Public Act 097-0482
 
HB1689 EnrolledLRB097 08260 RLC 48386 b


  
    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

    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.)


Effective Date:  1/1/2012