property or | financial resources, or both.
| (3) "Intimidation" means the communication to an | elderly person or a
person with a disability that he or she | shall be deprived of food and
nutrition,
shelter, | prescribed
medication or medical care and treatment.
| (4) "Deception" means, in addition to its meaning as | defined in Section
15-4 of this Code,
a misrepresentation | or concealment of material fact
relating to the terms of a | contract or agreement entered into with the
elderly person | or person with a disability or to the
existing or
| pre-existing condition of
any of the property involved in | such contract or agreement; or the use or
employment of any |
| misrepresentation, false pretense or false promise in
| order to induce, encourage or solicit the elderly person or
| person with
a disability to
enter into a contract or | agreement.
| The illegal use of the assets or resources of an
elderly | person or a person with a disability includes, but is not | limited
to, the misappropriation of those assets or resources | by undue influence,
breach of a fiduciary relationship, fraud, | deception, extortion, or
use of the assets or resources | contrary to law. | A person stands in a position of
trust and confidence with | an elderly person or person with a
disability when he (i) is a
| parent, spouse, adult child or other relative by blood or | marriage of the
elderly person or person with a disability, | (ii) is a joint
tenant or
tenant in common with
the elderly | person or person with a disability, (iii) has
a legal or
| fiduciary relationship
with the elderly person or person with a | disability, or (iv) is a financial
planning or investment | professional.
| (d) Limitations. Nothing in this Section shall be construed | to limit the remedies
available to the victim under the | Illinois Domestic Violence Act of 1986.
| (e) Good faith efforts. Nothing in this Section shall be | construed to impose criminal
liability on a person who has made | a good faith effort to assist the
elderly person or person with | a disability in the
management of his or her
property, but |
| through
no fault of his or her own has been unable to provide | such assistance.
| (f) Not a defense. It shall not be a defense to financial | exploitation of an elderly
person or person with a disability | that the accused reasonably believed
that the victim was
not an | elderly person or person with a disability.
| (g) Civil Liability. A person who is charged by information | or
indictment with the offense of financial exploitation of an | elderly person
or person with a disability and who fails or | refuses to return
the victim's property
within 60 days | following a written demand from the victim or the victim's
| legal representative shall be liable to the victim or to the | estate of the
victim in damages of treble the amount of the | value of the property
obtained, plus reasonable attorney fees | and court costs. The burden of
proof that the defendant | unlawfully obtained the victim's property shall be
by a | preponderance of the evidence. This subsection shall be | operative
whether or not the defendant has been convicted of | the offense.
| (Source: P.A. 95-798, eff. 1-1-09; 96-1551, eff. 7-1-11.)
| Section 10. The Unified Code of Corrections is amended by | changing Section 5-5-6 as follows:
| (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| (Text of Section after amendment by P.A. 96-1551)
|
| Sec. 5-5-6. In all convictions for offenses in violation of | the Criminal
Code of 1961 or of Section 11-501 of the Illinois | Vehicle Code in which the person received any injury to his or | her person or damage
to his or her real or personal property as | a result of the criminal act of the
defendant, the court shall | order restitution as provided in this Section. In
all other | cases, except cases in which restitution is required under this
| Section, the court must at the sentence hearing determine | whether restitution
is an appropriate sentence to be imposed on | each defendant convicted of an
offense. If the court determines | that an order directing the offender to make
restitution is | appropriate, the offender may be sentenced to make restitution.
| 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. 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. If
the offender is sentenced to make restitution | the Court shall determine the
restitution as hereinafter set | forth:
| (a) At the sentence hearing, the court shall determine | whether the
property
may be restored in kind to the | possession of the owner or the person entitled
to | possession thereof; or whether the defendant is possessed | of sufficient
skill to repair and restore property damaged; | or whether the defendant should
be required to make |
| restitution in cash, for out-of-pocket expenses, damages,
| losses, or injuries found to have been proximately caused | by the conduct
of the defendant or another for whom the | defendant is legally accountable
under the provisions of | Article V of the Criminal Code of 1961.
