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| Public Act 094-0148 |
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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 | ||||
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 | ||||
or knowingly
without legal justification by any means:
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(1) Causes bodily harm to any family or household | ||||
member as defined in
subsection (3) of Section 112A-3 of | ||||
the Code of Criminal Procedure of 1963, as
amended;
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(2) Makes physical contact of an insulting or provoking | ||||
nature with any
family or household member as defined in | ||||
subsection (3) of Section 112A-3
of the Code of Criminal | ||||
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 | ||||
12-3.2) or violation
of an order of protection (Section 12-30), | ||||
or any prior conviction under the
law of another jurisdiction | ||||
for an offense which is substantially similar.
Domestic battery | ||||
is a Class 4 felony
if the
defendant has any prior conviction | ||||
under this Code for first degree murder
(Section 9-1), attempt | ||||
to
commit first degree murder (Section 8-4), aggravated | ||||
domestic battery (Section
12-3.3), aggravated battery
(Section | ||||
12-4), heinous battery (Section 12-4.1), aggravated battery | ||||
with a
firearm (Section 12-4.2), aggravated battery of a child | ||||
(Section 12-4.3),
aggravated battery of
an unborn child | ||||
(Section 12-4.4), aggravated battery of a senior citizen
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(Section 12-4.6), stalking (Section 12-7.3), aggravated | ||||
stalking (Section
12-7.4), criminal sexual assault (Section | ||||
12-13), aggravated criminal sexual
assault
(12-14), kidnapping | ||
(Section 10-1), aggravated kidnapping (Section 10-2),
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predatory criminal sexual assault of a child (Section 12-14.1), | ||
aggravated
criminal sexual abuse (Section 12-16), unlawful | ||
restraint (Section 10-3),
aggravated unlawful restraint | ||
(Section 10-3.1), aggravated arson (Section
20-1.1), or | ||
aggravated discharge of a firearm
(Section 24-1.2), or any | ||
prior conviction under the law of another
jurisdiction for any | ||
offense that is substantially similar to the offenses
listed in | ||
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 | ||
to any other
sentencing alternatives, for any second or | ||
subsequent conviction of violating this
Section, the
offender | ||
shall be mandatorily sentenced to a minimum of 72
consecutive | ||
hours of
imprisonment. The imprisonment shall not be subject to | ||
suspension, nor shall
the person be eligible for probation in | ||
order to reduce the sentence.
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(c) Domestic battery committed in the presence of a child. | ||
In addition to
any other sentencing alternatives, a defendant | ||
who commits, in the presence of
a child, a felony domestic | ||
battery (enhanced under subsection
(b)), aggravated domestic | ||
battery (Section 12-3.3),
aggravated battery (Section 12-4), | ||
unlawful restraint (Section
10-3), or aggravated unlawful | ||
restraint (Section 10-3.1) against a family or
household | ||
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 | ||
minimum imprisonment
of 10 days or perform 300 hours of | ||
community service, or both. The defendant
shall further be | ||
liable for the cost of any counseling required for the child
at | ||
the discretion of the court in accordance
with subsection (b) | ||
of Section 5-5-6 of the Unified Code of Corrections.
For | ||
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 | ||
step-child or who is a minor child
residing
within or visiting | ||
the household of the defendant or victim. For purposes of this | ||
Section,
"in the presence of a child" means in the physical | ||
presence of a child or
knowing or having reason to know that a | ||
child is present and may see or hear an
act constituting one of | ||
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. | ||
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 | ||
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 | ||
the Criminal
Code of 1961 in which the person received any | ||
injury to their person or damage
to their 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
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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
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restitution is appropriate, the offender may be sentenced to | ||
make restitution.
If
the offender is sentenced to make | ||
restitution the Court shall determine the
restitution as | ||
hereinafter set forth:
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(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,
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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.
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(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
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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
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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 who is the child | ||
of the
offender or of the victim 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.
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(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
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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.
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(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,
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proximately caused by the conduct of all of the | ||
defendants.
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(2) As between the defendants, the court may | ||
apportion the restitution
that is payable in | ||
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 | ||
the restitution,
each defendant shall bear his pro rata | ||
share of the restitution.
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(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.
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(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.
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(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.
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(f) Taking into consideration the ability of the | ||
defendant to pay,
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
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of 5 years, not including periods of incarceration, 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 | ||
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
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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
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good cause for waiver.
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(g) The court shall, after determining that the | ||
defendant has the
ability to pay, require the defendant to | ||
pay for the
victim's counseling services if:
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(1) the defendant was convicted of an offense under | ||
Sections 11-19.2,
11-20.1, 12-13, 12-14, 12-14.1, | ||
12-15 or 12-16 of the Criminal Code of
1961,
or was | ||
charged with such an offense and the charge was reduced | ||
to another
charge as a result of a plea agreement under | ||
subsection (d) of this Section,
and
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(2) the victim was under 18 years of age at the | ||
time the
offense was committed and requires counseling | ||
as a result of the offense.
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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. | ||
The order may require such payments to be made for a period | ||
not to
exceed 5 years after sentencing, not including | ||
periods of incarceration.
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(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.
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(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
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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
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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
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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
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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.
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(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
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Probation, of Conditional Discharge, or of Supervision.
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(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.
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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 | ||
27.5 of the
Clerks of Courts Act.
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(m) A restitution order under this Section is a | ||
judgment lien in favor
of
the victim that:
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(1) Attaches to the property of the person subject | ||
to the order;
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(2) May be perfected in the same manner as provided | ||
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 | ||
delinquent under the
restitution order by the person in | ||
whose favor the order is issued or the
person's | ||
assignee; and
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(4) Expires in the same manner as a judgment lien | ||
created in a civil
proceeding.
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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.
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(n) An order of restitution under this Section does not | ||
bar
a civil action for:
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(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
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(2) Other damages suffered by the victim.
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The restitution order is not discharged by the
completion | ||
of the sentence imposed for the offense.
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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.
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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.
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(Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00;
91-420, | ||
eff. 1-1-00; 92-16, eff. 6-28-01.)
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