| (b) In fixing the amount of restitution to be paid in | cash, the court
shall allow credit for property returned in | kind, for property damages ordered
to be repaired by the | defendant, and for property ordered to be restored
by the | defendant; and after granting the credit, the court shall | assess
the actual out-of-pocket expenses, losses, damages, | and injuries suffered
by the victim named in the charge and | any other victims who may also have
suffered out-of-pocket | expenses, losses, damages, and injuries proximately
caused | by the same criminal conduct of the defendant, and | insurance
carriers who have indemnified the named victim or | other victims for the
out-of-pocket expenses, losses, | damages, or injuries, provided that in no
event shall | restitution be ordered to be paid on account of pain and
| suffering. If a defendant is placed on supervision for, or | convicted of,
domestic battery, the defendant shall be | required to pay restitution to any
domestic violence | shelter in which the victim and any other family or | household
members lived because of the domestic battery. | The amount of the restitution
shall equal the actual | expenses of the domestic violence shelter in providing
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| housing and any other services for the victim and any other | family or household
members living at the shelter. If a | defendant fails to pay restitution in
the manner or within
| the time period specified by the court, the court may enter | an order
directing the sheriff to seize any real or | personal property of a defendant
to the extent necessary to | satisfy the order of restitution and dispose of
the | property by public sale. All proceeds from such sale in | excess of the
amount of restitution plus court costs and | the costs of the sheriff in
conducting the sale shall be | paid to the defendant. The defendant convicted of
domestic | battery, if a person under 18 years of age was present and | witnessed the domestic battery of the
victim, is liable to | pay restitution for the cost of any counseling required
for
| the child at the discretion of the court.
| (c) In cases where more than one defendant is | accountable for the same
criminal conduct that results in | out-of-pocket expenses, losses, damages,
or injuries, each | defendant shall be ordered to pay restitution in the amount
| of the total actual out-of-pocket expenses, losses, | damages, or injuries
to the victim proximately caused by | the conduct of all of the defendants
who are legally | accountable for the offense.
| (1) In no event shall the victim be entitled to | recover restitution in
excess of the actual | out-of-pocket expenses, losses, damages, or injuries,
|
| proximately caused by the conduct of all of the | defendants.
| (2) As between the defendants, the court may | apportion the restitution
that is payable in | proportion to each co-defendant's culpability in the
| commission of the offense.
| (3) In the absence of a specific order apportioning | the restitution,
each defendant shall bear his pro rata | share of the restitution.
| (4) As between the defendants, each defendant | shall be entitled to a pro
rata reduction in the total | restitution required to be paid to the victim
for | amounts of restitution actually paid by co-defendants, | and defendants
who shall have paid more than their pro | rata share shall be entitled to
refunds to be computed | by the court as additional amounts are
paid by | co-defendants.
| (d) In instances where a defendant has more than one | criminal charge
pending
against him in a single case, or | more than one case, and the defendant stands
convicted of | one or more charges, a plea agreement negotiated by the | State's
Attorney and the defendants may require the | defendant to make restitution
to victims of charges that | have been dismissed or which it is contemplated
will be | dismissed under the terms of the plea agreement, and under | the
agreement, the court may impose a sentence of |
| restitution on the charge
or charges of which the defendant | has been convicted that would require
the defendant to make | restitution to victims of other offenses as provided
in the | plea agreement.
| (e) The court may require the defendant to apply the | balance of the cash
bond, after payment of court costs, and | any fine that may be imposed to
the payment of restitution.
| (f) Taking into consideration the ability of the | defendant to pay, including any real or personal property | or any other assets of the defendant,
the court shall | determine whether restitution shall be paid in a single
| payment or in installments, and shall fix a period of time | not in excess
of 5 years, except for violations of Sections | 16-1.3 and 17-56 of the Criminal Code of 1961, or the | period of time specified in subsection (f-1), not including | periods of incarceration, within which payment of
| restitution is to be paid in full.
Complete restitution | shall be paid in as short a time period as possible.
| However, if the court deems it necessary and in the best | interest of the
victim, the court may extend beyond 5 years | the period of time within which the
payment of restitution | is to be paid.
If the defendant is ordered to pay | restitution and the court orders that
restitution is to be | paid over a period greater than 6 months, the court
shall | order that the defendant make monthly payments; the court | may waive
this requirement of monthly payments only if |
| there is a specific finding of
good cause for waiver.
| (f-1)(1) In addition to any other penalty prescribed by | law and any restitution ordered under this Section 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 in accordance with | the provisions of this subsection (f-1) 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. As used in | this subsection (f-1) "long-term physical health care" | includes mental health care.
| (2) The victim's estimate of long-term physical health | care costs may be made as part of a victim impact statement | under Section 6 of the Rights of Crime Victims and | Witnesses Act or made separately. The court shall enter the | long-term physical health care restitution order at the | time of sentencing. An order of restitution made under this | subsection (f-1) 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. The | order may exceed the length of any sentence imposed upon | the defendant for the criminal activity. The court shall | include as a special finding in the judgment of conviction | its determination of the monthly cost of long-term physical | health care.
|
| (3) After a sentencing order has been entered, the | court may from time to time, on the petition of either the | defendant or the victim, or upon its own motion, enter an | order for restitution for long-term physical care or modify | the existing order for restitution for long-term physical | care as to the amount of monthly payments. Any modification | of the order shall be based only upon a substantial change | of circumstances relating to the cost of long-term physical | health care or the financial condition of either the | defendant or the victim. The petition shall be filed as | part of the original criminal docket.
| (g) In addition to the sentences provided for in | Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13,
12-14, | 12-14.1, 12-15, and 12-16, and subdivision (a)(4) of | Section 11-14.4, of the Criminal Code of 1961, the court | may
order any person who is convicted of violating any of | those Sections or who was charged with any of those | offenses and which charge was reduced to another charge as | a result of a plea agreement under subsection (d) of this | Section 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.
| The payments shall be made by the defendant to the |
| clerk of the circuit
court
and transmitted by the clerk to | the appropriate person or agency as directed by
the court. | Except as otherwise provided in subsection (f-1), the
order | may require such payments to be made for a period not to
| exceed 5 years after sentencing, not including periods of | incarceration.
| (h) The judge may enter an order of withholding to | collect the amount
of restitution owed in accordance with | Part 8 of Article XII of the Code of
Civil Procedure.
| (i) A sentence of restitution may be modified or | revoked by the court
if the offender commits another | offense, or the offender fails to make
restitution as | ordered by the court, but no sentence to make restitution
| shall be revoked unless the court shall find that the | offender has had the
financial ability to make restitution, | and he has wilfully refused to do
so. When the offender's | ability to pay restitution was established at the time
an | order of restitution was entered or modified, or when the | offender's ability
to pay was based on the offender's | willingness to make restitution as part of a
plea agreement | made at the time the order of restitution was entered or
| modified, there is a rebuttable presumption that the facts | and circumstances
considered by the court at the hearing at | which the order of restitution was
entered or modified | regarding the offender's ability or willingness to pay
| restitution have not materially changed. If the court shall |
| find that the
defendant has failed to make
restitution and | that the failure is not wilful, the court may impose an
| additional period of time within which to make restitution. | The length of
the additional period shall not be more than | 2 years. The court shall
retain all of the incidents of the | original sentence, including the
authority to modify or | enlarge the conditions, and to revoke or further
modify the | sentence if the conditions of payment are violated during | the
additional period.
| (j) The procedure upon the filing of a Petition to | Revoke a sentence to
make restitution shall be the same as | the procedures set forth in Section
5-6-4 of this Code | governing violation, modification, or revocation of
| Probation, of Conditional Discharge, or of Supervision.
| (k) Nothing contained in this Section shall preclude | the right of any
party to proceed in a civil action to | recover for any damages incurred due
to the criminal | misconduct of the defendant.
| (l) Restitution ordered under this Section shall not be
| subject to disbursement by the circuit clerk under Section | 27.5 of the
Clerks of Courts Act.
| (m) A restitution order under this Section is a | judgment lien in favor
of
the victim that:
| (1) Attaches to the property of the person subject | to the order;
| (2) May be perfected in the same manner as provided |
| in Part 3 of Article
9 of the Uniform Commercial Code;
| (3) May be enforced to satisfy any payment that is | delinquent under the
restitution order by the person in | whose favor the order is issued or the
person's | assignee; and
| (4) Expires in the same manner as a judgment lien | created in a civil
proceeding.
| When a restitution order is issued under this Section, | the issuing court
shall send a certified copy of the order | to the clerk of the circuit court
in the county where the | charge was filed. Upon receiving the order, the
clerk shall | enter and index the order in the circuit court judgment | docket.
| (n) An order of restitution under this Section does not | bar
a civil action for:
| (1) Damages that the court did not require the | person to pay to the
victim under the restitution order | but arise from an injury or property
damages that is | the basis of restitution ordered by the court; and
| (2) Other damages suffered by the victim.
| The restitution order is not discharged by the
completion | of the sentence imposed for the offense.
| A restitution order under this Section is not discharged by | the
liquidation of a person's estate by a receiver. A | restitution order under
this Section may be enforced in the | same manner as judgment liens are
enforced under Article XII of |
| the Code of Civil Procedure.
| The provisions of Section 2-1303 of the Code of Civil | Procedure,
providing for interest on judgments, apply to | judgments for restitution entered
under this Section.
| (Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09; | 96-1551, eff. 7-1-11.)
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Effective Date: 1/1/2012
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